Idaho news. (Blackfoot, Idaho) 1887-1891, 1889-12-14
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ENTITLED to the use OF the waters ~
such stream for the PURPOSE Of nm.
GAZING the lands 50 held or claimed y
That Is the whole OF that section lie
language is severely simple and plain
NO commentary as To Its main fea.
lures can make its meaning more
plain. Its date is February 10. 1881
what was the statute on that subject
previous to that date, or whether
There was any, have not the means
at hand to determine. II there were
no corresponding statute up to that
time, the lawful use Of water for irri.
gazing purposes, on private property.
was under the common law as above
stated; during the time from July 2.
1866 TO the date OF this law, what
squatters rights accrued By custom
u any, we need not mere inquire.
We may return TO the statute and
note some Of its effects upon the com.
mon law Of riparian rights.
The first notable change Is 10
make every landholder in the vicinity
OF stream QUASI riparian proprie.
tor II declares him entitled to the
US" ofthe water TO irrigate his land
] understand the words "in the yicin-
ny 70 mean, that the lands must be
near enough TO the stream TO be rea-
sonably irrigated from il. In deiermin,
lug It's reasonableness, doubtless other
considerations besides distance mere.
~, must be noticed. But the statute
Is a forcihle recognition by the law
making power Of the truth that the
natural streams OF the country are
naturally appnitenant to all the lands
IN the country which they can most
reasonably benefit
2 After enlarging the number en-.
TITLED 10 those rights, il recognizes
the common law rule that the streams
are subjects Of the common right OF
all entitled TO use their waters.
3 II declares the main purpose for
which they may be used. That pur-
/. pose pr.elndcs the users from return.
! Ing the waters. nndiminished TO the
stream. and, Of course the user is ex-
oGsed from that part Of the common
law obligation, except that il does
not authorize him 10 waste Il, or to
appropriate Il TO other purposes, than
/ farming purposes.
( II insurcs TO every proprietor
some part 81 the common supply; and
standing alone would probably en-
title each one 10 an equal share, or At
least proportional with the lands Ia
i've irrigated. But IL leaves the pro
portion each Is entitled TO receive
open 10 the operation Of other statutes
regulating distribution.
5 These changes are in strict &C
cord with the interests aud needs oi
the country, and future public policy
and the necessities Of agriculture il
this Territory impcra,iycly demant
them.
Bot the statutes 60 further, section
| 5lss provides. lin case the volume
~ water in any stream Is not sutii
cicnt 10 supply continually the wants
for irrigating purposes, Of the owner
or proprietors Of lands In any distric
or ncighborhood In which CUSTOMS
EXIST ron DISTRIBUTION, undo
direction Of persons recognized Z
have authority. waters il
such case must be held 10 be A CON
mon gi0Hr In those accustomed to
participation IN the use and enjoy
mrnt Of such distribution; and sncl
customs must be upheld, bu
this section does not affect any prio
vested rights Those "prior vcste'
rights evidently tackled on TO tn
end OF the section by some fearfu
interested party, must be those men
toned in the Act Of 1866, for Their
are no other such rights under an,
statute adverse to our view Of the Law
unlcss Il be under the regulation 70
the distribution Of water, chapter
title . OF our statutes. But that is
noliee regulation and not law Q
property. A regulation Of this natur
can NOT have the effect Of nullifyin
what hy common law and other sta
utes are really property rights. I'M
chapter may and must guide in tn
apportionment OF water, but u mus
10 construed in connection with oths
parts Of che same title, and notaol
WITH section 3lsO, of chapter 2 on
provision will not be allowed to d'
feat another, where rs In TINS cas-
both NAV be operative together
Though different proportions
water may be awarded on the oas !,
Of prior use, this water must stu
common, and one can not cut on an
entirely exclude another from n
reasonable share.
Assuming that these proportions u
81 ho fixed ON the basis OF custom