The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1898-10-23
doctrine, and thus sustaining the rights

doctrine, and thus sustaining the rights
Of the Kansas farmers.
But it is most earnestly insisted by the
learned counsel for appellants that the
common law doctrine touching riparian
rights is not applicable 70 the arid por-
tions of the state, and especially to Va
kima county; and this court is now urg-
ed to so decide, notwithstanding anthing
81 may heretofore have said to the con-
trary. The legislature of the territory
Of Washington in the year 1863 Qaws 1863
D. So enacted that the common law OF
England so far as is not repugnant to, or
Inconsistent with. the constitution and
Jaws Of the United States and the organ
ic act and laws OF Washington territory,
EhaT be the rule Of decision in all the
courts OF this territory. The language
Of this provision was changed by the
legislature in 1891 by emitting the words
of England substituting the word state
for territory and inserting the clause;
Nor incompatible with the institutions
and condition Of society in this state
Code Proc sec. 10S.) But the meaning
remains substantially the same. 1t thus
appears that the common law must De
our rule Of decision unless this case
falls within the EXCEPTIONS specified IN
the statute. Now the common law doc
trine declaratory Of riparian rights as
now generally understood by the courts,
Is not. in our Judgment. inconsistent with
the constitution or laws Of the United
States or Of this state. Nor Is 1t incom-
patible with the condition OF society IN
his state. unless il can be said that the
right of an individual TO use and enjoy
his own property is Incompatible with
our condition. proposition to which, we
apprehend, no one would consent 1or
q moment. It is held by practically all
the better authorities that the right o.
the riparian owner to the natural flow OF
the streams by or acros his land in It's
accustomed channel is an incident 10 MS
estate and passes by a grant Of the lana
unless specially reserved. Il IS not an
easement in, nor an appurtenance to the
land. but. as Angel says. is as much
mart of the soil as the stones scattered
over il. Ang. Water Courses, Sec o.
=. BY the common law says the court,
;n LUX vs. Haggin, 60 Cal. go, 10 Pac-
753. the right of the riparian proprietor
10 the flow Of the stream is inseparaoiy
annexed to the soil, and passes with It.
no. as an easement or appurtendnce, but
- mart and parcel OF X. Csc does not
create the right and disuse can not de-
strov o.. suspend il. The rignr in each
extends to the natural 81 usual flow Of
all the water, unless where the quantity
has been diminished as a consequence OF
:. reasonable application Of it by other
riparian owners for purposes hereafter
TO be mentioned And one of the pur-
poses mentioned was irrigation.
In Waehburn on Easements and Serv-
itudes 9th Ed, up. Sl6. 31O, the learned
author says: 1.-THE right Of enjoying this
iow without disturbance or interruption
by any other roprietOr IS one jure nat
urae Cby the law of nature), and is an in
cident Of property in the land, not an ap-
purtenance to it, like the right he has TO
enjoy the soil itself, unaffected 10y the
tortious acts of a neighboring land owner.
It is an inseparable incident to the own
ership of land made by an inf, xible rule
Of law an absolute and fixed right, and
can only be lost by grant vr tweney
years adverse possession. In this state
by statute, an adverse possession Of ten
years would destroy the right. And the
law on tlis subject is laid down by Prof.
Pomeroy in language equally clear and
explicit. He says: The use of Inc stream
and of the water roF-1S through it,
forms part OF the rights incident to and
involved in the ownership of the lands
l1pon its borders. This is the principle
recognized by the common law. and
which should be recognized by any auxii-
larry legislation. It is moreover, a natural
law. an inevitable fact, which no legisla-
ton can change. Any statute denying
this Tact simply attaPpts an impossible
fty'"
Thus does this court simply add to the
well nigh innumerable opinions support
ing the clear and settled doctrine on the
cubiect," and verify thelanguage Of Chan
ceIlor Kent, "an the difficulty which arts
cs consists IN its application"
And this difficulty was not slight. Many
PEOPLE had settled on the reclaimed lands
which from a condition Of aridity and
worthlessness were changed by the ac-
ton Of the diverted waters TO n condi-
ZION of great fertility and value. Pros
porous farms and happy homes had been
created in the midst Of what was once
q verdureless desert. The court was urg-
fd 10 not destroy those homes. to not
reduce their occupants to a condition of
penruy to not convert the lovely vista
% thriving farms into the desert from
which they had sprung by compelling the
return 10 its natural channel of the wa
ter upon which all this beauty and thrift
and happiness rested. In reply 10 this
powerful appeal the court said:
1t certainly cannot be true that a diff
erence in climatic conditions or geograph-
zeal position can operate TO deprive one
of a right OF property vested in him by
wei settled rule of common law. The
mere fact that the appellants viii not be
able 10 occupy or cultivate their lands
rs they heretofore have done unless they
can irrigate them with water taken from
= q, errfrs