Omaha daily bee., 1903-02-05
UPHOLDS IRRIGATION LAW
Supreme Court Rsve7ss Former De, s.ol in
the Orr wfJrd Gaze.
STATE IRRIGATION BOARD A LEGAL BODY
Noodles Ruling ON the broad Doe
trine Of RipariaR Rights Will
UphoIdinR the Genera PrIn-
cipIe Involved.
'TATE IRRIGATION BOARD A LEGAL BODY
(From a stan correspondents

N3Aaa ~ nv Ae-N VI ~ 80
company against Hathaway. from Dawes
county. which for so long has been in the
hands Of the court. The decision Is in
favor Of the Crawford company. Judge
Holcomb wrote the opinion. II upholds the
constitutionality OF the State Board Of Irri-
CATION and upholds the doctrine OF riparian
rights to a limited extent, thus giving
both these bodies contending for state con-
troll Of water and riparian rights some en-
couragement. The former opinion Of the
court is reversed and the case is remanded
for trial.
Similar questions we're decided in the
cases Of Jen. c. Meng against Charles F.
CoIey ct al. and the Cattle Rock Irriga-
ton Canal and Water company against
Philip Jurisch. Judge Pound wrote the
opinion in the FIRST named and Judge sedg-
wick the opinion in the latter.
Court states Case.
In discussing the case the court says:
Briefly. the appellant. who was plaintiff
below. began an action equitable in char
acter to have adjudicated the rights Of
different persons made parties to the ac-
tion to the use Of the water flowing in a
stream called White river. and to enio!n
the defendant. Hall. from a threatened in
reference with plaintiffs h~eadwater and
hoIhh tOuuN1Ntu Win IN AEElSdlluk Eauhl
now being constructed by II. The plaintiff
claimed the right to divert the waters OF
the stream mentioned for irrigation pur-
poses and to supply the town Of Crawford.
situated near its proposed canal. with
water for municipal purposes. Defendant
Hall. owning and operating a mill. adjacert
to the stream. which had been utilized for
power purposes. denies plaintiffs alleged
right OF appropriation and claims a right to
the continued use Of the water ordinarily
flowing In the stream as a riparian propri-
etor. Numerous other defendants claim
ing some right to the use OF the water as
riparian owners or by appropriation, were
also made defendants with a view Of hav-
ing adjudicated the rights OF all the parties
to the litigation. The trial court refused
to lake Jurisdiction and try the case on
it's merits for the reason that the water
rights OF the respective parties had not
first been determined by the State Board
OF Irrigation under the provisions OF the
irrigation act Of 1895. On defendant Halls
application on a cross petition an %injunc-
tion was granted against plaintiff restrain
ing II from dive4ting the water Of the
stream into its irrigation canal and the
temporary Injunction granted in its favor
aad against Hall was dissolved. From
these several orders the plaintiff appeals.
"The arguments in this court have taken
an exceedingly broad range. Narrowed to
its simplest terms. the matters in dispute
relate to conflicting rights and interests as
between riparian owners. and those claim
ing as appropriations of the waters in the
streams of the state for irrigation and
other beneficial purposes. Incidental to
the main question thus stated there is
involved the constitutionality of the irri-
CATION act of 1895. creating and providing
for a state board of irrigation. defining
its duties. powers and authority and espe-
cially the portion OF the act which en-
powers such board to determine and adjust
the amount and priority of right to the use
Of water by appropriation for irrigation
purposes.
syllabus of Case.
"The doctrine OF the civil law with re-
spect 20 the right OF acquiring an interest
in the use Of water by prior appropriation
and the application Thereof to a beneficial
use has never become a part OF the laws
Of this state; and this without regard to
whether the doctrine was ever in exist
ence as a part OF the law in force in the
territory acquired by the United States
know as the Louisiana purchase.
The common rule with respect to the
rights Of private riparian proprietors ha:
1ENh q AZ u a. avs - 80 N@1 Nf
since the organization Of a state govern
ment.
at cannot be said that the common Law
rule defining the right Of riparian propri-
etors is inapplicable to the conditions pre-.
vailing In the state because irrigation II
found essential to successful agriculture in
some portions thereof.
"A riparian's right 10 the use OF the flow
OF the stream passing through or by his
land Is a right inseparably annexed to th'
soil. not as an easement OF appurtance
but as a part and parcel Of the land. sucl
right being a property right and entitled t.
protection as such. the same as private
property right generally.
The legislature has not abolished, no
does It possess the power to abolish. tn
rights Of riparian proprietors which hav'
become vested. except as such>rights b
taken or impaired for public use in an ex
ercise OF the power Of eminent domain, 70
which compensation must be made for tn
injury sustained,
The provisions of section Al. article n
chapter xeiii a. complied statutes. 1891, ant
OF section u article 1 CT the constitution
authorizes the condemnation Of the right o
a private riparian proprietor to the use an
employment of q natural stream howin
past his land or it's impairment by an ap
preparation OF such water for irrigation pur
poses, and such riparian proprietor may re
cover damages in the same way and sub
ieet TO the same rules as a person who's
property is affected injuriously by the con
struetion and operation Of a railroad.
Can eeOVe Damages.
The irrigation act OF 1895 authorize
and regulates the appropriation OF IN
waters OF this state for irrigation and othe
purposes which are declared to be a pub
lie use. and In making appropriation 70
water as contemplated by the act. a ripar
ian owner whose property rights are ap
prCpriated or Impaired is entitled to com
pensation for the injuries actually sus
tanned. to be recovered in a suitable actio
or a proceeding Instituted for that purpose
las to those streams Of water flown
through the state which may be classed a
Interstate rivers, and along the banks q
which meander lines have been run by IN
government in it's survey OF the publ
lands. the question is left open as {
whether or not the waters Of such stream
CT t. HKs1Is