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Where a party is induced to settle upon a portion of the public domain by reason of the fact that a natural water course passes over and across it he should not, after settlement and possession in good faith, either before or after patent, be deprived of the water of such natural stream by reason of its subsequent diversion; but it does not of necessity require the invocation of the riparian doctrine to protect his rights. The water in its natural course may percolate through the soil, rendering it fertile by sub-irrigation, so that artificial irrigation is unnecessary, then why does not the appropriation and occupation of such land carry with it an appropriation of the water that so naturally irrigates it? The water is a part of the estate he has chosen to appropriate. It is an incident to the land as much as are stones, trees or natural grasses. The theory upon which he obtains title to government land is prior appropriation, and the act of settlement or filing on the same is an appropriation. And, although the courts have always defined an appropriation of water to consist in diversion and use, and have determined the amount of the appropriation by the size of the conduits through which it is conveyed, or the number of acres cultivated thereby, there has never been advanced any sound reason why the water that naturally by percolation sub-irrigates a body of land is not included in an appropriation of the land itself to the extent, at least, of the amount necessary to so irrigate the same, without


artificial diversion of the water. But the supreme court of the State of Washington in the case of Rigney vs. Light and Water Co., 9 Wash. 582, recognized the doctrine of riparian rights in all its fullness in language as follows: “The respondent having this clear legal right to the natural flow of the waters of Clover creek over his lands, cannot be unwillingly deprived of it without compensation or due process of law, even by the public or for public use, without disregarding the fundamental law of this state. Even if his damages were shown to be slight or merely nominal (which is not shown), the right still exists and cannot be violated with impunity. Actual damage is not indispensable as the foundation of an action; it is sufficient to show a violation of a right. The law will then presume some damage.” The same rule was announced in Crook vs. Hewit, 4 Wash. 749. These cases, however, came from that portion of our

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state lying west of the Cascade mountains, where the climatic conditions are so nearly like unto those of the land wherein the riparian doctrine was born that it could not but prevail, and the case was tried on the theory that it did prevail.

And the supreme court of the state, in the case of H. M. Benton vs. Philip A. Johncox et al., decided within the past few days and which has not yet been reported, which case was appealed from Yakima county, announced the prevalence of the doctrine of riparian rights in all cases where the lands traversed by natural streams have passed into the hands of private owners, but the doctrine is therein modified, perhaps, to the extent that the water may be used by riparian owners for the purposes of irrigation, and that unless a riparian proprietor is deprived of some use of the water by reason of a diversion, he cannot be heard to complain. However, in that case, while the question of the recognition of the doctrine of riparian rights was squarely at issue, many of the riparian owners whose rights were involved therein had acquired their lands prior to the diversions complained of, and also prior to the law of 1873. Yet, the supreme court in that case has announced that the common law doctrine of riparian rights does prevail in the State of Washington, and governs in the determination of water rights wherever the government has disposed of its lands, and that neither the law of 1873 nor the laws of the State of Washington passed since we became a state have abrogated the common law doctrine.

If this doctrine is to stand as the law of the State of Washington without modification, the few people who have settled on the banks of the streams and non-navigable rivers of Central Washington can forever prevent any diversion of the waters of the same on to nonriparian lands, and the vast tracts of arid land, whose situation seem to indicate that nature intended that they should receive their source of fertility from these streams, must remain unreclaimed forever.

The waters of the Natchez, the Yakima, Teanaway, Wenatchee, Chewawa, Entiat, Methow and Okanogan, with all their branches, capable of supplying sufficient water to irrigate millions of acres, must flow on as they were “wont” by nature, idly to the sea, actually supplying but a few paltry farms, while this “phantom" of riparian rights hovers over a parched and barren waste. There is one only remedy, one only way in which, under these conditions, water may be appropriated, and that is by condemnation. If our constitution is permitted to stand as against this common law theory, it would seem to afford a remedy. Article XXI, sec. 1, declares, “the use of the waters of the state for irrigation, mining and manufacturing purposes shall be deemed a public use.”

It has been decided that such declaration by legislative act could amount to nothing; unless the use is in fact public it cannot be made so by legislative act.

Taylor vs. Porter, 4 Hill, 141.

But the declaration in a constitution is an act of the people in their sovereign capacity which fixes a legal status that commands recognition from all departments of government. And under our constitution and laws the right to condemn either land or water is not confined to communities or aggregation of people, but may be exercised by the individual; the constitutional declarations relates to the individual use of water as well as that of the community.

Ellingshouse vs. Taylor, 48 Pac. 757.

Cooley's Principles of Constitutional Law, 335. The fact that the right to the use of water by prior appropriation is based on local custom would seem to make it necessary in a suit to establish such right, to plead the existence of such custom and prove it on the trial, if contested, and that practice has been followed to some extent in Central Wasbington where such suits have arisen; but the supreme court in the case of Isaacs vs. Barber, 10 Wash. 124, held that the courts must take judicial notice of such custom.

See also Clough vs. Wing, 17 Pac. 453. The legislature in 1889-90, passed a law entitled "An act providing for the organization and government of irrigation districts, and the sale of bonds arising therefrom,” which law is identical with the Wright law of the State of California. It is intended to invest communities with power to raise revenue by issuing bonds for the purpose of constructing canals, reservoirs, ditches and other necessary works for irrigating the lands of such district and to appropriate waters therefor, and generally control and superintend

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the supplying of such water. Some few districts were organized under this law, but none have yet fully consummated the object of their organization, principally, perhaps, on account of the low ebb of business and the stringency of money that has prevailed since the passage of the law rendering the sale of bonds almost impossible. But another fact that has had some tendency to retard the work of these organizations has been the unsettled condition of the fate of the Wright law referred to. Its constitutionality was questioned, but uniformly sustained in several cases in the courts of California.

See Turlock Irri. Dist. vs. R. W. Williams, 76 Cal. 360.
Central Irri. Dist. vs. R. E. De Lappe, 79 Cal. 351.
Henry J. Crall vs. Poso Irri. Dist., 87 Cal. --.

Directors of Modesto Irri. Dist. vs. Tregea, 88 Cal. But in the case of Bradly vs. Fallbrook Irri. Dist. et al., in the United States circuit court for the southern district of California, the constitutionality of the law was again questioned, and Judge Ross of that court, in an able opinion rendered July 22, 1895, decided adversely to the law. This decision was grounded mainly on the proposition that the purposes for which the diversion were to be made thereunder and assessments levied for carrying out the objects of such organization, did not constitute a public use, and that to tax property within the district for the purpose of raising revenue to meet the expenses of organization of the district — for construction of works, etc., was taking property without due process of law. (68 Fed. Rep. 948.)

This case was appealed to the supreme court of the United States, and on November 16, 1896, that court, in an exhaustive opinion by Justice Peckham, concurreå in by all the other justices save Mr. Chief Justice Fuller and Mr. Justice Field, who dissented, the judgment of the circuit court was reversed and the law sustained.

There will be found in the Session Laws of 1889–90, commencing at page 706, an act entitled “An act providing for the use of water for purposes of irrigation, and providing for the condemnation of the right-of-way for ditches to carry water for such purpose.” This law is intended to provide not only for the appropriation of water and condemnation of right-of-way for ditches, but also for the condemnation of water rights where such have vested by reason of riparian proprietorship, when the water is not used for irrigation, and to provide for an equitable distribution of water when there occurs a shortage. It provides for the appointment of commissioners in the counties where irrigation is carried on, to superintend the diversion and use of water for irrigation purposes, and generally directs the manner of diversion and use of water and the settlement of conflicting rights thereunder. It is one of the most important acts yet passed by the legislature relative to irrigation. At the same session, the unit of measure for water for irrigation, mining, milling and mechanical purposes was established at one cubic foot of water per second of time. The legislature in 1891 passed an act entitled, “An act concerning appropriation of water for irrigation, mining and manufacturing purposes, for supplying cities, towns and villages with water, and for the use of water works." It provides for posting notice of intention of appropriating water and filing same in the office of the county auditor, making such notice the initiative step in the appropriation, and the date when the rights of the appropriators vest, when work is completed. It gives six months time after posting notice to commence work. There existed no necessity for any such law. It was passed at the instigation of a certain corporation to enable it to get control of all the sources of water supply of Central Washington, and immediately upon its passage, it having of course been provided with an emergency clause, the notices provided for were posted on all the lakes forming the sources of water supply for the larger streams of Central Washington. It may be considered by some a good policy to permit companies to get control of large water supplies so that canals may be constructed and a speedy reclamatio and settlement of vast bodies of arid land attained, thereby adding much to the present taxable wealth of the state, but is certainly a short-sighted statesmanship, as well as an utter lack of patriotism that for momentary advantage would adopt a policy that in the end levies a deathless tribute upon the generations to come after us in the use of an element that is necessary to their very existence. It is a question of the most serious moment whether a permanent right in water should ever be permitted to vest in any but the state, and especially for the purposes of irrigation in any save those who own and till the soil.

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