Idaho news. (Blackfoot, Idaho) 1887-1891, 1889-12-14

ways safe presidents, We must con-
stantly bear in mind that here, pri-
marily, we are dealing with the inter-
ests and rights of farmers, with the
agricultural interest. But the agri-
culturalist also has his special neces-
stiles rs well rs the placer miner; and
we may be assured that the impress
of the farmers needs win be found
stamped upon our institution and rules
of law, as clearly as those of the plac-
er miner are stamped upon the laws of
California. And such we shall find to
be the fact in the laws of this Terri
tory. While the miners right to use
water, are wholly disconnected from
the ownership ot lands on which it is
to be used, is nearer under those laws,
if it be not in fact, a species of prop
erty in the nature of real estate; that
of the agriculturalist is more in the
nature of an easement, or incorporeal
hereditament, attached to the land
for which it is appropriated, giving
such land its value, but aside from
its use upon the land, of no practical
value. We shall see more of this
further along.
VESTED OR ACCRUED RIGHTS.
] 1t has been earnestly urged BY
learned counsel upon this trial, that
in determining these water rights, we
are not to consider the demands of
public interest, or policy; nor to give
heed to what may appear to be the
demands of equity; but that our sole
duty is to look anthem as the sub
jects of an infexible, absolute, and
fundamental law of property; as vest
ed and exclusive rights; to bow our
assent to this infexible rule of law,
and to let consequences take care OF
themselves. If we can find law OF
that nature governing these rights,
doubtless the position is well taken,
But is there in this case any such
! law of property?
Again | say, we are dealing witt
! the right to use water for irrlgatine
!. purposes. 1t is not even '.trunk'
: bitches we are considering, no
: bitches for running machinery Those
: belong to the department occupied by
the placer miner. or by any one who
may divert water for sale or profit
and not to irrigate specific lands; witt
! all such we have at present nothin!
: to do. The right if it exists at all
I must be found under the common
! : law, the laws of Congress, cor tn
: statutes of this Territory.
" ACT OF CONGRESS OF 1866.
;, United States statutes at large
e Vol. IA, page $50, section provides
IS THAT whenever, by priority of po:
d session, rights to the use of water 70
d mining, agricultural, manufacturing
j. or other purposes, have vested an
lie accrued, and the same are recognize,
ii and acknowledged by the local Gu:
ly toms, laws and the decisions of courts
IN the possessor and owner of such yes
E ed rights SHALL BE MAINTAINED an
s. protected in the same"
at This act is regarded as the mai
II statutory foundation of those right
e, But we shall see that it is not sue
is foundation, and has really little to d
ed with them, nor has it the force or e
lg feet of fundamental law of prope
ty; but is only afirmatory of the
ly recent and local customs which ha
ld then obtained on the public domain
OF and then only conditionally. The Gu
or toms eliminating in that act, con
an menced with the California miner
as we shall hereafter see. In cas-
mt decided in California in 1855, Tart
OF VS. Spring, the court says; 1.-THE Gu
to rent decisions OF this court, go
at establish, that the policy of this stat
al as derived from her legislation, is
,er permit settlers in all capacities to 0
nut cupy the PUBLIC LANDS. and by SUI
at occupation to acquire the right of u
raj disturbed enjoy ment against all Il
ter world but the true owner. In eviden
l of this, acts have been passed to pr
sct tect the possessor of agricultur
1t lands acquired by mere occupanc
WIS to license miners; to provide for Il
ed recovery of mining claims; recogni
as ing bitches which were known
ul-' divert the streams from their natur
al channels for mining purposes, al
lat other like character. This policy h
9TH been EXTENDED equally to all pu
suits, and no Partially has been ]
lly cognized, except in the single ca
ice where the rights of the AGRICULTURE
is IsT ARE MADE TO YIELD to the min
of when gold is discovered in his lane
1t The POLICY OF THE EXCEPTION
nee OBVIOUS" OF course it is obvious,
of the miners interests we're there
tie garded as paramount in important
ms, Mr.. Justice Field in commenting
our this case, Bassy VS. Gallagher,
10 Wallace TT g aQo oftou c,,,,+,,e, ~