The Parker post., 1913-09-20
RIPARIAN LAW
IN THE WEST

owner of the banks OF stream
has the riparian right to have
the water flowing in it's natural chan
mel, undiminished in quantity and un-
deteriorted in quality. An owner OF
the banks of the stream above may
use it's power for a FIGURING mill, a
sawmill, an electrical power plant or
wooden mill, SO long as he returns
the water to the bed of the stream
after using it. But he must not pol
lutte the water with chemicals or saw
dust or otherwise.
The cOmmon-laW riparian right has
been recognized in the States east OF
the Rocky Mountains. But it has
been modelled or superseded by the
right of prior appropriation in the
Pacific and inter-mountain states.
where water is used for the purpose
of irrigation. The first appropriation
in California, Arizona or Nevada may
take IRON the bed of the stream all
the water he can beneficially use.
But he must leave therein enough
water for the use of the owners OF
land below, not because of their ri
parian rights, but because, to the ex-
tent that they have beneficially used
the water for domestic or mechanical
purposes, or for the irrigation of nat
ural medows, they rank as prior ap-
prOpriators.
The beneficial use OF the water
may be for the purpose of irrigating
lands or for prOpelling machinery.
A subsequent appropriation of water
for mechanical purposes does not in
terfere with either the prior apprO-
-priation or the riparian right Of the
owner below him. for after using the
water he returns it to the bed of the
stream ''undiminished in quantity
and undeteriorated in quality"
But a subsequent appropriation Of
water for the purpose of irrigation
may Interfere with the rights Of eth
er the mechanical or the agricultural
appropriation below him. if. by his
subsequent appropriation. he so re
duces the flow of the stream as not
to leave enough to turn the millwheel
or irrigate the fields of the prior ap.
propriators.
The rights of appropriations Oh small
streams OF unequal flow at different
seasons are easily determined. But
with a river like the Colorado, of
mighty volume in the summer, when
swollen by the melting SHOWS in the
mountains. and small size in late
autumn and winter months, when its
mountains affluents are locked in icy
bracelets, the problem OF the rights
OF first and second and subsequent
irrigation is more difficult Of solution
The elementary principal govern
ing the law of prior appropriation OF
water is that the first appropriation
shall, as against all subsequent ap-
plDpriators, be entitled to as much
water as he originally located for a
designated area of land and proceed
ed with reasonable diligence to ben
officially use thereon.
This right is not limited by State
nv iota ~
tween the point of diversion of the
f1rst appropriation and the point of
diversion of the second appropriations
III it can be shown that a diversion
OF the waters OF a tributary of the
Colorado river, hundreds OF miles
above its mouth, will 80 lessen the
flow Of the river as to deprive the ir-
gators in Imperial valley of the
quantity of water they have hither-
to properly located and beneficially
used, such diversion will be enjoined
by the Federal court of the district
where it takes place The decisions
on this subject are uniform.
A hundred or more power sites on
the Colorado river might be utilized
without interfering with the rights
of irrigators; for the water, after be-
ing used to propel machinery to gen.
crate electrical energy, would be re
turned to the bed of the river un-
diminished in quantity
portion of the water taken from
the Colorado river for the purpose of
irrigation, anywhere from The Need
les, down, is returned to the bed of
tho river by percolation, and so long
as there, is left in the river enough
water to furnish the canal leading in
to imperial valley it's usual supply at
the point of diversion no legal OBJ
lection can be made to subsequent
appropriations.
But to take the waters OF an in-
pOrtant tributary of the ColOrad0 and
carry them through a tunnel to the
other side of tho mOuDtana Gn that