Arizona weekly enterprise., 1890-08-16
A Montana Irrigation Decision
Rocky Mountain Husbandman


 Of all the questions that have arisen at this eventful age of our country to inter est and engage the public mind. tninduce the earnest inquiry of our legal fraternity and affect in most vital way the pros perity of our farmers that of the appro- priation and use of the waters of our streams is by far the most important. There is probably no matter before the public upon which there IS so much diver sity of opinion or upon which there are so few men that are thoroughly inform ed. S}ne believe absolutely in the theory of prior diversion of water from it's natural channel. others in actual prior appropriation. while very many cling to the old English doctrine of riparian ownership and there arc even some who contend for division of the natural flow of the water Of our streams without re- gard to priority of its appropriation. With vast diversity of opinion it is not to be wondered at that there were a great many law suits commenced last year to determine as to the right of settlers in certain waters. There were actions of this kind instituted in nearly every valley in Montana. Locally these all have a great interest involved, but this is prin- cipally a matter of facts to be determined by the evidence deduced. But the prin- ciple or principles that are to govern in the determining of these rights have gen eral interest. This we may consider, has at length been determined by the decis- ion of Judge D. M Durfee in the case of Patrick Meagher vs. Alex Glover, ct al, of Deer Lodge. This is the first decis- ion that has been given to the public since the recent water troubles began, and inasmuch as 1t involves all the lead ing points at issue in all the cases, the only doubt that can be entertained in re- gard to the final outcome of the many suits now pending rests on the concur renee of the supreme court in the opinion rendered. In the case in question the plaintiff claimed certain water by virtue of prior appropriation, and also all the water running in a certain stream and flowing across his land by virtue of the common law doctrine of reparian rights. The claim was set up to more water than was utilized, also to all the water on the riparian basis. The decision covers the whole case and if concurred in will be- come the basis of the settlement of the differences on the water question through out the state After careful revision of the riparian doctrine the document in question recites that the conclusion of the majority in the celebrated case of Lux vs. Haggin was reached through a special provision in the civil code of California which does exist in Montana, and cites the following by Chief Justice Hawley in the case of Barnes vs. Sabrunck as the basis of adjustment:
 No person can, by virtue of prior ap- propriation, claim or hold any more wa ter than is necessary for the purposes of the appropriation. Reason is the life of the law, and it would be unreasonable and unjust for any person to appropriate all the waters of a creek, when 1t was not necessary to use the same for the pur- poses of his appropriation. For the right to water Is not unrestricted; 1t must be exercised with reference to the general condition of the country and the necessi- ties of the people, and not so as to de- prive whole neighborhood or communi- ty of its use, and vest an absolute monop- oly ill single individual"
 The court essays no further enuncia- ton as to the law than this but proceeds to render its decree upon this principle in accordance with the facts as presented. It does not seem to be Set down in this case that the appropriation of Water for domestic purposes or for stock without the running of the stream aside into new channel would be considered an ap- propriation in the eyes of the law in Montana, yet we believe that such claim could be maintained notwithstanding the riparian theory is set aside There would of course be a vast difference in setting up claim of appropriation of and set ting up of a claim under the riparian doc Urine, which would maintain that the natural flow of stream must be of un diminished quantity and undeteriorated ill quality. Mir Pomeroy lp his work on riparian rights also says in referring to the statutes of Montana, Wyoming, Ida he, New Mexico, Arizona, etc..
 Under the statutes no proprietor de- rives any legal benefit or advantage from the fact that his land is immediately ad jacent to stream. Unless he has made an actual appropriation and diversion of it's waters for use on his own land, he Is liable to have, perhaps, the entire stream appropriated and diverted away for the benefit of a proprietor whose land is situ- ated any distance from the stream.
 This would seem to be at variance with our idea of water for stock and house. hold purposes, yet it is possible that it is not. Looking npon the trouble in Mon tana from Judge Durfee's standpoint, the only matter in doubt is the determination of the facts, and this being the case most of our people can form a pretty good idea of how their case in court will be deter mined in advance of the rendering of decision Water is the sole life of Mon tana agriculture, and everything pertain ing thereto is of vital importance: hence we take the first opportunity Of placing before our readers the result of the first case affecting the validity of our water rights and setting forth the principles up on which all water claims are based, be- lieving it 10 be of great value to every Montana farmer.