trine 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. And, since the rule by the For mitting water appropriations on federal lands, our public waters are practically under control of the bank owners. prietors. This is a right of property, a part and parcel of the land itself, and plaintiffs are entitled to have restrained any act which would infringe upon the right." In the Madera Canal Co. case the ruling of the court is prefaced on the facts that the river banks through the Miller and Lux property were low and that floods annually overflowed them, and deposited on such land large quantities of fertilizer and enriching materials, increasing their productiveness and enhancing their value. The de-estry Department abrogates the statute perfendants wished to store such flood waters for use on non-riparian lands. The court held, "That the riparian proprietor is entitled as against the non-riparian taker to the ordinary and usual flow of the stream. There is no good reason for saying that the greatly increased flow following the annually recurring fall of rain and melting snow in a region about the head of the stream is any less usual and ordinary than the much diminished flow which comes after the rains and melting snows have run off. The doctrine that the riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to non-riparian land, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water, which is, or may be, beneficial to his land. He is not limited by any measure of reasonableness." In this state the courts have followed the above California case and the case of Still v. Palouse Irrigation & Power Co.1 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 v. 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 doc (4) 64 Wash. 606. Right of Appropriation.—Alongside of these rules laid down by our courts, the Legislature of Washington enacted the following statutes, under which 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 in time is the first in right." "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 "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."8 "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." 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 eliminate excess appropriations and protect water users against future encroachments upon their rights, nor to determine when an initiated right has lapsed. Rights of Non-Riparian Owners.-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 and 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 (8) L. 99, p. 261, § 2; Rem.-Bal., § 6326. (9) L. 90, p. 707, § 7; Rem.-Bal., p. 6331. Wales, Victoria, Australia and the Northwest territories of Canada, India and Egypt.10 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 suggestion 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 benefit 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, and 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. users In § 820, Kinney in substance says: On account of the rapid settlement of the arid country and the great demand for water, it is declared that the time is not far distant when the courts will hold that the riparian owner's 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 usufructary; and if he does not use the water it is (10) In support of this see 20 Wash. 507; also Kinney on Irrigation and Water Rights, § 1901. 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 any 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 privilege not enjoyed by the other. In a comparatively recent case11 the Supreme Court of Washington 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. 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 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 with (11) 47 Wash. 314. out 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 can 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: 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." "No 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 Rights12 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 if possible, it would be a vastly expensive property may be given by statute, and that, proceeding." In Washington 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 anyone else wants to use such excess he must (12) § 1089. 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 daniages for future use, defeated by the taking, cannot be considered.13 Under the doctrine laid down in the Still case11 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." Rights to Store Water Cannot Be Acquired by Condemnation.-Under the riparian doctrine it will be impossible to store the flood waters of our streams for use upon non-riparian lands unless the bank owners are bought off at their own prices. Under our statute and the rulings of our courts, the privilege of storing flood waters to be used on other than riparian lands cannot be acquired by condemnation, because the statute expressly says that the right to condemn riparian rights "Is not intended in any manner to allow water to be taken from any person, that is used by said person himself for irrigation, or that is needed for that (13) McCook Irrigation Co. v. Crews, 70 Neb. 115. (14) 64 Wash. 606. purpose by any such person"; and in the cases cited the courts have said "that the flood waters were being used by the riparian owners." In Still v. Palouse Irrigation & Power Co.15 the court says: "In this case the respondents do not make use of the high waters, and the greatest use and benefit to their land comes from such use." This leaves the riparian owner to sell his flood water rights, or not, as he likes, and at any price he may see fit to ask or accept. Under such conditions, men of ordinary business sagacity will not invest their money in water right projects. Under such a rule of law the rights of all water users, acquired by appropriation, and now put to a beneficial use, are open to attack by any riparian proprietor who may wish to hold up the water level in the stream so it may either flood or "sub" his land. Investments of Appropriators in Jeopardy. The following quotation from the brief of defendant's attorney in the Madera Canal Co. case is interesting. He said: "The interests involved in this suit are of such magnitude, not only as between the parties themselves, but also to thousands of others, and the result reached so disastrous to the defendants, so destructive to the vast and beneficial improvements made by them in good faith and in the belief that the same law as to those matters applied both to the state and government lands in California, so disastrous to the people of a large part of California, and so destructive of all those great interests which have grown up under the irrigation system based upon the doctrine of appropriation to beneficial uses, that we firmly believe your honors will wish, even if in the end you feel compelled to adhere to the views already expressed, to do so only after you have received all the light which the profession can give. No matter how onerous and pressing the duties which devolve upon your honors, there is, we submit, before you no question or business which can compare in public interest to the inquiry whether the decree shall stand which condemns to absolute barrenness the thousands of acres of land reclaimed from the desert by the vast expenditures of the defendants here and now a garden of productiveness and beauty, in obedience to the law of another country, based upon the customs, and arising under conditions the most diverse from ours; whether, in obedience to that law, a large part of this state, after a progress almost unparalleled and improvements made at incalculable cost of labor and treasure, is to be condemned to return to sterility and unproductiveness; whether, in obedience to that law, the wheel of progress is to be turned back and the present prosperity of thousands changed into ruin and poverty that a few men, who happen to own land on the banks below, may enjoy the pleasure of seeing the stream flow as it was accustomed to flow. Your honors will not, we are sure, forget that this decree, if it is to stand, not only overthrows the progress of the past, but puts a perpetual bar upon the future progress and development." 17 If the rule laid down in Miller and Lux v. Madera Canal Co.,16 supra, and followed in Still v. Palouse Irrigation & Power Co.,17 is the law then the extract from Mr. Gerber's argument (though gloomy) is entirely applicable to present conditions. In the Still case18 the court says: "A riparian owner, such as respondents are here shown to be, has a right to the natural flow of the waters in their natural and accustomed channels without diminution or alteration, subject only to such rights and use in every other riparian owner, a right that is as much included in the ownership of the land as the soil itself, and can no more be interfered with by the act of others. And, while the application of this doctrine has in some of the Western states sometimes been denied, on the theory that the rules of the common law respecting riparian owners were inapplicable to conditions and necessi (16) 155 Cal. 59. (17) 64 Wash. 606. (18) Supra. ties of the people in the particular localities where the cause of action arose, it has since its first announcement here invariably been upheld in this state, excepting where it has been subjected to a priority of appropri ation." Considering the fact that the great bulk of the water now diverted and used for ir rigation purposes in the state was acquired under appropriation statutes, and that millions of dollars have been invested in developing such water rights, and that millions more have been invested by substantial citizens who live under such projects, there would seem to be a legal and moral duty resting upon the state to remove the cloud from such titles, to define them, and to make them a matter of record. Water Right Litigation.—The history of water rights in those states operating under the common law of riparian rights is that of endless litigation and delay in the development of their natural resources. In California, following the common law rule, millions of dollars have been spent in water litigation without settling the rights of anybody except those directly parties to the litigation. "Under existing conditions water rights in California cannot be settled until every claimant on each stream and stream system has sued or has been sued by every other claimant thereon.”19 Washington, in adopting the riparian doctrine, has placed every water title in the state in the same jeopardy as those in California. All water rights in such states are open to attack in the courts, and can never be defined and made definite until each claimant of a water right has sued every other claimant on the stream or stream system, or has been sued by them. And even then there is now nothing but the bringing of another suit to prevent the newcomer from filing an appropriation and using the water of the person having the right to it under the decree. (19) See Conservation Commissioner Report of California, 1912. |