The San Francisco call., 1905-08-13
PARANyLAW
IS LAID DOWN

In the case of John Anderson and 9TH
ers against Henry Bassman and others
United States Circuit Judge Morrow yes
eterday ordered a decree restraining the
defendants from diverting water of the
west fork of the Carson River in excess
or hVe. days in every ten days during
June, July. August, September and Octo-
Der in each year, and that they be re-
strained from placing manure and other
pouuting substances in the dams. The
court made a decree also restraining the
defendants on and after June l. 1906, from
using water from the river where no pro-
vision is made for returning the surplus
water to the river. Costs were taxed to
both parties.
This suit was brought to prevent the
I diversion of the waters named. The
west fork of the Carson River is an un-
navigable stream, rising in the Sierras, in
Alpine County, and running ~.northerly
and easterly into Douglass County, Ne
vada. Complafnants claim the right to
the water, of which they are being de-
prived by diversion by the defendants
above them.
Judge Morrow, quoting from the case
OF Howell VS.. Johnson, in the United
States Circuit Court of Montana, said:
The Federal Government is not re-
strained in the disposal of its lands by
State laws or State lines. Its laws upon
this subject apply. to the lands in one
State as we'll as another. It has made
grants of land extending through several
States The State governments cannot
restrict 1t in the primary disposal of its
lands, If it may sell .and dispose of its
land as 1t may. deem proper. there is no
reason why it.may not sell a part thereof
as an incident thereto. ssuch as the use
of water flowing over the same"
rI1A N4v,s4
United States Circuit Court for Colorado
in the case of Hoge VS.. Eaton was next
quoted, as follows:
THE idea of an. exclusive right. in the
people of a State to divert its running
waters to the injury of riparian owners
in another. State must be equally unten-
able. Indeed. the doctrine of riparian
ownership and use of running water is
not subject TO political boundaries Be-
tween hostile States the doctrine may not
be recognized but any such reputation
would be simple Wis major. Between
States dwelling in peace and concord, as
are the States of our Union, the equal
right of the inhabitants of each State to
the waters of intersecting streams must
always be recognized. Water is essential
to human life in the same degree as1lfght
and air, and no bounds can be set to it's
use for supplying the natural wants of
men other than the mighty barriers
which the Creator has made on the face
of the earth.''
Judge Morrow said that he was. in en-
tire accord with the views of these two
courts upon this question. After quoting
further authorities he said:
1T follows from these authorities and
others that might be cited that whether
the water is. taken from the stream in
California by the riparian owner for the
purpose of irrigation. or is taken from
the stream in Nevada by the appropriation
for the same purpose, the right Is equally
sanctioned by law and is subject to the
same limitation-that is to say, the right
to use the water from the stream for ir-
rigation purposes in either State under
either right must be a reasonable one.
to be determined by the circumstances of
each case and with due regard to the
rights of others having the same bene-
fetal use in the water of the stream
Judge Morrow added that defendants
use of the water of the river was not adj
verse until it became injurious to the
complainants and amounted to an ac-
tionable invasion of their rights He
thought the. complainants had established
their right to have defendants restricted
to a reasonable and economical use of
the water, whether those restrained took
It as riparian owners or appropriators for
non-riparian lands