Omaha daily bee., 1903-02-21
SUPREME COURT sYLLABl

AAN AN-lNHAA NNAlNNae VIII " NNAMaAAAN
reported
s7 Neng against Coffee Appeal from
SOCK Judgment Pound. e. Division
L The power Of the courts 20 declare es-
tablished doctrines Of the common law IN
[ applicable TO this state should be used
somewhat spar!nEly. and its exercise BE- no;
70 De Justled unless the tnappicability Of
the rule is general. eNtendinE 90 the whole
or the greater part q the state, or. al Ieast
10 an area capable Of definite judicial a.
2 The common law rules as 20 the rishts
and duues OF riparian owners arefin force
10 every part Of the state except a. alterei
( or modified by statutes.
g The COMMON Law does not give to a
riparian owner IN absolute and exclusive
rght - the Tow 81 all the water Of the
stream IN its natural state. but only q right
10 the benefit and advantage Of the water
flowing past his land 50 far as consistent
WIKI a Ike right In all other riparian own
7 ers.
{. In regulating the use by riparian own
ers the law distinguished between those
modes Of use which ordinarily involve the
taking Of small Quantities and but little IN
terterence with the stream and those which
necessarily involve the taking or diversion
Of large quantities and a considerable in
reference with Its ordinary course and
now.
8 The purpose n the law as TO the use OF
water by ripauan owners Is 70 secure
equality therein, as near as may be e
each. by requiring each TO exercise he
rights reasonably and with due regard tC
the right Of other riparian owners to ppl
The water TO the same or other purposes.
A riparian owner may take water iron
a stream for purposes Of irrigation. But
his use OF the water for such purposes mus
be reasonable with reference TO the size
situation and character Of the stream. ths
uses TO which its waters may be put BY
other riparian ovners, the season OF tbs
year ana the nature OF the region, and n,
must not In so doing unressonabiy Diminish
or wholly consume such water TO the in
jury Of other owners. nor 50 as 20 proven
reasonable use OF L by them.
T. What Is a reasonable use OF water foi
irrigation is largely a question Of fact, de
pending upon the circumstances Of saCf
case. and one which may Dc viewed v1tl
some nberality In semi-arfd regions. wher'
use for such purposes necessarily involve
much loss, but waste. needless diminutioi
or total consumption Of a stream. to the In
jury OF others. X clearly unreasonable
An appropriation OF water BY squat
this state. the decisions OF its courts, no
any general. vel recognized or widely re
spected custom therein. does not BY VIrtu
Of section 10. Revised Statutes Unite,
States. give 10 a settler who has apprO
priated water in that way for a less perio,
than ten years an exclusive right as agains
other settlers upon the same stream.
3 But a settler who 50 approp.1ates waite
and afterward duly enters and receives
patent 10 the land from the government
may, as against other patentees from tn
government upon the same stream. Coun
the time during which he appropriated tn
water as a mere squatter in akin on
the statutory period Of prescription.
10 Appropriation OF considerable quaint
. III NA NaAtL n EEaEAI- WIZ AnAA ma y
done without sensible injury to lower own
ers. does not give a presCriptive right I
divert the whole stream in dry seasons.
1nS7. Crawford County against Hath
away. Appeal from Dawes Reverset
with instructions. Holcomb, J. Sedgwicl
J.. concurs separately.
/ The doctrine Of the clvfl law with re
spect TO the right Of acquiring an interes
in the use OF water by prior appropriate
ana the application thereof to a benehcis
use has never become 4 part OF the laws Q
this state. and this without regard I
whether the doctrine was ever in e~Nistenc
as a part OF the laws IN torce In the teri
tory acquired by the United States know
as the LOUISIANA purchase.
2 The common Law rule with respect :
! the rights OF private riparian proprietor
has been a part OF the laws Of the stat
ever since the organization OF a state GOV
5 & Il cannot be said trat the common la
rule defining the rights Of riparian propri'
tors is inapplicab!e 20 the conditions pr
vailing in the state because Irrigation
found essential 10 successful agriculture
r some portions thereof
4 A riparian's right 20 the use of II
flow Of the stream passing through or Z
his land Is a right inseparably annexed
the soil, rot as an easement or appurter
{ such right being a property right and e
titled TO protection as such. the came q
private property Ugh generally.
3 The legislature has not abolished. NJ
does IL pOsEsss the power to abolish. II
rights Of riparian propr1etors which haN
n become vested, except as such rights I
exercise OF the powers of eminent domain
, for which compensation must be made Il
the injury sustained.
8 The provisions Of section q. article
chapter Iciila, Compiled Statutes for 80
and of section q. article 1. Constitutiof
d authorize the condemnation Of the right
a private riparian proprietor 20 the use AZ
enjoyment OF a NEURAL stream flowing pa
his land or ats Impairment by an apr
r-iafion OF such water for Irrigation pu
poses. and such riparian proprietor ms
recover damage In the same way and So
d Sect 10 the same rules as a person who
4 property Is affected lnjrrtonsly by the Co
struction and operation Of a railroad
! : The irrigation act Of 1895 authorizes al
regulates the appropriation OF the waite
n Of the state TOR irrigation and other pu
poses which are declared 10 be a public u
; and in making appropriation Of waters
contemplated by the act a riparian own
. who's property rights are appropriated
= impaired is entitled TO compensation for Z
. Injuries actually sustained, 20 be reco
cred in a suitable action or proceeding :
l. stituted for that purpose
8 As TO those Streams OF water fowl
through the state which may be classed
e Interstate rivers. and along the banks
e which meander zines have been run BY Z
a government in its survey OF The pub
E. whether or not the waters of such streaT
IL may not be treated as waters OF navtgat
rivers and 70 which HP oaTs 1T Tissfs 81
y against the right of the public TO Ose I
"a waters thereof by It's Appropriation and g
pIication 10 beneficial purposes.
z. While as an abstract proposition
I, Jaw a riparian proprietor has the right
ar the ordinary natural hoY OF a stream. II
rule would furnish no basis for compens
q ion where water Is a~ppropr1ased for frTe
ton purposes: In order to enttle a ripari
owner % eC~PeRsatiG n he he T9Sss s1f ssFa
which the law recognizes as belonging
De him BY reason OF his right to the use a
enjoyment OF the water OF which ne Is {
prived-
ae 10 Ordinarily = riparian propreto
right 10 the use Of water OF q stream
% and IN applied % the irrigation Of ripari
lands. a reasonable use for such purpose
II view OF an equal nigh 20 use belonging
- All other riparian proprietors.
- il. The rtgh Of 9 riparian PROPRIETOR
such 20 use water for iIr1gaton pufpo'
" Is limited 10 riparian lends.
L The right cannot be extended 10 lar
contiguous 20 the riparian land nor c
water be diverted 20 n~on-rtpar1an lar