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but rather of a right to make use of the water. The property is in the usufruct, not in the water or corpus itself, and under either system, the right is an incorporeal hereditament. Although the rights under the two systems are alike in these respects, there are others in which there is a radical difference. The fundamental principle of the riparian system is that of equality equality among the riparian proprietors, not necessarily to equal amounts of water, but in the right to make what, for them respectively and under all the circumstances, is a reasonable use of the waters. The cardinal principle of the priority system, on the other hand, is discrimination-discrimination in favor of the oldest user or, as he is called, appropriator. When there are many riparian proprietors along a stream, the riparian system does as well by the most recent arrival as by the first, but the priority system awards prior rights to the different users, to the extent of their respective applications to use, in the order of the age of their respective uses -to the first user or appropriator of water, the first preference or priority to the water, to the second appropriator, the second priority, and so on. The riparian system restricts the use of the water to riparian lands, the priority or appropriation system does

not.

Physically, the riparian system is better adapted to lands situated in moist climates, while the priority is the better adapted to areas that are dry and mountainous, in that frequently the lands are the best served by uses of water away from the streams and that the water being scarce and the expense of transporting heavy, he who undertakes the expense must be assured in advance that those who come after him may not deplete his supply. Better that some users have enough and others none, than that all should go short.

The priority system is exclusively in force in the seven semiarid states of Colorado, Wyoming, Utah, Nevada, Idaho, New

Swift vs. Goodrich, 70 Calif., 103; 11 Pac., 561; Wyatt vs. Larimer etc. Co., 18 Colo., 298; 33 Pac., 144.

Mexico, and Arizona, and is partially in force in the less arid states of California, Montana, North Dakota, South Dakota, Washington, Kansas, Nebraska, Oklahoma, Oregon and Texas. The riparian system also is partially in force in these states wherein the priority system is partially in force, and is exclusively in force in all the remaining states of the Union, i. e., in all states wherein the priority system is not in force either exclusively or partially, as stated.

Historically, with us, the riparian system is the older of the two and came from England. The priority system, whatever its history may have been elsewhere, is indigenous to our own country and is one of the two bodies of substantive law (the other being mining) given to American Law by the West.

The states I have enumerated as states wherein the priority system is in force either partially or entirely, were originally, except as to Texas, portions of a great public domain of the United States acquired, for the most part, from Mexico, but also in part from France, Great Britain and from the state of Texas. As for the area which is now the state of Texas, it never was a part of the United States public domain, but having already become free and independent by revolt from Mexico, was admitted directly into the Union. The great public domain thus variously acquired by the United States was, at the time of its acquisition, not private property but almost wholly public domain of the nations ceding it.

THEORIES INVOKED TO LEGALIZE THE PRIORITY SYSTEM.

The priority system originated among the "forty-niners" of California, in what was then neither territory nor state, but the unorganized public domain of the United States, and at first was devoted to mining uses, but later the system spread and the uses were extended until now, as we have seen, seventeen states enforce the system exclusively or partially and the waters may be used for any and all beneficial purposes. When the forty-niners orig

inated the system, they were without law, save of their own making, but later the system was recognized by judicial decisions and legislative enactments of organized territories, states and of the United States. The first reported case sustaining the priority doctrine was Eddy vs. Simpson,2 decided in 1853. The first legislative recognition was by the State of California in 1851, by an act providing that

3

"In actions respecting mining claims, proof shall

be admitted of the customs, usages or regulations estab-
lished and in force at the bar or diggings embracing such
claim *

*

The first legislative recognition by the United States was the act of July 26, 1866, throwing open the mineral portion of the public domain to private acquisition and providing also that—

"whenever, 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 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 herein specified is
acknowledged and confirmed, but whenever any power,
in the construction of any ditch or canal, injures or dam-
ages the possession of any settler on the public domain,
the party committing such injury shall be liable to the
party injured for such injury or damage".

The first judicial decision of the United States Supreme Court upholding the priority system was that of Atchinson vs. Peterson *, decided in 1874. Since these first favorable recognitions, there

23 Calif., 249.

Civil Practice Act, April 29, 1851, Sec. 621, now found substantially unchanged in Code of Civil Procedure, Sec. 748. 87 U. S., 507.

have been many others, both legislative and judicial, from territorial, state and federal governments. Two of the later federal statutes, although there are numerous others, deserve especial notice. One was an act passed in 1870, providing that—

"All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights or rights to ditches and reservoirs used with such water rights as may have been acquired or recognized under"

the act of July 26, 1866. The other was the Desert Act of 1877 6 providing for the private reclamation of desert lands by conducting water thereto under the priority system, and also providing as to the waters in excess of those so needed that,

"All surplus water over and above such actual appro-
priation and use, together with the water of all lakes,
rivers and other sources of water supply upon the pub-
lic lands and not navigable, shall remain and be held
free for appropriation and use of the public for irriga-
tion, mining and manufacturing purposes subject to ex-
isting rights".

The priority system was, to the people creating and extending it, a novelty. A number of theories were advanced, and are still advanced, for the purpose of legalizing it. The principal theories have been those relating to the source of legal authoritywhether from the federal government or from the state-for manifestly no rules as to water rights, any more than other rules, can be law at all unless emanating from that one of the two possible sources, which, for the purpose of legalization, is the proper sovereign authority. That between these two theories no final choice has been made by the Supreme Court of the United States is

"Revised Statutes, Sec. 2340.
19 Stats., 377

largely due to the fact that in the main the federal government and the state, each in its own way, have supported the priority system. With the two sovereignties thus uniting to uphold the system, there has not been the occasion to decide which of the two is the one whose consent is necessary and controlling. Even so, it is surprising that a certain relation between water claimants has not presented to the Supreme Court of the United States long. ago, and in compelling manner, this question of source of authority. I refer to the relative claims of a prior riparian proprietor claiming solely as such under a United States patent to riparian land and a subsequent appropriator, both being within a state which by its laws purports to do away entirely with the riparian system— an issue there being whether it is within the power of a state to dispose of the waters under a priority system as against a prior riparian patentee of riparian land on the same stream, claiming by reason of the priority of his grant, that he receives as an incident thereto, although not expressed, the water right which, more generally speaking, grants of riparian land have always carried in the history of English and American law, namely, a water right under the riparian system. Some day, and soon, however, the issue between prior riparian and subsequent appropriator and the difference between federal and state statutes as to details of the priority system and the rivalry between the forces of federal and state conservation of natural resources must force the decision as to which of the two sovereigns is the authorized disposer of the waters and is, therefore, to be obeyed.

Two theories have been advanced in reference to the source of authority-one commonly known as the California doctrine, the other as the Colorado doctrine, the former ascribing the authority to the federal government, the latter to the state. More fully the California doctrine may be stated as follows: That when the United States by cession from the ceding nations became the owner of the lands now comprising the priority states it became as well the owner in a strict proprietory sense of the

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