The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1919-11-20
MINING WATER RIGHTS
As DEFINED BY COURT
ELEMENTS OF OWNERSHIP DE-
FINED IN FEDERAL AND
STATE RULINGS.

&c. C. Sherlock in Engineering and
Mining Journal).
The courts have long recognized
the fact that water is an important
element in mining operations. The
U. S. supreme court has said thai the
right to use water in mining opera
tons is beyond dispute, but that the
use of water in this sense is a pub
lie use within the legal meaning of
the term. The California court has
said that the water of streams in
mining regions car not be made the
subject of private ownership so long
as it continues to flow in it's natural
course, but that a right may be &C
quired to its use, which will be re-
garded and protected as property,
although it does moi carry with it any
specific property in the water itself.
This view is general among the
courts. The property is in use or the
right of use, and not in the water it.
self. Although it may be difficult to
draw the distinction in some cases, it
is easy to do so in others. Water is
"a public commodity-something that
is owned only by the sovereign or
state. 1t belongs to all, with equal
right; hence the property in it al
not pass to individuals so long as the
water remains in it's natural course,
thu nrnf,artU in ~ cti11 hninu racaprnI
to the state, although the right to use
may be acquired by another.
No technical method is required by
which the right to use is to be ac-
quired. All that is necessary is the
mere appropriation Of the water to
ones own purposes. One view which
the courts take, and which is follow
ed in a great number of jurisdictions,
is that the right to use, when once
acquired, is a franchise-'1ike that of
digging gold, and Is founded on a pre-
sumption of general grant from the
sovereign and a license from the
state"
Test Of Right.
The right to the use of water Is
subjected by the courts to a given
test, which may be announced as a
general rule Of procedure. The first
test is appropriation and the second
test is the use Of the water itself. If
the water has been appropriated but
not used, no right Is acquired which
can be recognized at law. If no APP
preparation has been made, but merely
an intent to appropriate exists, no
right of use is acquired in the water.
The courts have likewise said that 1t
is improper to say that the tests to
follow are the method and place of
the use, these not being sufficient to
acquire legal rights in the water.
1t is well to keep in mind that the
right to use water as outlined above
can be acquired only from water of
the public domain and a o apply
to water already under appropriation
by another or to water exclusively
owned by another.
Inc Utan court mas SAID tnat per-
colating water, so long as 1t remains
in an artificial tunnel or mining claim
of the proprietor of land, is not open
to the appropriation by another. The
revised statutes of the United States
provide that when rights for the use
Of water in mining operations have
vested, or have been recognized by
local custom, laws or decisions Of the
courts, the right of way for the con-
struction Of bitches shall be confirm
ed. In Colorado 1t has been held that
all patents are subject to such vested
rights in the use of water, but though
a vested right in the use Of water
may carry with it an appurtenance to