Year: 1873

lions OF tnlS 1errltOTy nave OF necessity


changed the common law upon the subject


of riparian proprietors; or that these show


that that law is inapplicable in part at least.


accordance with the demands of our section,


the common law was 80 modified that any


one living upon the banks of running


stream, as riparian proprietor, can divert


the waters thereof for the purposes of irriga-


ton to the extent of the land he cultivates


and that he who is nearest to the source OF


the stream shall have by virtue of his posi-


ton the right to first divert the waters OF the


same to the exclusion of those below him


thereon, it necessary to irrigate his land,


even though those whose lands are nearer


the mouth of the stream should have Occu-


pied them for years, and spent large sums of


money in improving them and making a


homestead thereon prior to the fortunate set


tier above them. Surely the climatic and


physical conditions of this country cannot be


such as to create a law so at variance with


natural equity, and so fatal to the improve


ment and prosperity of our best agricultural
districts. 1t must be apparent to all that the


best agricultural lands in this Territory are
not at the sources of the streams. Our broad


valleys as rule are better adapted by nature
for settlement and agriculture, than our mar


row and rocky canyons and mountain gorges.


If we were called upon to say what were the


necessities of this country in regard to the use


of water for the purposes of irrigation, we


should reply that there was a demand that


water should be used for that purpose; and


that the considerations of the general welfare


of the country, and the principles of natural
equity should guarantee to the prior appro-


priator of water for such use, the first right


to the use of the same to the extent of his
necessities for domestic purposes; the quench-


ing of the thirst of himself or animals, and


for agricultural purposes. We can see no


reason why, if the common law is to be


changed by the considerations above named,


it should not be changed to suit the wants of
the country, and in accordance with the


principles of equity. We hold, however, that
d law that is part of system of laws which
our Legislative Assembly have adopted, can
not be annulled or varied by court through
any such considerations. In the second place,
the common law upon the subject of riparian
is of a general nature In the
third place, has this law been repealed or
modified by the act of the Legislative AS
sembly, or by act of Congress?


The Congress of the United Stntes, by act
approved July Goth, 1866, entitled can Act
granting the right of way to ditch and canal
owners over the public lands, and for other
purposes provides:


''That whenever, by priority of possession,
rights to the use of water for mining pur-
poses, agricultural, manufacturing, or other
purposes have vested and accrued, and the
same are recognized and acknowledged by
the local customs, laws and the decisions of
the courts, the possessOrs and owners of
such vested rights shall be maintained and
protected in the same; and the right of way
for the construction of bitches and canals
for the purposes aforesaid is hereby acknowl-
edged and confirmed"


If the right to the waters OF the Prickly
Pear creek have accrued to-, and become
vested in the plaintiffs by priority of posses
sion, and the right to the same has been ac-
and recognized by the customs,
laws and decisions of the Courts of this Ter
ritory, then there is no doubt but that the
common law doctrine in relation to the rights
of riparian proprietors has been changed.
It is not denied in the answer but that the
plaintiffs have appropriated q portion of the
waters of the said creek. The plaintiffs must
recover, if at all, upon their right of appro-
priation. They have based their right upon
this, and not as riparian proprietors. Ever
since the settlement of this Territory it has
been the custom of those who settled them
selves upon any portion of the public domain
and devoted any part thereof to the purposes
Of agriculture, to dig bitches and turn out
The waters of some stream to bs used to lrrl-
gate the same. This right has been general
y recognized by our people. 1t has been uni
versally conceded that this was necessity
in agricultural pursuits. So universal has
Deen this usage that I do not suppose there
has been parcel of land to the extent of
one acre cultivated within the bounds of this
Territory that has not been irrigated by wa
Ter diverted from some running stream.
Both plaintiffs and defendants recognize this
custom and the necessity of the same. Both
ire diverting water from the Prickly Pear
for this purpose If practice so universal,
md which has so long prevailed, does not
establish custom, it would be most difficult
O do so. There have been but few disputes !
10 to this time, upon the subject of the use
# water for the purposes of irrigation; and
II not one of these, SO far as we are inform |
d, has the right to devote water to such !
lse been denied. It may safely be asserted,
he right to appropriate water for the pur-
poses of agriculture has been recognized snd
by the customs of this Terri Terri
ory.


In the second place, has this right been
and recognized by hwY Inc
irst Legislative Assembly of this Territory
,assed an act upon the subject OF irngauon.
The first section of that act is as follows:


ssThat all persons who claim, own or hold
possessory right or title to any land or par
el of land within the boundary OF MON
ana Territory, as defined in the Organic Act
# this Territory, when these claims are on
he banks, margin or neighborhood OF any
trcan of water, creek or river, shall bc en-
tiled to the use of the water of said stream,
,reek or river for the purposes OF Irrigation
nd making said claim available to the run
xtent of the soil for agricultural purposes:


The second section provides for the right