Omaha daily bee., 1903-02-05

may not be treated as waters o. naviEable
rivers 70 which riparian rights Of an sd-
joining land owner would not attach az
aEainst the right Of the public 10 use the
waters thereof by its appropriation and ap-
plication 10 beneficial purposes.
while as an abstract proposition OF Law
a riparian proprietor has the right 10 the
ordinary fow OF the stream. this rule would
furnish no basis for compensation where
water Is appropriated for irrigation pur-
poses; In order 10 entitle a riparian owner
to compensation he must suffer an actual
loss or injury to his riparian estate when
the law recognizes as belonging to bin by
reason Of his right to the use and enjoy,
ment Of the water OF which he Is deprived.
Ordinarily a riparian proprietor's right
to the use Of water OF a stream is limited
TO its use for domestic purposes. and IL ap-
piled to the irrigation Of riparian lands,
a reasonable use for such purpose in view
Of an equal right TO use belonging to. all
other riparian proprietors. The right Of
a riparian proprietor az such to use water
for irrigation purposes is limited to rip
arian l-nds.
The right cannot be extended TO lands
contiguous to the riparian lands nor can
water be diverted to non-riparian lands
which might be used on riparian lands but
is not.
Dednes Riparian Lands.
Land to be riparian must have the
stream flowing over # or along its borders.
The extent Of riparian land cannot in
any event exceed the area acquired by a
single entry or purchase from the govern
ment. and whether in view Of the policy
OF the government in the disposition OF
it's public lands such riparian lands may
exceed the smallest legal supposition of a
~section-that is. forty acres, or in lieu
thereof II an irregular tract. a designated
numbered lot, which is bordered by a nat
ural stream or over which Il flows. quaere.
The true doctrines Of water right. one
the right OF a riparian proprietor and the
other the right Of appropriation and appli-
cation to a beneficial use by a non-reparian
owner may exist in the state at the same
time. and both do exist concurrently in
this state.
THE common law rule Of riparian rights
is underlying and Fundamental and takes
precedence Of appropriation Of water IL
prior in time. The riparian owner acquires
title to his usufructuary interest in the
water when he secures the land to which
It is an incident. and Appropriation ac-
quires title by appropriation and the ap-
plication OF the water to some beneficial
use. The lime when either right at
taches determines the superiority Of title
as between conflicting claimants.
The irrigation acts Of 1889 and 1885
aborogated the law of private riparian
rights as heretofore existed and substi-
tuted in its stead a law providing for the
appropriation of the public waters of the
state and their application to the benen-
cial uses therein contemplated.
Disturbs No Vested Right.
The legislative enactments referred to
did not have the effect of abolishing vested
rights OF riparian proprietors. but affected
only such rights as might have been ac-
quired in the future under the law as there
tofore existing.
The court will take judicial notice Of
the fact hat since the early settlement
of the western portion of the state, where
irrigation has been found essential to sue
cessful agriculture, that a custom or prac-
tice has existed OF approprlating and di-
verting waters from the natural channels
thereof into irrigation canals and the APP
plication OF such waters to the soil for ag-
ricultural purposes. whether vested rights
have been acquired thereby must depend
On the facts and circumstances as dis
closed in any particular case.
"The right to the use of water when
acquired by appropriation is in its nature
a property right and becomes a superior
and better title to the use and enjoyment
of such water than that OF a riparian pro-
prietor whose right attaches subsequently
The act of congress OF July &c, 1866
granted to those appropriating water OF
the public domain for agricultural pur-
poses a right in and to the use of auct
waters when made according to local Gus.
toms or when such right is recognized by
the laws of this state or the decisions o.
the courts.
The act Of 1871, session laws OF 1877
page 1853, was an implied recognition Of
! the rights to appropriate the waters or
the public domain according to the custom
prevailing in the arid states Immediately
west of Us, and the irrigation acts Of 1sS!
and 1885 expressly recognized and pre-.
served the rights OF those who had appro.
priated the public waters and applied then
to agricultural uses.
UphOIds Irrigation Board,
"The duty of the state board of irriga.
tion as provided for in the irrigation acr
O. 1895. chapter Xiv. session laws, are ad
ministrative and judicial; the sections o
the statutes creating such board is not IN
constitutional as comforting judicial pow.
ers on executive officers.
Where a large number Of persons CLAIM
rights TO use or divert the waters OF
stream by virtue OF riparian rights, ap
PropriatiOn. prescription or otherwise, a sui
in equity to determine to such rights AM
enioin infringement. under color thereof
OF rights acquired thereof under the irri
cation act. may be maintained to avoi'
multiplicity OF suits.
The plaintiff in such a suit may offe
to do equity by compensating riparian
owners whose rights are affected by tn
constructions and operation of a canal with
out leaving them to their actions at law
and in that way,the amounts due the sew
eral parties by way OF damage may be
come a proper subject of inquiry and ad
I judicatioh therein.
l The term domestic purposes as use
: in section 43, article II. chapter xciiia. Com
piled Statutes 1901, has reference to tn
use of water for domestic purposes per
mitted TO the riparian proprietor at com
mon law. which ordinarily involves bu
: little Interference with the water OF
stream or its flow. and does not contem
Plate diversion Of large quantities OF waite
in canals or pipe lines.
The common law does not give TO
9 riparian owner an absolute and e~xclusiv