7

right to use the waters flowing over these lands; that while such proprietory owner, statehood or state sovereignty was conferred upon what are now the priority states; that sovereignty is different from ownership, and the conferment of the former upon a state passed only political powers and not property; that in consequence, although the federal government is no longer sovereign in respect to the waters within the priority commonwealths, the United States still has its original property right to use the water just as it continued to own the public lands themselves; that by the federal constitution congress alone may dispose of federal property and, therefore, of this usufructuary right of the United States and, accordingly, no state has a right by virtue of its statehood or sovereignty to determine what system of water rights shall prevail therein or who may be the owner of such rights or how they may be acquired or for what purpose; that no one has acquired or can acquire any usufractuary right in the waters except by and with the consent of the federal government; that the act of '66 and the Desert Act of '77 (to both of which I have referred), the principal federal statutes purporting to create priority rights to the use of water in others than the United States, are really grants of property rights in the use of water to unnamed grantees, to take effect upon performance by them of the physical acts ("appropriation") required by the laws of the different priority states; that where there are, in a priority state, rival claimants to water from the same stream, one claiming as a prior appropriator and the other merely as a patentee of the United States to riparian land, both are United States grantees of the right to water, but the prior appropriator prevails to the extent of his appropriation over the subsequent patentee because of being the earlier grantee; that on the other hand, where the patent to the riparian land is prior to the appropriation, the grant of the land carries with it a right to a riparian use of the water and, accord

'Art. IV, Sec. 3, Clause 2.

ingly, to the extent of such riparian use the prior patentee prevails over the subsequent appropriator; that to the extent the United States, at the time of admitting a priority state into the Union, had not granted away its property rights in the use of the waters in the form of grants of riparian lands to patentees or of appropriations by appropriators, or has not done so since, the United States is still the owner thereof, with full power of disposition.

The Colorado doctrine may be put in this way: That while prior to statehood of the priority states the United States had sovereign jurisdiction over the waters, and appropriation rights acquired during that time were derivable exclusively from the United States, yet the riparian system never was in force in the areas afterward comprising the Colorado doctrine states; that the conferment of state sovereignty vested in the state as an incident of such sovereignty over the waters, the exclusive power to dispose of appropriation rights to the use of water not inconsistent with the rights previously disposed of by the federal government, and to prescribe the persons who could acquire them and the terms and purposes of the acquisition; that subsequent to statehood an appropriator does not receive his water right as the grant of a preexisting property right in and from the United States, but the right is conferred upon him by the sovereign power of the state.

Lux vs Huggin, the leading case on the California doctrine, summarizes the priority phase of that doctrine as follows: "Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator on the theory that the appropriation was allowed or li

censed by the United States. It has never been held that
the right to appropriate waters on the public lands of the
United States was derived directly from the State of
California as the owner of innavigable, streams and their
beds. And since the act of congress granting or recogniz-
ing a property in the waters actually diverted and use-
fully applied on the public lands of the United States,
such rights have always been claimed to be deraigned
by private persons under the act of congress, from the
recognition accorded by the act, or from the acquiescence
of the general government in previous appropriations
made with its presumed sanction and approval".

In Willey vs. Decker, Mr. Justice Potter, speaking for the court, deals with both doctrines in the following language:

"In that state (Montana) the doctrine more generally known, perhaps, as the 'California doctrine', prevails. Stated briefly, that doctrine is that while a stream is situated on the public lands of the United States a person may, under the customs and laws of a state and the legislation of congress, acquire by prior appropriation the right to use the waters thereof for mining, agricultural, and other beneficial purposes, and to construct and maintain ditches and reservoirs over and upon the public land; such right being good against all other private persons, and by statute good as against the United States and its subsequent grantees; but that, when a grantee of the United States obtains title to a tract of the public land bordering on a stream, the waters of which have not been hitherto appropriated, his patent is not subject to any possible appropriation subsequently made by another party without his consent

*

"Upon that theory the right acquired by prior ap

11 Wyo., 496; 73 Pacific, 210.

propriation on the public domain is held to be founded in grant from the United States government, as owner of the land and water, under the acts of congress of 1866 and 1870.

"In this state, on the other hand, the common-law doctrine concerning the rights of a riparian owner in the water of a natural stream has been held to be unsuited to our conditions; and this court has declared that the rule never obtained in this jurisdiction. (Moyer vs. Preston, 6 Wyo., 308.) It was said in the opinion in that case that 'a different principle better adapted to the material condition of this region has been recognized. That principle, briefly stated, is that the right to the use of water for beneficial purposes depends upon a prior appropriation'. And, further, in explanation of the reasons for the existence of the new doctrine, it was said, 'It is the natural outgrowth of the conditions existing in this region of country'. The climate is dry, the soil is arid and largely unproductive in the absence of irrigation, but when water is applied by that means it becomes capable of successful cultivation. The benefits accruing to land upon the banks of a stream without any physical application of the water are few; and while the land contiguous to water, and so favorably located as to naturally derive any sort of advantage therefrom, is comparatively small in area, the remainder, which comprises by far the greater proportion of our land otherwise susceptible of cultivation, must forever remain in their wild and unproductive condition, unless they are reclaimed by irrigation. Irrigation and such reclamation can not be accomplished with any degree of success or permanency without the right to divert and appropriate water of natural streams for that purpose and a security accorded to that right. Thus, the imperative

and growing necessities of our conditions in this respect.
alone, to say nothing of the other beneficial uses, also
important, has compelled the recognition rather than the
adoption of the law of prior appropriation.

"In view of the contention in Colorado, that until
1876 the common-law principles of riparian proprietor-
ship prevailed in that state, and that the doctrine of pri-
ority of right to water by priority of appropriation was
first recognized and adopted in the constitution, the Su-
preme Court of that state, by Mr. Justice Helm, con-
cluded a discussion of the matter as follows: We con-
clude, then, that the common-law doctrine giving the
riparian owner a right to the flow of water in its natural
channel upon and over his lands, even though he makes
no beneficial use thereof, is inapplicable to Colorado.
Imperative necessity, unknown to the countries which
gave it birth, compels the recognition of another doctrine.
in conflict therewith. And we hold that, in the absence
of express statutes to the contrary, the first appropriator
of water from a natural stream for a beneficial purpose
has, with the qualifications contained in the constitution,
a prior right thereto, to the extent of such appropriation'.
And it was further said, that the latter doctrine has
existed from the earliest appropriations of water within
the boundaries of the state”.

The Colorado doctrine of sovereign creation by the state has been adopted by the seven states wherein the priority system prevails exclusively, and the California doctrine of ownership and grant by the United States has been followed in the remaining priority states.

THEORIES INVOKED TO LEGALIZE THE RIPARIAN SYSTEM.

The Colorado doctrine states disclaim the riparian system altogether and, accordingly, put forward no theory to support it.