Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1898-01-19
IRRIGATION and RIPARIAN RIGHTS.
A Decision in a Colorado Case, Recently
Rendered by Judge Riner and Of In
terest to New Mexico.

The decision of Judge Riner in the
Federal court in the case of the United
States Freehold Land & immigration
Company VS.. Diego Gallegos is of the
highest interest and Importance, declar-
ing as it does that the right to use water
for the purpose of irrigation is superior
to the riparian rights recognized by the
old common law.
In taking this position, Judge Riner
gives full recognition to the power of the
state of Colorado to change the common
law in this respect and to substitute in
the place of riparian rights those that
are derived under the state law granting
the use of water to persons who appro-
pirate it for irrigation. The doctrine
that a state can change the common
law is. of course, fully established.
About that there can be no question.
But there has been a disposition in
some quarters to deny the sovereign
power of a state to control the water of
it's unnavigable streams to the extent of
giving its use to persons appropriating
it for irrigation, as though for some
reason the ownership of land carried
with it a vested right to the riparian use
of a stream flowing through or along
such land.
This contention, if it were upheld,
would endanger the power of a state to
control for any purpose whatever the
water of unnavigable streams flowing
across its boundaries into another state.
The success of the plaintiffs in this ac-
ton would have established a powerful
precedent for those Kansas people who
protest against the appropriation in
Colorado of the water of the Arkansas.
1t is particularly fortunate, therefore.
that the view taken by Judge Riner sus-
tains the right to withdraw water from
a stream, Notwithstanding the old com
mon law doctrine of riparian rights.
The natural conditions which prevail
in a country must in a way determine
it's laws. and an attempt to apply to one
country u legal principle which con-
very best be viewed with suspicion. The
presumption is against the application
of such a principle, however we'll fitted
it may be to the conditions under which
it has its origin. An attempt to enforce
the doctrine of riparian rights in a coun-
try where agriculture demands that it
be set aside would naturally make. one
inquire whether the law-making power
had not done away with such rights.
This is just what the law-making power
of Colorado has done. 1t would be
strange if an enlightened community
like Colorado had clung to a doctrine Of
the old English common law which con-
ticts with the agricultural development
of the state.
1t is particularly satisfactory that a
federal judge has taken the position that
"the rules of law which define and regu-
late the water rights of private riparian
proprietors upon unnavigable streams
belong exclusively to the jurisdiction of
state legislatures" 1t has too often
seemed as though federal judges were
not inclined to pay very high regard to
the jurisdiction rights of the states. But
in this instance Judge Riner has recog-
nized as fully as anyone could wish the
authority of Colorado over it's unnavi-
gable streams. His decision will become
a precedent for the settlement of ques-
tions involving a denial of the authority
of the state and the assertion of a right
in congress to override state jurisdiction
in respect of irrigation matters.