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

and as has frequently been stated, re-
quired its abrogation, so that, notwith-
standing the declaration of the statute.
1t has never been recognized as control
ing the matter of water rights
The civil code of California, which
went into effect on the first day Of
January, 1873, contains the following:
Section 1410. The right TO the use OF
running water flowing in river Or
streams, or down a. canyon or ravine,
may be acquired by appropriation.
Section 1414. AS between appropri-
ators, the first in time is the first in
right
Section 1922. The rights of riparian
proprietors are not affected by this
title.
1t is very plain that this statute does
not contemplate nor recognize any right
of land owners to appropriate The wa
tiers OF private streams. that is, the
streams running through or adjacent to
lands of private owners. The riparian
rights of such owners are most GER
tainly assured and protected
Irrigation Districts.
The legislation Of this state also in
cludes an important statute, passed in
1887, for the organization and govern
ment of irrigation districts"
Oh the supreme court VI
Nevada declares that the common law
doctrine of riparian rignts-that every
owner Is entitled to the natural flow Of
the stream through his Iand as il was
wont to runs not applicable 10 the
streams in Nevada, but the rights there
to should be determined by the doctrine
Of prior appropriation.
The Legislation of the state of Mon
tana is in complete derogation of the
sa~s,,
Section 1888. Any person or corpora
ton owning or having possessory title
to any agricultural land shall be en-
TITLED to the use and enjoyment Of the
waters of the streams and creeks IN said
territory, for the purposes of irrigation
and making said land available for agri-
cultural purposes, TO the full extent OF
the soil thereof"
Availability of Water.
Section 1245. All waters Of streams
are so available TO the full capacity
thereof for irrigating, without regard
to deterioration in quality or diminution
In quantity" so as not to affect the
rights of prior appropriation, but in no
case can water be diverted froms the
bitches, etc, of such appropriation.
The revised statutes of the state Of
Idaho contain title on the subject OF
Water Rights and Irrigation
in any material manner from those of
the California civil code.
The following sections contain the es-
sential elements of the Montana legis-
lation.
Section $3.50. "AIl persons, companies,
and corporations owning or claiming any
lands situated on the banks or in the
vicinity Of any stream. shall be entitled
to the use of the waters of such stream.
Of frri
so held or claimed"
Some Approved Laws.
A recent statute of the state OF North
Dakota adopts the fundamental notion
of the Colorado, Montana, and Idaho
legislation; but extends the right OF APP
preparation equally TO all beneficial pur-
poses, as we'll as that OF irrigation.
New Mexico. Arizona, Wyoming and
Otahhave enacted laws similar in general
text to the above.
Quoting from Blacks Porneroy on
Water Rights"
1T is plain that in Montana, Colorado.
Idaho, North Dakota, South Dakota,
New Mexico, Arizona, Wyoming and
Utah, the legislation has wholly aban-
doned and abrogated all the common law
doctrine concerning: private property
In streams and lakes, and concerning
the riparian rights of riparian pro-
prietors"
Apply to All Streams.
Inc statutes in express terms apply
10 ali streams, as well as those running
through public lands as chose bordering
Dy the lands of private owners. NO
exception from their operation is made
IN IaFor OF persons owning land on the
banks OF stream. Under these statutes
no proprietor derives any legal beneflt
or advantage from the fact that his land
is Immediately adjacent to a stream
Onless he has made an actual approprl-
aflon and diversion of its water for the
use OF his own land, he is liable TO have
perhaps the entire stream appropriated
ana diverted away for the benefit OF
proprietor whose land is situated at any
Instance from the stream.
IN the state of Texas, is found certain
legislation which is similar TO that
ADOPTED In certain of the Pacific COM
munlties induced. no doubt, because OF
the similarity of the geographical and
social conditions ,
UnapprOpriated Waters.
A statute contains the following pro- |
vision:
Section 1. THE unappropriated waters