El Paso herald. (El Paso, Tex.) 1901-1931, 1910-02-26

with the common law rights of the RI
parfan owners, and violate the doctrines
or the common law.
To Adjust Usage.
1t Is simply impossible to utilize water
Tor any of these purposes, and then to
return it, substantially unchanged, in
amount and condition to its original
channels. The problem is to reconcile
or rather adjust. these necessary uses,
and the common law rights and interests
! of all other and riparian owners.
In the absence of a code of laws fix
ing the rights to the use of waters Of
running streams or lakes for mining
purposes, the miners themselves adopted
certain mining customs to which they
yielded voluntary obedience, and which
were afterwards recognized and sane
toned by the legislature of certain
states and congress. The custom, thus
originating ,was soon approved by the
courts, and the doctrine became and is
still settled in certain states. in oppo-
sition to the common law, that a per-
nanent right of property in the water
Of streams or inland lakes which wholly
ran through or were situated upon the
public lands Of the United States. may
be acquired for mining purposes by mere
prior appropriation.
This doctrine, applied at first TO the
opera lions Of mining has been extended
to all other beneficial purposes for which
water may be essential. to milling, manu-
featuring, agricultural, irrigating and
municipal purposes.
Applicable 70 Texas.
The rule thus applied was confined
in its operation to the public lands OF
the United States. The question at once
presents itself, whether the same rule
will apply to the public lands of the
state, as we'll as to those of the United
safes.
In the admission of Texas as state
were reserved, both the proprietary right
of an owner. and the right of a political
sovereign.
It is contended by some that the con-
siderations which led to the adoption Of
the rules previously laid down concern
ing the public lands of the United
States would seem to apply, with al;
least an equal force to the lands owned
b. the state.
AS the doctrine of prior appropriation
on public lands Of the United Sta-es
originated from policy recognized, ia
vored and promoted by state authority,
and as similar needs exist and similar
reasons apply in connection with the
lands of the state, it seems a natural
even If not an inevitable consequences
that the same doctrine should be Ak
tended to those lands as against the
state itself and its subsequent grantees
In Other States.
In some states, partly arid, the courts
held the common law doctrine still to be
In force, and where riparian rights had
vested before an appropriation made,
such riparian rights were protected.
Conversely. this was also true, and where
an appropriation was made prior to the
vesting Of riparian rights, the rights
OF the latter riparian owner became SUBJ
1ect TO such APPROXIMATION
In some states, it was held that the
common law doctrine never had existed
there, hence. no riparian rights had ever
vested.
In supreme court decisions Of Colo
RADIO, Colo. 1882, we find the follow
ing:
we conclude. then, that the common
aaw doctrine giving the riparian owner
a right to the flow of water in its nat
ural channel upon and over his lands,
even though he makes no beneficial use
thereof, is unapplicable to Colorado. I'M
perative necessity, unknown to the
countries which gave it birth, compels
the recognition of another doctrine by
the same court, % Colo, 1901.
The Law of Necessity
The law of necessity rendered the
common law doctrine of riparian rights
wholly inapplicable In this Jurisdiction,