The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-04-08
USE The WATER.
Supreme Court UpholdsDOctrine
of Riparian Rights.
First Man Who Gets to Water
in Stream Entitled to It.

The common law doctrine of rip
arian rights holds good in western
Kansas. The supreme court today so
decided in the irrigation case of ALA
man against Clark ana others, an ap-
peal from Wallace county involving
the same questions as those involved
in the Kansas-Celorado controversy in
the United States supreme court
The decision is of great importance.
Tor 1t may have a considerable effect
on the kanSaS-COlOrado CONTROVERSY
in addition to establishing the common
law in Kansas. In making this de-
clslon the supreme court reverSes the
district court Of Wallace county
which had decided that the Pacific
coast, or arid states doctrine of prior
appropriation applies in western kan
sas IN irrigation controversies.
This is the case in which the kan
sas attorneys in the Kansas Colorado
suit intervened, because they did not
want the supreme court of their own
state to decide against their side. The
supreme court upholds the Kansas
side of the Kansas Colorado suit
Some time =prior te< 1871 man
named COmstock built a. dam across
Rose creek in Wallace county and
from it ran a ditch with which he
irrigated a garden. This land passed
into the hands of the Union Pacific,
and eventually, in 1876, was purchased
by H. A Clark, who greatly elaborated
the irrigation system, now irrigatine
about seventy acres.
In 1875 A. L. Dodge built dam in
the Smoky Hill Just below where Rose
creek flows into it. and the water from
Rose creek constituted practically all
of its flow. A year or so afterwards
George r. Allaman bought the Dodge
dam and the ditch that Dodge had
dug, about a mile long, and he, too,
has acquired other land until the Ala
man family now has about eighty
acres under irrigation Justice Burch
who wrote the opinion, says that with
out irrigation this land might be
worth only $3.50 an acre, whereas
acre.
Just before the Dodge dam was
commenced John w. Robb built a
ditch across Rose creek about a mile
above its mouth, and he is now irri-
eating about fifty acres. Other dams
have since been built until altogether
Rose creek irrigates about three hun
dred acres. Rose creek is fed by
springs and has a uniform flow of
about five feet per second.
None of the users of this water
complied with any irrigation laws and
as the people along Rose creek used
up about all the water when the dry
years of 1900 and 1901 came there
was trouble. The Allamans down on
the Smoky Hill thought they ought to
have the water as it flowed and suit
was brought to enjoin the people along
Rose creek from taking the water
when it interfered with what was
needed for the Allaman ditch. It was
contended that the doctrine of prior
appropriation applied where the water
was used for irrigation, instead of the
doctrine of riparian rights. In the
district court of Wallace county Mrs.
Allaman, who now owns the title TO
the land. was granted an Injunction
against the people along Rose Greek
to restrain them from using all of the
water and she was also given dam
ages. The district court held that the
arid states doctrine, or that of prior
appropriation, applies. and it distrih
uted the water among the irrigatoTs
on that basis
Now the supreme court reverses the
district court and decides against the
AlIamanS.