Weekly independent. [volume] (Elko, Nev.) 1887-1914, 1904-04-22

u! Ill" courts "f other nrIJ ianH state,
ana hiso ~ citations from l. writers OF
legal text books on Water Rights and
Irrigation that the dortriuc that a rll.ht
l" ih" continued flow ana use Of waters
could b" acquired by approximation l.
confined to the waters nf natural s,rruns
hnd lakes and other nuturM .ourcrs Of
supply and that one pf the ee initial rl,-
mcnts Of II valid appropriation uf wafer
Is II diversin inn thereof from th,. nuturnI
stream"
I'm regard I" waters flowing IA am ar.
hhcial water course and t. Surplus and
waste waters which have not G-cn re-.
turned to the natural chuuucl ut th,.
stream and there nbanduurd. the an
thorItics den! that rights to turh waters
can br acquired 10y appropriation or or.
dIGhriiy even by prescription. With
regard to wiurtr or surplus waters not
returned Ia the stream the cases seem to
hold that only 50 much ut such wastc or
srrplu~ waters rs the upper pruurietor
F|c3S 10 remit to iiuw dos n to the lower
proprietor can be used hv the latter,
that the latter can acquire no right t.
the continued fl Of any such waters"
Here followed II li-t uf numerous
legal authorities whi.h surporl ,h.
VIEWS explained III the last quotation
from tile opinion. Judge Brown then
quoted at length from txu California
eases here the Supreme Court uf tha,
siatc denied that a right To waste watcrs
from au artificial stream could b. oh.
tanned by aTrropriation and adds this
| comment,
The extract from Ball v K-hl Just
| quoted, points Out the reason the law
makes the distinction between the rights
which mny bc acquired III natural
! streams and those which obtain III
waters carried III artificial watcrcuurc,s,
| Waters flowing III Il natural stream are
| PHbI!T JHJTS. Tie right to take and
use the public watcr- granted Ia thu uu.
proprietor. The uppropriatOr can have
no property rights III "r to the 0D,@ms of
| the water itself unit! it enters his ditch
from the nnturtl stream. Up To that
| point his right is tO have the water to
the extent "t hs appropriation flow to
hchd Of his ditch. But when Dncc water
has Teen taxed hy any rersOu INTO his
ditch, tha, particular water becomes hrs
personal property. or II not his private
| personal prop"rt! III Inc complete srrs,.
| OF the term, II Is subjrc' ncvcTihcl, ~ to
| his exclusive and alb Olutc control while
III his ditch or upon his land. (Src cases
cited III the quotation ;rum Ball Y, Kchl
| lCnl,) 20 Fac Il. 1S) at =. TS2, also KIN.
ncy on Irrigation see 2lT. Blacks Pom.
Water Rights sec -, Long Irr sec -.
| GUuld uu Waters sec. 2bG. Kidd y. Laird
II Cal. 100 Mt p p. 10. $50, Salt LAX"
| City Y. Power Co. tUtahJ % PHc, Il. CO.
at y GO. Hence until hr loses control
OF ihat particular water toy allowing II
| in flow AWAY from his land or from his
| ditch without auy intention ~ rPcaptur.
ing it, 1t Is not subject to Hno,hrrs ap.
| preparation. For one man cannot hr
permitted t" appropriate thing. the
| absolute and exclusive control of which
ia 10y law vested IN another
The court'a couclus,nns are thus sum.
mod upim the closing paragraphs of the
| upininn:
"rhe stream dc.crlbcl ns the waste
waters from the McrkIc! and Young
rar CHI being artificial and temporary
| and not natural st strcams, IT follows from
| the principles Which the examination
~ the authorities has shown tn bc up.
| plicahlc, that 10y defendants diversion
| and Use Of tho water which plaintiffs
| had allow, q flow through dcicnhunt's
homestead Inc acquired at the most, only
tho right Ia uar the particular water that
| tho plaintiffs seem tu have db IndOncd
| by permitting il to flow away from their
| land, md not Tie right 10 havc lIc was'o
| water continue in run dow n ru hia homo
stcad II h.ny appear hard TINT the de.
| fcndant cannot compel the plaintiffs 10
| let him hRsc, out Of their abundance,
| some 81 their waste wntCr, whcu with.
out il hia homestead mny become valmc.
less for farming purposes. Bet tim;
| water il not in lnH subject to hi1 ap
| preparation. He Inns not acquired any
right aa ~ INST the plniuiiiIs Ia iis
continued use. u they wnsIc tho waters
which tlcy hnNc taken from Smith
Crcck. plaintiiTa do defendant no legal
injury. For, 10 fnr ns his plcadings
and the admitted evidence shOv', ho hns
made no diversion from Smith Creek.
This court will restrain u wnsicful di
version ~ water from u natural stefan
whenever II suitOr ehOwa that such
waglciul diversion invadcs lila legal
rights by dcpriving him ~ water TO
which ho ia legally entitled. But the
moro waters the PLAINTIFF diverted from
smith Crock without making n bcnn'
iicial use ~ them, the greater would bo