Omaha daily bee., 1903-02-21

which might be used on riparian lands. bat
IL Land TO be riparian must have the
stream flowing over it or along its cordcrs
IA. The extent Of riparian Nud cannot IN
any event exceed the area acquired hy a
single entry or purchase from 'he severn.
ment. and whether iI view OF thy policy OF
the government IN The disposition OF its
I public lands such riparian and may exceed
the smallest legal subdivision of a section,
that l.. forty acres, OF ~ ley thereof y an
rregula tract. a designated numbered lot
which is bordered by a .atu.al stream or
over which Il dous. qua-r6
Z Is The two doctrines II water rights. one
the right Of a riparian s-ourtetur, anu the
other the right Of appropriation ezra -ppl-
cation 70 a beneficial use gy a Dou-r-pArIan
3 owner. may exist IN The STATE at lbe same
time and both DO exist concurrsnty IN this
: Is The common laW :gle Of RIPARIAN
rights IL underlying and fundamental and
takes precedence Of approprlaions Oh water
IL. The riparian owner acquires ti;Ie 90 his
usufructuary interest IN me Naltr Nhel ne
secures the land TO which u = al incident,
and the appropriator acquires title by ap-
preparation and the Application % the
water 10 some beneficial use. EEe time
when either right attaches determining the
superiority Of title as between conric ms
~ TSe Irritation acts or -se and 1885
abrogated the Law Of private riparian rights
as Heretofore existing, and supSutGtu In
its stead a .aW providing FOR me arpro-
priatiun 4. the public waters u the state
and their application TO the beneficial -ses
. HnETEln contemplated.
ls The legislative enac;ments referced. 20
did not have the effect Of abolishing vested
rights OF riparian proprtetors but affected
only such rights as might nave been &C
CURED In the future under the Law as there
tofore existing.
the fact that since the early settlements OF
the western portions Of the state. where
irrigation has been found essential to sue
cessful agriculture. ;hat a custom or prac.
tice has existed Of appropriating and divert
ing waters from the natural .~channeli
thereof into Irrigation canals, AID the ap-
plicauon Of such waters % the soil foI
Agricultural purposes; whether vested
rights have been acquired thereoy mus
depend on the facts and circumstances A.
disclosed in any particular case.
q The right TO the use Of water when &C
property right and becomes a superior ant
better title TO the use and enjoyment Of
such water than that Of a riparian prJprie-
tor whose right attaches subsequently,.
= The act Of congress OF July y. so,
granted to those appropriating water or
a right in and 10 the use OF such waters
when made according TO local customs OF
when such right is Iec2gniEed oy the law
OF the state or the decisions ot the courts
2. The act Of ISL. Session Laws OF q,
page is. was an implied recognition OF the
right TO Appropriate the waters on the pup
lie domain according 20 the custom prevail
ing in the arid states immediately west ~
Us. and the irrigation acts of l@S and lSs
rights OF those who had appropriated tht
public waters and applied them 70 agri-
"a The duties Of the state Board OF Irri.
cation as provided for in the irrigation ac
OF 1875. chapter xix. Session Laws, are ad-
ministratiVe and not judicial. the sections
OF the statute creating such board Is not
Unconstitutional as eonferHng juolcla
, powers on executive Officers
=. Where a large number OF persons CLAIM
rights 10 use or divert the waters OF {
stream BY virtue OF riparian rights, appro'
pTtstions. prescription or otherwise, a suit
In equity to determine such rights, and eH-
? Toin infringement, under color thereof. OF
, -H-AWa anmnfwaA rnnRE HE HTEEaflnn ACT
; may be maintained TO avoid multiplicity o.
Fuits-
/. 10 do equity by compromising ripaTisI
? owners whose rights are affected by th'
~ issying them 10 their actions al law
4. and In that way the amounts due the sey
. ersl parties by way Of damages may be
Z come a proper subject OF inquiry ana &c
{ ~ THE term domestic purposes as use
= In section 42. article H. chapter Xciiia. Com
use Of water for domestic purposes Per
= mitted 10 the riparian proprietor at com
= little interference with the waters Of
stream or its flow. and does not conteu
. plate diversion OF large quantities OF waite
> IN canals OF pipe lines
.. The common Law does not give. 20
E riparian owner an sbsoIuye ana eHclusiy
r stream IN its natural state, but only q rign
r to the beneht and advantage OF the waite
e flowing past his land 80 far as consisten
With a ike right in all other riparian owr
ers-
= A riparian owner having a suDeru
& TITLE 10 the use OF the water Of a stream q
8 AGAINST an appropriation Is net entitled Z
q maintain an Injunction 10 prevent n
e diversion OF the storm. or hood waters q
c he stream and thereby prevent us appics
o ton 10 a beneficial use as contemplated b
s the statute.
81 There IS no such thing as a prescriI
n tive right OF a lower riparian owner 10 -
ceive water as against upper owners. RI
> than len wears does not give a prescriptiy
tight that will prevent reasonable use Z
- waters by an upper owner