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against others the right dates by relation from the commencement of the work of appropriation, the posting of notice where such is required, for the law allows a reasonable time for completing the appropriation. The work must be carried forward with due diligence, and whether or not such diligence has been exercised, is always a question of fact; the nature of the climate, soil, difficulty of obtaining labor, tools, materials, size and extent of the work all being proper subjects of consideration.
If, however, the work is not prosecuted diligently, the right to use the water dates from the time the appropriation is perfected, and is subject to any appropriation that may have intervened between the commencement and completion of such appropriation. And if water is diverted with due diligence for the purpose of irrigation, the rights of the appropriator are not limited to the amount used during the first or second years of the appropriation, but the object the party had in view at the time his appropriation began, or the water first diverted, is to be considered with the appropriation actually made. (Barnes vs. Sabron, 10 Nevada, 217.)
From the foregoing recitation of the general features of these two systems, it is apparent that the conditions of climate and soil that gave birth to the one precludes the existence of the other. The primary object under the common law doctrine was, how best to drain water off the land and get rid of it, “while under that of appropriation the problem to be solved is how best to convey water upon the land in aid of the husbandman.”
By force of its adaptability the doctrine of appropriation has been recognized by courts and legislatures in all states and territories where the arid conditions of climate and soil render artificial irrigation a necessity. In such districts, under the common law rule, agriculture could scarcely be carried on at all, for the appropriation of water for the purpose of irrigation is “entirely and unavoidably in conflict with the doctrine of riparian proprietorship.”
True, it is contended by its advocates that in dry and arid countries conditions might exist that would place the use of water for irrigation among the natural or ordinary uses, that is, where artificial irrigation is indispensable for the cultivation of the soil, and that under such conditions the common law doctrine would sanction the use of water by a riparian owner for irrigation, even to the exclusion of others below him if such use was not unreasonable, that is, if the stream should not carry more than enough water necessary to irrigate his land. But they are met with the proposition that none but riparian proprietors could under any conditions use the water for irrigation, and vast tracts of the most valuable lands must forever remain unreclaimed and useless. Modify the doctrine still further by permitting the diversion of the water from the natural stream on to non-riparian lands and the system itself is utterly destroyed. But even under the common law doctrine the rights of riparian owners cannot under all circumstances be enjoyed, but a resort to the doctrine of prior appropriation is necessary. A common illustration is found in the case of a riparian owner who first erects a dam for
operating a mill upon his own land, although it may set the water back to such a distance and height as to prevent a proprietor above from having a sufficient fall to carry a mill upon his own land, such
person is permitted to maintain his dam, and the right to maintain such dam rests entirely on the ground of prior occupancy. To illustrate further: A settles upon a portion of the public domain across which a natural water course passes, and eventually obtains patent thereto from the government under the homestead law. B settles above him on the same steam, and likewise becomes vested with title to his land. Both become riparian owners invested with all the rights in the water known to that system. A diverts the water from the stream and applies it to the irrigation of his land, in a short time building up valuable orchards and meadows. Now B conceives a desire to employ his land in like manner, but there proves to be only enough water to supply the lands of A. The right to use the water, it must be borne in mind, is not created by use nor destroyed or suspended by non-user. Now, will any riparian advocate contend that B, in such case, on account of his position on the stream above A, may make use of the water as it passes over his land to the destruction of A's property? A's right to use the water will be recognized and protected, and on the sole ground of prior appropriation.
Congress, in the year 1866, in simple recognition and confirmation of the rights established by custom under the doctrine of appropriation, passed an act providing among other things, that when ever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of 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 ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed, etc., and in 1870, by way of amendment, provided further, “that all patents granted or pre-emptions or homesteads allowed shall be subject to any vested and accrued water rights to ditches," etc. And the Territory of Washington, in the year 1873, made similar recognition by an act applicable to Yakima county, which then embraced Kittitas county, the provisions of which are in part as follows: “That any person or persons, corporation or company, who may have or hold a title or possessory right or title to any agricultural lands within the limits of Yakima county, Washington Territory, shall be entitled to the use and enjoyment of the waters of the streams or creeks in said county for the purposes of irrigation and making said land available for agricultural purposes to the full extent of the soil thereof,” and “that in all controversies respecting the right to water under the provisions of this act, the same shall be determined by the date of the appropriation as respectively made by the parties.” And beside sanctioning the right of the non-riparian land owner to divert the waters from natural steams upon his lands, it made provision for right-of-way for ditches and canals for such purposes, over and across intervening lands, riparian and non-riparian. (See Laws, W. T., 1873, p. 520.)
And it may be noted in passing that the first and the only cases that have ever been before the supreme court of either the Territory or State of Washington, involving the right to water for purposes of irrigation, came from Yakima and Kittitas counties.
While all the decisions of the supreme.courts of the Territory and State of Washington have been unanimous in sustaining the doctrine of appropriation as applicable to that portion of our state situate east of the Cascade Mountains, when the right to water for any beneficial use has been involved, the controversies have all rested on appropriations made prior to the acquisition of title from the government, but in all these cases the courts have intimated that after title to riparian lands the owners thereof might invoke. the doctrine of riparian rights. If the law of 1873 meant anything further than a recognition of the local customs that had already established the right of prior appropriation where title still remained in the government, it was intended to abrogate the common law.
By its terms it does not relate alone to those holding possessory title to public lands, and its provisions are squarely in derogation of the common law rule of riparian rights. Of course if the common law rule of riparian rights is applicable at all in the central portion of our state, any riparian lands acquired before the law of 1873 would be invested with all the rights of that doctrine as limited and modified to fit existing conditions, and no legislation could disturb them because being vested rights they were not subject to such legislation. Without any legislative act adopting the common law, that system follows or rather accompanies the AngloSaxon people wherever they settle in communities as a part of their civilization, furnishing the rule for gauging their personal and property rights, and guiding the decision of courts whenever there has been no positive enactment by which another rule is provided. But in the year 1863 the legislature of the Territory of Washington passed an act in the following language: “The common law of England, so far as it is not repugnant to or inconsistent with the constitution and laws of the United States and the organic act and the laws of Washington Territory, shall be the rule of decision in all courts of this territory.” And the legislature of the State of Washington in 1891 likewise provided: “That the common law of England, so far as it is not inconsistent with the constitution and laws of the United States or of the State of Washington, nor incompatible with the institutions and conditions of society in this state, shall be the rule of decision in all the courts of the state.” By force of these legislative acts it is claimed the common law rights of riparian owners attach from the date of acquisition of title to such lands as are traversed by natural water courses, and from thenceforth no adverse right can be substantiated on appropriation.
This is certainly true if the common law doctrine of riparian proprietors is applicable at all in sections where irrigation is a necessity. Under like legislative enactments in some states the su
preme courts thereof. have held that the doctrine by reason of its inapplicability to existing conditions of land and climate could under no circumstances be invoked, and that by such enactments it was not the intention of the legislature to adopt that part of the common law, but squarely the opposite intention.
See Reno Milling, Smelting and Reduction Works vs. Steven
son et al., 21 Pacific, 327. The laws passed by the legislature of the State of Washington since the adoption of our constitution, referred to later on, are equally as strong in derogation to the common law doctrine as that of the territory just quoted.
Conceding that after government parts with title to riparian lands the common law rights of riparian owners attach, at what time do such rights become vested is a question of importance. In the case of Thorpe vs. Tenam Ditch Co., and also Ellis vs. Pomeroy Improvement Co., the supreme court of the Territory of Washington held that no rights attached to riparian owners, as such, until the government had made primary disposal of the soil, and that such took place at the time of final proof and payment by the settler; in both cases the court rejected the claim that such rights, after patent, related back to the date of filing and entry on the land. With all due respect to the opinion of the court in these cases it seems difficult to understand why, if the common law rights of riparian owners ever accrue, they will not relate back to the first step taken towards obtaining title, at least to the date of entry and filing, for when entry is made under the land laws of the United States especially as homesteader or pre-emptor a right in favor of the settler attaches to the land, which can be defeated only by failure on part of the settler to comply with the law. This right, as has been declared, amounts to an equitable interest in the land subject to future performance by the settler of certain conditions in the event of which he becomes invested with full and complete ownership. If the water is an incident to the land immediately upon obtaining legal title, why is it not an incident thereto when the equitable title vests in the land? The supreme court of the United States, in the case of Sturr vs. Beck, held that after patent the right of riparian owner related back to the date of filing. (See 10 Supreme Court Reporter, 348.)