Idaho news. (Blackfoot, Idaho) 1887-1891, 1890-05-31

this water, or any part of it, for agri- |
cultural or for any other purpose, all |
of the plaintiffs are out of court; and
J ct the Judgment is IN favor of all of
them jointly. 1t is therefore impoS-
sible, in this case, to reach what might
otherwise be the principal and more
question involved in the
namely, whether such a
claim as the plaintiffs made to abso-
lutte ownership for agricultural pur.
poses of the waters of natural stream
of the country, to the entire exclusion
of all other settlers ON the same
stream, whose lands require irrigation,
and to whom water is one of the
necessaries of life, and through whose
lands that stream may run, can, under
our laws, be maintained. The facts
found not being sufficient to sustain
the conclusions of law or judgment,
1t follows that the judgment as to the
appellant should be reversed.
There is NO room for any presump-
ton, that other prerequisites to a
valid Judgment existed. Indeed, it is
shown atfirmatively that the necessary
grounds did not exist. Here, then, |
think this case should end. What
may be further said ON the question
OF rights Of parties diverting water
upon lands for purposes OF irrigation
can have 40 binding force. There is
no case before the court warranting a
discussion of the subject. Such dis
cussion may be taken as oBrrER,
merely. But the majority opinion goes
into it, and | may be excused for fol
lowing its example, So far as the little
time allowed me will permit
l. The assumptions, in the majority
opinion, of facts as drawn from tile
findings, or as properly deducible
from those findings, |, for the most
part, controvert. The findings OF fact
are hereinbefore stated in full, and
they speak tor themselves.
2. Nor do / admit that posting a
notice on stream, prior to 1881,
claiming 500 inches OF water, was
ian act Of appropriation" 1t had
nothing to do with ian act Of appro-
priation on the public domain" That
could only be done on the public
domain by having lands to irrigate;
SECOND, BY actually diverting waters
upon it. By means sufficient to con.
duct all the water actually appropri.
ated There is nothing Of that kind
in this case, and the court is not war
ranted in assuming that there is.
3. The majority opinion pronounces
the claim of person whose lands lie
upon stream as resting on the
"phantom Of riparian rights. deny
that under the laws of this territory
RIPARIAN right" are a phantom,
unless unlawfully and uujustly made
SO. The doctrine Of riparian rights is
part Of the common law; and the
common law is the law Of tnis terri
tory, except as the statute steps in
and repeats or changes it, Section Is
of the Revised Statutes so declares
1t provides that .sthe common law oil
England so far as it is not repugnant
to or inconsistent with the constitu
ton or laws Of the United States, il
all cases not provided for in thes,
Revised Statutes, is the rule Of de
cl5lOn IN all the courts in this terri
tory" The United States statutes
have in some respects modified tn,
comnon-law rule Of riparian rights
on the public domain where custom,
are shown 10 exist, and not otherwise
No customs are pretended here. Ia
deed, all customs are studiously ~
nored. The statutes of the TERRITORY
previous to 1881 had no provision
whatever ON the subject of water
rights. But in 1881 what are equity
alent to common-law water.rightl
we're in some respects expressly az
firmed, only those rights were enlarg
ed Section 31s, Rev. st., provides
that "all persons, companies, and cor
porations owning or claiming AM
tonJs o;trotoJ -, H. L.-f,a -. Z. Al