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I think no one can read his opinion in this case without a regret that death prevented his further services on the bench.

It was seldom that Marshall permitted the court to get away from him on these great constitutional questions. A careful study of his dissenting opinion in this case will possibly convince many that he had the best of the argument here.

If either his opinion had prevailed, or that of Mr. Justice Trimble, we would not have the present condition, which enables a debtor to cancel his obligation as against a creditor in his own state, in a manner which is not available to him against one across the state line.




There are two doctrines of water rights in the United States, one, that of the common law of England, known as riparian rights, the other, that of appropriation, commonly termed the Pacific coast doctrine. Neither system owes its existence to positive law, both originated in custom and usage.

Under the doctrine of riparian rights, every owner of the land over or adjacent to which a natural water course passes, is entitled to have the water of such stream "flow as it is wont by nature, affected only in quantity and quality by the consequences of a reasonable use thereof by other like proprietors.” This right is inseparably annexed to the soil of the riparian owner and passes with it, not as a mere easement or appurtenance, but as part and parcel of it. Use does not create the right and disuse cannot destroy or suspend it. This doctrine had its origin in the Island of Great Britain, under conditions of climate peculiar to its position in the path of the gulf stream, in an atmosphere laden with moisture which is precipitated with lavish profusion upon that favored spot. Under that law the riparian owner may use the water in its course, but is required to return the same to its natural channel, without dimunition in quantity or deterioration in quality, so that there shall be no interference with a like use thereof by those proprietors below him. Under it two classes of uses of water are recognized, termed respectively, natural or ordinary and artificial or extraordinary. The natural uses are defined to be such as are absolutely necessary to be supplied for the purposes of existence: to quench the thirst, for household purposes and for watering cattle and other domestic animals. All other uses are deemed artificial. For the purpose of supplying these natural wants a riparian proprietor may use and consume the entire water of the stream, if it be requisite

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for the purpose, as such would not be deemed an unreasonable use of the same.

But to supply the artificial uses, the party is required to so employ the water that its flow shall not be hindered to the injury of those below him. He is not permitted to drain his land so as to increase the food to the injury of those below, or dam the water back upon the lands above him. Under this doctrine the water of a natural water course can never be diverted absolutely away, but at all events, after a reasonable use by a riparian proprietor, must be returned to its natural channel; for the law gives the proprietor no property in the water itself, but simply a right to use it as it passes along, and never tolerates any claim of right whatever by any save the proprietors on its banks.

The doctrine of appropriation is a part of the civil law. It is, however, commonly understood to be a new doctrine. This idea is based on the fact that its principles were first invoked in this country, in the mining districts of California, where all the land and water belonged to the public domain. There could be no acquisition to land or water for mining purposes other than that of occupancy and use. Under these conditions custom conceded to the first occupant of a portion of the public land for mining purposes a right to hold and work the same as against all others save the government itself. This right constituted'the source of title and was recognized and sanctioned by courts and legislatures. The general government as proprietor of the public domain was presumed to have assented to such occupancy and use of its lands. As the land was valueless for the purposes of the miner without the use of water, and as the water could only be utilized by diverting it, oftimes many miles away from its natural channel, the same rule of occupancy and use was naturally applied to the establishment of title to water. From the use of water for mining purposes to that of irrigation was a natural sequence. The employment of it for the purposes of gardening and eventually for general farming was found almost if not equally as profitable as that of mining, and custom early placed the one use on an equal footing with the other. The common law system of riparian rights never suggested itself to these pioneers of a new civilization as being applicable to their condition and adequate to secure and protect their novel rights; but the doctrine of prior appropriation on account of its natural adaptation, soon extended itself to all sections where conditions of land and climate rendered irrigation necessary to successful tillage of the soil. So that for the reason that the application of the principles of this system is new to the modern civilization of this country, the system itself is termed new. It is, in truth, however, older than the common law. In the language of Judge Barnes, of the supreme court of Arizona, in the case of Clough vs. Wing: “The right to appropriate and use water for irrigation has been recognized longer than history, and since earlier than tradition, evidences of it are to be found all over Arizona and New Mexico in the ancient canals of a prehistoric people, who once composed a dense and highly civilized population. The canals are now plainly marked, and some modern canals follow the track and use the works of this forgotten people. The native tribes, the Pimas and the Papagoes and other Pueblo Indians, now, as they for generations have done, appropriate and use the waters of these streams in husbandry and sacredly recognize the rights acquired by long use, and no right of a riparian owner is ever thought of. The only right in water is found in the right to conduct the same through their canals to their fields, there to use the same in irrigation. The same was found to prevail in Mexico among the Aztecs, the Toltecs, the Vaquis and other tribes at the time of the conquest, and remained undisturbed in the jurisprudence of that country until now. It existed also in Peru, though there the appropriation was made by the state, which constructed and maintained the canals so as to provide water for the use of the tillers of the soil. The Spanish conquerors brought the same ideas with them from Spain where they prevailed then as now. The Lombard kings, following

, the Roman practice, encouraged and extended irrigation in Italy; from Lombardy the art extended to France, while the Moors encouraged it in Spain. In Egypt, Persia, India and China this form of husbandry has been practiced from time immemorial and still continues. Under the civil law water was publico juris, and by that law the first person who chooses to appropriate a natural stream for a useful purpose has title against the owner of the land below, and may deprive him of the natural flow of the water."

The doctrine of appropriation recognizes rights in water based entirely upon appropriation and use. It establishes an interest approaching the dignity of property in the water itself, rather than a mere usufruct in its flow. It makes no distinction where the water is to be used, whether upon riparian lands or those situate entirely away from it. It sanctions an absolute diversion of the water for beneficial uses and requires no return of the same to its natural channel. The basis of right under this system being appropriation, such rights are adjudicated and determined according to date of appropriation, the maxim being, first in time first in right. And he who first diverts and uses the water of a natural stream may continue to so do regardless of those who may acquire title to the land over which the same may pass, whether above or below his point of diversion. A party may thus divert all or only a portion of the water of a natural stream, and thereby acquires a right to its permanent use and enjoyment. When only a portion of such water is appropriated, a subsequent appropriation may be made by a second party of the surplus, and a second, third, etc., each appropriator being protected in his specific appropriation, respectively, against all others, prior as well as subsequent. A party may change the place of his diversion and he may change the use to which the water is applied, but neither to the damage of or interference with the intervening rights of others. The appropriation of the waters of a natural water course carries with it the waters of all its branches and its source, so that no subsequent appropriator may divert the water from any branch or feeder, or from any

lake or spring forming the source of water supply for such stream to the diminution of the amount of water so appropriated.

But the appropriation must be for useful or beneficial purposes; one is not permitted to divert the waters of a stream and let them run to waste, or for the purposes of future speculation. It is not requisite, however, that the appropriator own the object to which the water is to be applied; hence, water may be appropriated by an individual or company for the purpose of supplying the same to cities, factories, miners or farmers. What constitutes an appropriation is largely a question of fact—it has been defined to be “the intent to take, accompanied by some open physical demonstration of the intent, and for some valuable use. After such intent bas been duly manifested by commencing the work of diversion, while the enjoyment does not commence until completion, yet as


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