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

hepsive-a little stronger, in some
respects, in favor Of those needing
w&ter-than the common law Of ripar'
ian rights; but it leaves many OF those
rights intact, II is wrong, then To
designate these common.law rights as
a '.phantom. They are real, and the
interests of our territory demand that
they should be recognized
4. By the common law, running
water is not the subject OF ownership
No statute Of Idaho, nor Of congress,
either, makes it such, By custom,
when that is shown, person IN us
prior use may not be disturbed in its
use, providing, as Mr. Justice FIELD
says in Basey V, Gallagher, the custom
and claim under il are reasonable,
But that is as far as it goes, far
as any statute Of the United States
or of this territory goes. Our own
statutes are in accord with that view.
Rev. St. Idaho, 4 3lSs. In Basey v
Gallagher, 20 Wall. 6s3, Mr. Justice
FIELD SAYS that lin all such cases the
right Of the first appropriation, exer-
cised within reasonable limits, is
respected and enforced. We say with,
in reasonable limits; for this right %
water, like the right by prior occupan-
cy to mining ground - is not un-
restricted. Ii must be exercised with
reference TO the general condition Of
the country and the necessities Of the
people, and not so as Ia deprive a
whole neighborlDod or community ~
its use, and to vest an absolute mo
nopoly in single individual.
What does this judgment DO, but
to violate every provision Of the fore
going, seyerally and rs whUle2 Is
it reasonable to appropriate all the
waters of stream, even ifit contains
1000 inches, OF whatever il may be,
To irrigate "a piece OF land, With no
intitnation Of its description or
amount? Is it reasonable To allow
absolute and unrestricted ownership
in water diverted for purposes Of irri.
CATION, only, 20 be used as In this
case, for sale TO railroads and brick.
yards, or other purposes than irriga.
tion, and still deny to others their
natural, lawful, statutory rights Ia
any OF it2 Where are the reasonable
limits OF such claim? Is such a
claim in accord with 1.-The conditions
of the country and necessities Of the
people, when those people are fam.
ishing for water, and prccIuded from
using drop, though an abundance
runs past their doors? Does not this
Judgment establish "an absolute mo.
nopOly" OF the waters Of this stream?
Every one OF these questions carries
with it its own answer. do not pro
pose to pursue this argument, and
show that a great majority Of the
cases relied on to establish this doc
trine Of absolute ownership and cx
elusive monopoly in streams do moi
relate to the use Of water for agriuul
tural purposes at all, but that those
cases relate to diversions or use fol
mining purposes only. That fact NAV
be easily shown, or else that the case,
where they relate TO irrigation ar,
based upon mining cases. There ar,
few Of them that are not so founded
even Of those cited in the majorit,
opinion. The doctrine Of those cases
would prevent the settlement upor
lands depending on our natura
streams, and. as in the case at bar
would drive away half or more OF Tn,
settlers who have already settle,
there. This is not for the interest o
the territory, and to allow the exampl,
of this case to obtain will prove Diet
rimental in other ways than in de
creasing our population. The suffer
ing settlers will very soon resort i
the demoralizing aid OF the eve
present "Winchester" or revolver
People will not tolerate such unlay
full claims; and the sooner thoy ar
abandoned, or reduced within reason
able bounds, the better will It be 70
all. This Judgment should no ro,,,.,..