The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1898-01-21

! difference in climatic conditions or
t geographical position can operate to
! deprive one of right Of property vest
ed in him by well settled rule of COM
mon law. The mere fact that the ap-
peIlants will not be able to occupy or
cultivate their lands as they hereto
fore have done, unless they can irri-
gate them with water taken from the
river, is no sufficient reason for de-
priving the respondents, who settled
laws of the United States, Of the nat
ural rights incident to their more ad-
vantageous location. The necessities
of one man, or any number of men,
cannot justify the taking Of another's
property without his consent, and
without compensation. If it be true,
as claimed by appellants, that, if the
Judgment Of the court below is affirmed,
their lands will again become a barren
waste, and cease to blossom as the
rose it is equally true that, if the
waters of the river are diverted from
its channel, the premises of the re-
spondents will become unproductive
and utterly worthless"
a well-known test book upon ele-
mentary law says upon this subject:
Every proprietor Of lands on the
banks Of river has naturally an equal
right to the use of the water which
flows in the stream adjacent to his
lands, as it was wont to run, without
diminution or alteration"
In some recent cases the supreme
court of the United States says:
"a riparian proprietor of lands Dor
dering upon a running stream has a
right to the flow of it's waters as a
natural incident to his estate, and they
cannot be lawfully diverted against his
consent.
by the common law, the riperian
owner of a stream not navigable takes
the land to the center of the stream,
and such owner has the right to the
use of the water flowing over the land
as an lnClOenL TO MS estate
These quotations will be sufficient to
show our readers the law as decided by
our courts. The riparian rights of the
land owners along the Arkansas river
in Sumner, Sedgwick, Reno and other
counties are prior in point of time, by
many years, to any rights of those who
baya concentrated tho 1Uatar of tha
river for irrigation purposes in the
state of Colorado. If the farmers of
Colorado claim the right to use the
water Of a naturally flowing stream for
ers of these counties of Kansas can
also claim these same waters for ripar-
ian purposes, and according to these
cases from which these extracts are
taken, the rights Of the Kansas farm
ers are prior in time and paramount in
authority. AS we understand it, the
water of riparian lands is as much
part of the property as is the soil, and
that this water can no more be ap-
propriated and taken from the owner
of the property than can the land be
appropriated and taken without COM
pensation and due course of law. If
these cases state the law correctly, as
applied to these facts, then the ripar
ian farmers in Kansas have a right to
complain that the waters of the Arkan-
sas river are now being diverted for
non-riparian purposes. If the appro-
priators of this water for purposes of
in Colorado point to statu-
tory or constitutional authority in that
state as the basis of their rights. cannot
the farmers of Kansas claim that these
later rights are subject to their prior
riparian rights? 1t seems from these
cases that the courts have already de
cided in favor of the Kansas farmers,
as against the subsequent irrigators in
Colorado. Whether they have lost any
of their rights by lack of attention or
lapse of time, we are unable to say |
That is a matter entirely for the courts |
to decide. But one thing is apparent, |
that if the farmers living along the Ar
kansas river and owning lands made |
productive by its waters and nourished |
by its undercurrents, do not want the |
bed of the stream to become a shifting |
bank of dry sand, and do not want the |
underflow to be turned into irrigating |
bitches in Colorado, they win have to |
protect themselves and their property |
rights, for either the devil or the drouth |
will catch the hindmost.