606, ruled that, "As between themselves bank owners must make a reasonable use of the waters of the stream. This applies to all uses, irrigation included, but a reasonable use in this state as among water users, does not apply as between riparian owners and those using under appropriation." In Longmier vs. Yakima Highlands Irrigation Co., in the Superior Court of Yakima County, the court said: "As between a riparian owner and a non-riparian diverter, the doctrine of reasonableness of use has no application."

We shall see that riparian rights are now established in this state side by side with appropriation rights, the former for private lands and the latter for public lands. The law of appropriation is confined to acquisitions on public lands, and the common law of riparian rights is the general law of streams, the banks of which are in private ownership. See Benton vs. Johncox, 17 Wash. 277. And since the rule by the Forestry Department abrogates the statute permitting water appropriations on federal lands, our public waters are practically under control of the bank owners.

Right of Appropriation.

Alongside of these rules laid down by our courts, the legislatures of 1890-91 and 1899 have enacted the following, under which statutes large appropriations of water have been made, and many millions of dollars have been spent both in putting them to beneficial use and developing the country under rights so acquired:

"The right to the use of water in any lake, pond, or flowing spring in this state, or the right to the use of water flowing in any river, stream or ravine of this state for irrigation, mining, or manufacturing purposes, or for supplying cities, towns or villages with water, or for water works, may be acquired by appropriation, and, as between appropriators, the first time is the first in right." L. 91, p. 327, Sec. 1, Rem.-Bal. Sec. 6316.

Appropriating Surplus Water.

"Any person, corporation

or

association of persons is entitled to take from the natural streams or lakes in this state water for the purposes of irrigation and mining, not theretofore appropriated or subject to rights existing at the time of the adoption of the constitution of this state, subject to the conditions and regulations imposed by law; provided, that the use of water at all times shall be deemed a public use and subject to condemnation as may from time to time be provided for by the Legislature of this state." L. 99, page 261, Sec. 1; Rem.-Bal. Sec. 6325.

Rights of Riparian Owners to Use Water.

"All persons who claim, own or hold possessory right or title to any land, or parcel of land, or mining claim within the boundaries of the state of Washington, when such lands, mining claims or any part of the same are on the banks of any natural stream of water, shall

be entitled to use of any water of said stream not otherwise appropriated for the purposes of mining and irrigation to the full extent of the soil for agricultural purposes." L. 99, P. 261, Sec. 2; Rem.-Bal., Sec. 6326.

Rights of Non-Riparian Owners.

"Any person who owns or has the possessory rights to lands in the vicinity of any natural stream or lake, not abutting such stream or lake, may take water from such stream or lake if there be any surplus or unappropriated water in such stream or lake." L. 90, P. 707, Sec. 7; Rem.-Bal. P. 6331.

Under these statutes it will be observed that there is no law limiting the amount of water that may be filed on from any stream or lake. On some streams the appropriations now on file call for many times the amount of water available, and yet there is no law prohibiting further appropriations, no officer whose duty it is to liminate excess appropriations and protect water users against future encroachments upon their rights, nor to determine when an initiated right has lapsed.

The doctrine that a riparian right is a property right, a part and parcel of the land, is acquired when the land is acquired, is not acquired by use and cannot be lost by disuse, has been upheld in California, Washington, Kansas, Montana, North Dakota, (Oklahoma possibly) and South Dakota and partially in Nebraska, Texas a':d Oregon and has been rejected in eleven states as not applicable to arid conditions where irrigation is necessary to the development of the country. Those rejecting it are Colorado, Arizona, Alaska, Idaho, New Mexico, Nevada, Utah, Wyoming, partially in Nebraska, Oregon and Texas, New South Wales, Victoria, Australia, and the Northwest territories of Canada, India and Egypt. In support of this see 20 Wash. 567, also Kinney on Irrigation and Water Rights, Sec. 1901.

Before any irrigation legislation whatever was enacted in Canada, the Canadian government sent a commissioner to the Western part of the United States to make a study of our laws. Upon his return this commissioner presented a report in which the first sug gestion was:

"The total suppression of all riparian rights in water, so that the same, being vested in the crown, may be distributed under well considered governmental control for the benegt of the greatest possible number."

The abolition of riparian rights and vesting the absolute control of all water in one strong central authority are the important provisions in the Northwest Irrigation Act.

In states adopting a modern water law, riparian users have been in no way injured, but rather have been given rights as appropriators, said right dating back to the time when they first began to use water beneficially. Their titles have been defined and provide for a

definite amount of water, the users were given established priorities. Their rights were made a matter of record and can be abstracted as land titles are. They have a market value, and are saleable because they are definite, and the purchaser has a title that is not open to endless lawsuits.

"But in this part of the country, where the demand for water is each year becoming greater and greater, as the country is becoming more and more settled, we consider that upon the question of the flow of the stream adjacent to the lands of a riparian owner, the correct rule should be that if the riparian owner does not actually apply the water to some beneficial purpose, others should be permitted to appropriate it who will use it. The tendency of the decisions is already in that direction. In fact, this is the only method of reconciling these two principles of law, which if each is strictly enforced, are so irreconcilable."

"Thus in those states which still adhere to the common law there would be at least one uniform rule of law applicable to both systems, and that is, that in order to hold a right to the use of water under either system, there must be an actual application of all of the water claimed to some beneficial use or purpose."

Kinney, Irrigation, Sec. 823.

In section 820, Kinney in substance says: On account of the rapid settlement of the arid country and the great demand for water we believe the time is not far distant when the courts will hold that the riparian owners' right as against that of appropriators above him will depend upon the amount of water which he actually applies to a beneficial use, upon the principle that his right to the water is simply usufructuary; and if he does not use the water, it is an abandonment of this right, and others may take the water who will use it. This would apply the same rule of use to the riparian claimant as the appropriator.

No good reason can be advanced why such a rule of use should not apply in both cases. The appropriator and the riparian claimant both, either directly or indirectly, acquired their rights to the use of the public waters through Federal enactments, one recognized by virtue of the custom of humid England and the other by a custom of all arid regions the world over, and there is no good reason why one should exercise a privilege not enjoyed by the other. In 47 Wash. 314 the Supreme Court of this state have indicated their intention to follow such a principle. The court says: "We think it comports with the general policy of the state to hold that this statute contemplated the use by the abutting owner of the water necessary for his present needs and for those that accrue, as he in good faith proceeds with reasonable dispatch to construct the means for applying the water to his adjacent arid lands," water to be used within a reasonable time, say two years.

The statute gives the riparian owner a preference right to the use of the water adjoining his lands upon the theory that he needs and will avail himself of the privilege thus given him. If he is not using the water and does not propose to use it as soon as practicable in the ordinary and reasonable development or cultivation of his lands, then there is no reason why the water should be withheld from others who need it and will promptly use it if permitted to do so. In view of the great need for water in this arid country, none of it should be permitted to run to waste by riparian proprietors and others. In order that the greatest good may come to the greatest number, others who will use the waters of the state should be permitted to acquire the right to their use. See also Northport Brewing Co. vs. Parrot, 22 Wash. 243. Commenting upon this case Judge Reavis says: "This case would seem to limit riparian rights to the beneficial uses of water by the riparian owners and thus leave any question of injury to the diminution in quantity of the flowing stream intangible and academic."

Dual System of Water Rights.

In those states adhering to the common law rule of riparian rights and by statute providing for the appropriation of water, as we do in Washington, we have dual systems of law, governing waters, which are antagonistic in principle, and consequently are usually clashing. One exists by virtue of a statute and the other through court decrees. These two systems are antagonistic in their foundation principles, and are therefore antagonistic when it comes to their application. Had the government of the United States taken as much pains in disposing of the waters of the public domain in as uniform and systematic a manner as it did of the public lands in the arid region, over which these waters run, the greater portion of which lands are absolutely worthless without the application of the water, the laws regarding water rights would not be in their present unsettled and inharmonious condition.

At present, the appropriators on our streams, in many instances, have filed on more water than the stream could supply; and under the constitution and statute claim the right to beneficially use it all. In opposition to this the bank owners under common law rules claim the right to have all of said waters flow past their lands; and have a right to restrain the diversion of said waters to any lands beyond those owned by the bank proprietors.

Mead says: "No one, whether an appropriator or a riparian proprietor, knows definitely how much water he is entitled to, nor how soon he may have to defend his rights in a long and costly law suit."

Eminent Domain.

By statute one wishing to acquire the water rights of a riparian owner for a public use may do so by taking them under an eminent

domain proceeding, but only such part of the water as the owner is not now using for irrigation or as will not be needed by him in the future.

Kinney on Irrigation and Water Rights, Sec. 1089, says: "That the difficulties in the way of getting the proper defendants in a suit to condemn riparian rights are practically prohibitive against the bringing of such action, although the abstract right to condemn such property may be given by statute, and that, if possible, it would be a vastly expensive proceeding."

In 45 Wash. 625, Rudkin says: "The distribution of the waters of a stream among riparian owners, according to common law prin ciples, is most difficult."

In this state the condemner must first pay for a right of way across riparian lands and then for the use of water in excess of the riparian owner's present needs and any contemplated use that said owner may desire to put the water to within a reasonable time. In other words, the bank owner is presumed to have a right to the use of the public waters of the state in excess of his present and contemplated needs, and if any one else wants to use such excess he must go to the expense of buying it on a holdup basis or undertaking the herculean task of condemning it. And yet the rights which the purchaser must buy or condemn in order to obtain immunity from injunction are recognized as of no general worth. For, in assessing damages on unused riparian rights in Nebraska, the courts have held that where the riparian proprietors were possessed of the naked right to a reasonable use of the waters of a stream, yet where such a right is not coupled with an actual diversion or application of such waters to some beneficial use, the measure of damages for future use, defeated by the taking, cannot be considered. McCook Irrigation Co. vs. Crews. 70 Neb. 115.

*

Kinney says: "In those states which adhere to the common law of riparian rights * * these rights should be condemned for public uses, and the measure of damages should be based upon the present use that is being made by a riparian proprietor, and not upon some vague, uncertain scheme for the use of the water in the future."

Under the doctrine laid down in the Still case, 64 Wash. 606, and recently followed in a case in the Superior Court of Yakima County, every riparian owner on any stream in Washington not only has a right to the use of water for domestic and irrigation purposes, but as against the appropriator of water, has a right to his method of use, however wasteful that may be. Chandler says: "The conclusion to be drawn from these cases is that the lower riparian owner may not only enjoin the diversion of the natural flow, but may also enjoin the storage of even the flood waters if such storage will result in damages, either present or prospective."