The Ketchum keystone. [volume] (Ketchum, Idaho) 1885-1899, 1889-12-28
WATER RIGHTS.

delivered q very aDle decision upon
the present vexed question of water
rights. 1t would seem from the
very full and exhaustive opinion
that the learned judge has spent
considerable time in his researches,
commencing with the common law
applicable to the subject and COM
ing down to the statutory founda-
ton of water rights. Judge Berry,
in passage Of his opinion, refers
to the comments Of Justice Field,
of the U. S. supreme court, on q
California case involving the ques-
ton of water rights. Judge Field
says:
Water is diverted to propel machinery
in fourmills, sawmills, and to irrigate
lands for agriculture, as we'll as to enable
miners to work their mining claims; aud
in all such cases the right of the first
appropriation exercised 1cithin reasonable
limits, is respected and enforced. We say
actthin reasonable limats; for this right to
water, like the prior occupation to MIN
ing grounds, is not unrestricted. 1t must
be exercised with reference to the general
condition Of the country, and the necessities
Of the people, and not so as to deprive a
whole neighborhood or community of its
use, and to give an absolute monopoly in
single individual.
This utterance," says Judge
Berry, "by the highest court in the
United States, demands special at
tention as being an authoritative
statement of the nature Of these
water rights on the public domain,
and the basis on which they rest
from a federal standpoint. AS to
their nature and the rules of con-
struction, there is in these words
little room for the "vested rights"
iron rule theory. They bring this
claim of absolute right down to a
recognition of the rights of the pub
lie to the rights and equities of
other settlers, and make them sub
ject to those rights and equities. "
Prior appropriations of water and
questions of "vested rights" have
been a source Of almost intermina-
BILE trouble and the cause Of expen-
sive and vexatious litigation.
The question of irrigation Of the
soil has become one of paramount
interest to the prosperity of the
country, and we believe that the inn
portant decision rendered by Judge
Berry upon the subject will event
ually prevent the undue monopo-
lizing diversion of streams of water,
and on the other hand restore to
bona fidc settlers living along or
adjacent to such streams an equita-
BILE distribution of the water for ir-
rigating and domestic purposes. We
regret that lack of space prevents
us publishing the whole of this es-
timable decision, but believing it
will be of interest to our readers
we give below the general conclu-
sions arrived at in the considera-
ton of the question:
1st. That customs affirmed by Act of
Congress, july 26, 1865, gave no absolute
and fixed right of property in the water
in the natural stream when used for irri-
: eating purposes, but only privilege to
use the same in reasonable manner, and
, subject always to the demands OF pubic
interests, and of public policy; and sub
ject also 10 the natural rights and equi-
ties of other persons.
I'd. That such rights or privileges eau
3 only attach upon lands while the same
4 are q part of the public domain; aud can
: not have their inception on lands claimed
under the Land laws of the United State
for the disposal of the public lands.
Sd. That such customs and Act are
not to be construed as fundamental laws
1 of property, but rather as rules for the
r use of property held only by possession.
, 4th. That the rights Of none Of the
parties litigant in this action are created
or exist under the Act of 1866, or by the
customs thereby acknowledged.
5th. That water rights, having their
2 beginning on lands segregated from the
public domain, are derived from the com
p mon law as modified By the statutes OF
this territory.
9th. That the common law of RIPARIAN
rights has been modified by statute; and
that BY such statutes the privileges Of RI
{, parian proprietors for irrigation have
been extended to the proprietors of all
lands sufficiently near to u stream reas
onably to he irrigated from it.
7th That the natural streams of the
country are the subjects OF public and
: common right; and that private owner
4 ship in their waters, beyond restricted
D and special privilege to use the same,
cannot be had under our laws.
> 9th. That the right to divert waters
from a stream for sale for irrigating pur-
poses, subject to the necessities of agri-
cultural pursuits, may be had; but that
: the foundation of such privileges is dis
f tinct from that Of diversion directly for
E irrigation, and must be classed with di
. version for the purpose of sale or use for
mining purposes; or the privilege must
be established by appropriate legislation
9Th. That all proprietors of lands on
d or near natural streams have right to
: some of the waters of those streams fol
a irrigating and domestic purposes; but
: that iu its division or distribution custom
, and priority of use may be recognized.
) 10th. That the statutes OF Idaho. on
:. the subject of water notices and priority
/ Of use, are not laws of property, but that
I they are in the nature of police regula'
tons merely, and as such, but subject t.
the laws of property, arc operative and
l,;c1;nr