El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-07-03
INJUNCTION DISSOLVED.
CONTINUED from page l

through which such waters run.
We might close the opinion
at this point, but the import
ant interests and questions involved
III this cause perhaps require more
extended consideration.
The riparian rights of the United
States were surrendered in 1866 Or. S.
2339J. Prior to that time it had be
come established that the common law
doctrine OF riparian rights was untitled
| to the conditions in the far west, AID
new rules had grown up under local
legislation and customs, more nearly
analogous to the civil law. Recogniz-
ing That the public domain could not
be utilized for agricultural and mining
purposes without the use of water
applied by artificial means, and that
vast interests had grown up under the
presumed license Of the federal govern
meuI to the use Of such waters, con-
gress CONFIRMED the right of prior APP
preparation OF waters by the act above
men TONED where the same ARE rec
Ognlzed and acknowledged by the
local customs, laws and decisions of the
courts" (2339) The supreme court of
the United States in passing upon this
act observes, 1t is evideut that con-
gress intended, although the language
used is not happy, to recognize as vaiid
use of the water, which had grown up
among the occupants Of the public
lands under the peculiar necessities of
their condition. AtcnisOn VS.. Peter
son 20 Wal. 501; Basey vs.. Gallager 20
Wal. GIL. And since 1870 patents for
land expressly except vested water
rights. OF course congress may re-
sumo its control, but there can be no
presumption OF an intent to take them
uiative power from doubtful express
slons. Repeals by implica ton are no
so favored. Congress could undoubt-
eoly preserve navigable streams by
leglslating against The use of their
commitments. But that power could not
be exercised against those private
rights which have become vested,
unless under the power of eminent
domain compensation be paid there
for.
Instead OF an intention to resume
such control, congress has manifest, q
d purpose to extend the largest liberty
OF use OF waters in the reclamation of
the arid region, and under local regu-
lative control. Following in line with
the act of 1866 the act of 1877 authoriz-
ed the entry of 0esert lands in the
arid region by those WHO Intend t. le-
cld IN them by conducting water upon
them. This act again distinctly re-
cognized the validity of the right OF
prior appropriation and also provided
that ''aii surplus water over and above
such actual appropriation and use to-
gether with the water of all lakes,
rivers and other sources of water sup
ply upon the public lands and not navi-
gable shall remain and be held free
Tor the appropriation and use of the
public for irrigation, mining and man
N "a N r. n TO yi.t
ing rights" This act Was limited to
states and territories in the arid re-
gion l Sup. r. 5. Z. 131) Colorado
wds included 10 1891 Il Sup. II. S $40
40 BY the act OF 1878 ian appropria
ton blil an investigation was directed
Is to the extent to w hlch the arid re-
siOn might beredeemed by irrig atom
provided for The selection of sizes Tor
reservoirs for the storage and utiliza-
ton of water for irrigation and the
prevention of overtiows, and that the
lands designated for reservoirs, ditch
es or canals, and all lands susceptible
of irrigation thei efrom be reserved
from the sale OF entry,I i Sup Il. 5. 69S.)
La 1870 the reservation from sale OF
entry of lands, except as TO reservoir
sites, was epealed-re5ervOir sites re-
NAMED segregated. Il Sap. Il. s. 19l-
1917 In the same year IL was provided
that patents for lald west OF lOOth Me-
ridan should reserve the right of way
for bitches and canals. Il sup. II, 5.
1922 In 1891 pubic lands were opened
private location for the right-of-way
to the extent of the ground occupied by
The water of the reservoir, cana ana
laterals and 30 feet of the margin. In
this act 1t Was provided tlat 1.-THE
privilege herein granted shalt net be
construed to Interfere with the control
of the water for irrigation and other
purposes under authority Of lhs resi-