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Published online by Cambridge University Press: 02 September 2013
Contemporary with the recent and very rapid industrial development of the United States has been observed an unexampled liberality of juristic thought. Especially has the process of settlement and industrialization of the West been pervaded by certain unusual social and economic influences, and likewise has been comparatively free from that judicial conservatism prevalent during the periods of colonization and settlement of the eastern and central portions of the country. Extremely dynamic forces, finding their origin in the manner of settlement, the physical characteristics of the country, and the personal attributes of the population, readily developed what may be termed specialized forms of social and legal institutions. As economic and political factors have become adjusted and a stable social poise has been approached, some of the diverging branches of the new sociopolitical life of the West have been pruned back to antecedent form, but others have become component parts of a permanent organization. Incident to the perpetuation of an unusual industrial structure, there have come about the development of new legal concepts which have assumed special relation to property rights in natural resources. This was possible only upon the abrogation of common law precedents and the renunciation of doctrines formerly conceded to be fundamental in American practice.
1 Deane Mellville M. Bigelow, of the Boston Law School, has recently admirably presented this scientific conception of the law. See New National Forces and the Old Law, Atlantic Monthly, December, 1906.Google Scholar
2 California, Colorado, Idaho, Montana, Nevada, Utah, Wyoming, Arizona and New Mexico.
3 Kansas, Nebraska, North Dakota, Oregon, South Dakota, Texas and Washington.
4 The Mormon colonists of Utah first diverted the waters of City Creek, near Salt Lake City, for the purpose of irrigation in the summer of 1847.
5 1847.
6 1849.
7 1859.
8 In the seven arid States (see note 2), with the exception of California and Nevada, and in the Northwest Territories the abrogation of the common law doctrine was accomplished by statute or constitutional provision. California nominally retains the common law. Nevada, after having followed California's common law precedents for many years, through the supreme court, reversed all previous holdings, as being irrelevant to existing climatic conditions (Jones v. Adams, 1885, 19 Nev., 78; Bliss v. Grayson, 1889, 56 Pac., 231), which decision has since been enacted into statute. In California and the several States of the semi-arid belt, the common law of water rights has been so distorted by statute and judicial decision as to amount to a practical nullification of the doctrine of riparian rights.
9 The States assumed nominal as well as actual freedom in the control of natural waters within their boundaries upon the passage of the federal acts of 1866 and 1870. These acts were supplementary in making public lands, then occupied and to be occupied or appropriated, subject to prevailing local laws and customs.
10 The question of rights in inter-state streams for purposes of irrigation was recently-brought before the Supreme Court of the United States in such a way as to directly involve the respective claims of the common law and the western doctrine of priorities. The case in question (Kansas v. Colorado, et al.) concerned rights in the use of the waters of the Arkansas River—an inter-state stream having its headwaters in Colorado and flowing through Kansas. Colorado, being an arid State, appropriated the waters of the Arkansas for purposes of irrigation in accordance with the so-called doctrine of appropriation. Kansas invoked the doctrine of riparian rights under the common law to force Colorado irrigators to release the waters of the stream that they might flow without diminution and in their natural channel for the benefit of the riparian proprietors of a somewhat less arid territory. The defense of Colorado rested, first, upon the question of actual diminution of the flow of the stream within the State of Kansas, and, finally, upon the natural conditions and necessities of an arid climate supported by the doctrine of appropriation, as incorporated in the constitution of the State and sanctioned by the constitutional powers of Congress together with the provisions of the national statutes as found in sections 2339 and 2340, U. S. Revised Statutes. A third contention was introduced into the suit by the filing of a petition in intervention, on the part of the United States, disclaiming the justice of the claims of either party to the suit, as affecting the rights of the government under the reclamation act and as original owner in the settlement and sale of lands belonging to the United States. After long deliberation, the court appeared unwilling to take advanced ground upon the question of water rights on inter-state streams and temporized the entire matter by dismissing both the petition of intervention and the bill of the State of Kansas without prejudice to the rights of either to renew the claims upon similar and sufficient grounds. (Kansas v. Colorado, et al., decided May 13, 1907.)
11 The language of the Roman law is as follows:
“Uses of a river for navigation or of its banks for tying boats and landing cargo are public, but banks and all thereon growing are property of those whose land they adjoin.” (Justinian, , Digest, 43Google Scholar, 12, i.)
“Whatever in a public river or on its banks you do, or whatever into a public river or upon its banks you put, whereby the landing or navigation is made worse, you shall restore the former condition.” (Justinian, , Digest, 43Google Scholar, 12, 1, 19.)
12 Lyon v. Fishmongers Co., 1 App. Case, 662.
13 Chancellor Kent's definition of riparian rights has met with universal approval within the jurisdiction of English practice: “Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant or an uninterrupted enjoyment of twenty years which is evidence of it.” (3 Kent's Comm. 439.)
14 In its generally accepted form, the doctrine of riparian rights, as applied in the United States, is as follows. “The water of permanent running streams and of inland lakes is sacred to the common use alike of all riparian proprietors upon their borders. Each proprietor may use the water for all reasonable purposes as it passes through or by his land, provided that he does not interfere with the public easement of navigation inall navigable lakes and rivers; but he must, after its use, return it without substantial diminution in quantity or change in quality to its natural bed or channel, before it leaves his own land, so that it will reach his adjacent proprietor in its full original, and natural condition. … More extensive or exclusive rights than these against other riparian proprietors can only be acquired by grant from them, or by prescription which presumes a former grant.” (Black's, Pomeroy on Water Rights, p. 4.Google Scholar)
15 7 Wall., 272, 11 Federal Rep., 389.
16 Modern practice in the United States has evolved the following arid region definition of riparian rights under the common law: “Every proprietor of land on the banks of a natural stream has an equal right to have the water of the stream continue to flow in its natural course as it was wont to run, without diminution in quantity or deterioration in quality, except so far as either of these conditions may result from the reasonable use of the water for irrigation or other lawful purpose by upper proprietors. He may himself use the water for necessary purposes in a reasonable manner, having due regard to the rights and needs of other proprietors, provided he returns to its natural channel, before it leaves his estate, all the water not necessarily consumed in his own lawful use. The right of the riparian owner is limited to a simple usufruct in the water as it passes along, and does not include a proprietorship in the water itself.” (Long on Water Rights, ch. ii, ¶9, and cases there cited.)
In the arid districts, the general question of a riparian right touches the authority of the proprietor to take water from the stream, while in the earlier jurisdiction of the common law the right to a continuous flow was more frequently sought.
17 Alabama, Connecticut, Maine, Massachusetts, New Jersey, New York, Pennsylvania, and Wisconsin.
18 Opinion of Judge Heydenfeldt in Conger v. Weaver, 6 California, 548.
19 The southern part of California is distinctly arid, and highly developed agricultural industry demands a most scientific and economic distribution of water for the purposes of irrigation. The humidity of the State increases with the latitude and the northerly portions are not confronted with the serious problems of extreme aridity, peculiarly productive horticultural lands, and insufficient water supply. For this reason, economic interests differ widely in different sections of the State, and to this cause may be traced the incongruity of existing laws.
20 Wiel, , Water Rights on Western Streams, §14.Google Scholar
21 14 U. S. Statutes, 253.
22 16 U. S. Statutes, 217.
23 The provisions of the Colorado Constitution relating to the subject are as follows: “The water of every natural stream, not heretofore appropriated, within the State of Colorado is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriationas hereinafter provided.” (Art. xvi, sec. 5.)
“The right to divert unappropriated waters of any natural stream for beneficial use shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the services of all those desiring to use of the stream, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes over those using the same for manufacturing purposes.” (Art xvi, sec. 6.)
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