The Yellowstone journal. [volume] (Miles City, Mont.) 1893-1901, 1894-03-29
THE RIGHT TO THE USE OF WATER.
BY JAMES \. KERR.

lie at large. No man can legally secure
a monopoly of either in any given local
ity or district; neither can he, by pur-
chase or otherwise. acquire proprietary
right in either. The right TO the use is
the only right that can be acquired. and
this is not proprietary right, but simp-
ly an easement.
The only method in which any private
interest can be secured in either air.
light or water is by grant Of the sover-
eign; by long use. which presupposes
grant; or by statute. In this country
private interest IN either is secured only
by act Of Congress. by statutes Of the
various state legislatures, or by prescrip.
ton.
While the use OF running water may
belong to a particular individual, the
thing itself the corpus of the water
can never be appropriated. The right
10 the use of the water is restricted to
the reasonable wants 81 the Individual
or company. and is held subject to the
great fundamental principle Of mot in.
terfering with the rights Of others."1J
In the arid region, water may be filed
upon and appropriated for beneficial
public use. and not for purely private
purpose; that is, the persons or company
filing upon and appropriating a certain
quantity Of water acquire a right to the
public beneficial use Of the water filed
upon, and appropriated to the exclusion
Of all others in return for certain public
benefits conferred. But the rights thus
acquired. under statute. are merely an
easement in the use Of water and not an
ownership thereof. Persons thus Cling
upon and dappropriating water are entitled
10 its use for pnblic beneficial purpose.
but do not obtain a private ownership
thereof i2l-they cannot exercise any pro-
prietary right or power over the water
itself
Irrigation canal companies differ in
this respect from many other corpor.
atoms carrying with them a public bene-
ficial use. such as railroad companies.
for instance. The reason why canal
companies differ from railroads IN this
respect is because of the difference in
the nature Of the substances or objects
with which they deal. Railroads deal
mainly with land, which is subject to
private ownership and control, and they
secure either an easement in the use Of
Z he. ls..aA ka 81 ~ ha ls.fl rAlf
by condemnation under the power OF
eminent domain; while canal compa lies
deal and have to do principally with
water. which is not subject to private
ownership and control But even land
cannot be taken 10y condemnation under
the power Of eminent domain or other
wise for purely private purpose: that
is, for purpose that does not carry with
it public beneficial use. Where the
| public at large has not some interest in
the use to be made Of the land there can
be no condemnation thereof. Thus. a
man canIot condemn and take lands OF
another for his own private use. as for a
farm, or residence grounds. or hotel
site. or private park, although the gen
eral public may be interested that he
shall have farm to till or a house to
live in, 81 that he may not become a
public charge, or may be interested in
private parks and hotels. because these
are institutions purely for pirate pleas
ure and gain: but he may condemn and
take the land for public toll road. a
public toll canal. or the like. or even
for a private way.
So water cannot be appropriated and
taken for any use which is purely private
and does not carry with it any public
beneficial use; but il may be appropriat
ed for any public beneficial use. although
auxiliary to a privs.e enterprise and
private profit. Thus the use oi water
may be appropriated fo- manufacturing
purposes as to run sawmill. grst-
mill, a wooden mill and the like for al
though these businesses are purely pri-
vate and conducted for private gain. yet
there is public beneficial use attached
1 w cS~ouCS thC Puoit ~ ioS sc
need and must have lumber wherewith
to build houses, -four out OF which to
make bread, and fabrics from which to
manufacture clothes. And water may
be appropriated by a farmer for domes
tic use and for watering stock. although
for private convenience and gain. notwith
standing the tact that such uee oo,
sumes the water. for the reason that
there is q public beneficial uss attacked
but he may not file upon and appropriate
water FOR the purpose Of boarding it,
use and Withdrawing that use from the
general public. the same az q misel
boards up and withdraws money from
the public and from general circulation.
Where persons or Company spprop
riate water in the arid region under the
statute and construct ditch for carry
1 \,