Seward weekly gateway., 1907-06-22
QUESTION OF WATER RIGHT


 Judge WickerSham has made a de- cision in the United States court at Juneau upholding broadly the right of appropriation of water on public land for beneficial purpose, which right is superior Co that of any subsequent rip ariau owner.
 The text of the decision has not reached Seward the only statement of wha, purporJS to be the facts which has been received here being the accounts published in the Seattle papers, which may not be strictly accurate. Itthese statement, are correct Judge Wicker ,ham's decision unqueS,jonably eN- presses the law, notwithstanding some Nome lawyers in Seattle crirtciSe it adversely. They assert that the rule laid down by the decision would iulure some worthy mine owners on Seward peninsula It is easy Co guess that thes. persons are clients of the pro- testing lawyers.
 The case decided is tha, of Thorn dyk. versus the Alaska-Perseverauce Mining Company The corporation several wears ago located a water
 agh, on Lurvey creek. A little later Thoudyae located ground on Luryey creek and claimed a share inthe water as a riparian owner. He euio.ued the the corporation from djver,tug the flow and the suit has been pending several wears. The corporation claims that ,ue entire flow ofthe stream will be required to run a 50O-s,amp mill it intend, Co erec, and claims ,he water by priority of location and appropria- lion. The decision was in is favor.
 A riparian owner is a proprietor of land bordering upon, or partly or wholly including stream At com mon law and iu the older states of this country following ,ue common law, mere prior appropriation or use of the flow of a watercourse conferred no exclusive right toits continued use as asatus, other riparian owners. and there was no warrant of law for the appropriation and diversion of water by one DO, a riparian owner.
 The aocrtue of right os appropriation of thc flow of watercour,e tor So beneficial Use arose in the western state, because 0I peculiar condition, there In the ard regions water for irrigation can be obtained and a per- maue1- supply assured in no o,herway. Water for mining operations also must be secured by permanent appropriation of 8 regular flow. From these rece,- . site, arose the custom which has been . reinforced by statutory law both in che !. United states and Canada establishing the a.-a, of prior appropriation otI water either or a waterc0urSe OF & . larura. reservoir such as a lake or pond. Later appropriations may law fully take the residue of 8 flow and no more
 Iu Atcatson vs. Peterson. 20 Wall. !. C. S. 52O, Justice Field gives the reason of the later rule in coutrayeu- ! lion Of the common law as follows
 "The government, by its silent ac. . .o.e,cencs. a,seu.ed to the genera, occupation of the public lands for min ng. and. Go encourage their free and unlimited use for that purpose, reserv- | sd such lands as were mineral from sale and the acquisition by settlement. 1 And he who first connects his own labor with property thus situated and . open Go general exploration does in natural justice, acquire better right 1. .o it's use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific states and territories, by thet, customs, usages and regulations, everywhere recognized the inherent justice of this principle; and the prin- ciple itself was at an early period recog- nized by legislation, and enforced by the courts in those states and terri | tories.
 While a subsequent riparian owner might in some cases in good faith wish to claim the flow of the watercOurse bordering his land, the assertion by . law of the superiority of riparian rights . would enable mere spectators in the labor of others to locate riparian lands | for the sole purpose of holding up a l vast mining interest which was al- ready using the water.
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