CHAPTER XX. WATER RIGHTS. I. Water Rights on the Public Lands. A. Appropriation. B. Rights of Way for Ditches. C. Injuries by Manner of constructing or operating Ditches. D. Transfer of Title to Water Rights. 1. WATER RIGHTS ON THE PUBLIC LANDS. In those States where the common law of riparian rights prevails in its full force, its application to cases in which the riparian owner is a mine owner requires no modification of its principles. In the public land States, however, the law of riparian rights has given way to, or at least is often rendered inapplicable by, another system of water rights having its foundation in appropriation. As the system by which a title to mines on the public lands might be acquired had its foundation in a customary law recognized and enforced by the courts of California, so did this system arise, and gain judicial recognition. And like the mineral land system, it determines superiority of right by priority of appropriation. This system is not confined to the use of water for mining purposes. As, however, that was the use which first attracted attention in the Pacific States and Territories, and as the water right is indispensable to mining in many of them, it is thought essential to devote a chapter to the subject here. A complete treatment of the subject is not attempted, the writers contenting themselves with a general statement of the principles, and a collection of those cases only whose facts have a direct connection with the subject of mining. It should be borne in mind, however, that the authority of the precedent is not affected by the beneficial use to which the water is applied. A. Appropriation. The general doctrine is that the first appropriation for a beneficial purpose of the water of a stream passing through public lands of the United States confers the right to divert, use, and consume the water necessary for the purposes of the appropriation to the extent of the original appropriation. And the appropriator becomes, so far as he has made an actual prior appropriation, the owner of the water as against all the world except the United States. A mine owner may consequently divert and convey to his mining ground the water of any stream on the public domain which has not already been appropriated. In order to create this right, there must be an actual appropriation, or an intention to appropriate, followed by due diligence in doing so. It need not depend upon a title, either legal or possessory, to any part of the public domain, either bordering on the stream or at a distance. The appropriator may intend to use the water upon his own land, or only to sell and dispose of it to others for beneficial uses. But he must have a bona fide present intention of an immediate or some future application of it to some beneficial purpose. Speculation or drainage is not such a purpose. Another essential of appropriation is actual diversion from the natural bed of the stream by artificial means into a ditch, reservoir or other structure. But a natural ravine or another portion of the same stream may be used as a means of conveyance. There must also be an actual application to the beneficial use within a reasonable time. In the meantime, such physical acts are necessary as will put other appropriators upon notice. These may depend upon the natural conditions and circumstances, or they may be fixed by local custom or statute. This done, work must be commenced and prosecuted with reasonable diligence. What this is, is a question of fact, depending on the physical circumstances of the locality, the difficulty of procuring labor, the extent of the works, etc. The appropriation does not become complete until the works are complete so that use can be begun. In the meantime the appropriator has no vested right to the water, and cannot maintain an action for the use or diversion thereof, though he has a right to use so much as is necessary to preserve his works from injury during construction. Upon completion, however, if he has pursued the work with reasonable diligence, the right relates to the date of the commencement of the work. The manner of appropriating water is often prescribed by statute or custom, which governs its acquisition in the same way that the acquisition of mining rights is controlled by customary or statutory regulation.1 Of course the appropriator of land on the bank of the stream. would be entitled to the use of the water, and of this he could not be deprived by a subsequent appropriator. But his right would be subordinate to that of persons who had previously taken the water, although having no interests upon the banks of the stream. This right of the prior appropriator as against the grantee of the government is preserved by the acts of 1866 and 1870. Prior to 1866, as the right was void as against the United States, so it was as against their grantee. At that time the basis of the right of appropriation was a presumption of license, and the government's grant was a revocation thereof. The water when appropriated may be conveyed and used wherever the appropriator chooses. He is under no obligation to restore any part of it to its original channel. He is complete master of it while in his possession and control. But when he has abandoned it, and turned it loose to flow where it pleases, it then passes from his control, and is subject to appropriation again. The use, however, of natural channels and watercourses for the transportation of water does not amount to abandonment thereof. The right of the first appropriator is limited in extent to the amount appropriated prior to the vesting of subsequent rights. Another appropriator may take water higher up the stream to any extent that will leave a residuum sufficient to supply the amount theretofore taken by the prior appropriator, or he may take all, if he will return enough to satisfy the rights of the latter. And a subsequent appropriator below may take whatever water has not been previously taken by the prior appropriator, and after the date of his so doing the prior appropriator may not increase the amount taken by him so as to decrease that taken by the subsequent appropriator. The principle is equally applicable whether the appropriation be measured by time or volume. The right to appropriate water, however, must be exercised within reasonable limits with reference to the condition of the country and the necessities of the people. The water may not be monopolized so as to deprive a whole community of its use. 1 California, Civ. Code 1885, secs. 141022; Act March 22, 1895, p. 70; Idaho, Rev. Stats. 1887, secs. 3155-67; Montana, Civ. Code 1895, secs. 1880-1902; Oregon, Hill's Where the first appropriation is of all the water of a stream, the appropriator may enlarge his ditch at pleasure, and others cannot complain. But where his appropriation is of a part only, his right is measured by the quantity which could actually be carried by his ditch in the size and condition in which it was at the time of the subsequent appropriation. Where a ditch has been so constructed that it cannot actually carry so large an amount as its general plan and size render it capable of carrying and its appropriator intended, he may increase its capacity by removing obstructions and improving grades and the like, if he does so within a reasonable time. But if he continue to take only the original amount long enough to indicate an intent to take only that much, he will be limited to it. A person having a right to divert a given quantity of water from a stream may do so at any point on the stream, and may change the point of diversion at pleasure, provided he does not injuriously affect vested rights. But he does not have the exclusive right to the use of the channel. This may be used by others for the transportation of water or the construction of their works, provided they do not interfere with the rights of the prior appropriator. The subsequent appropriator must not only leave sufficient water to furnish to the prior appropriator the amount appropri ated by him, but he must not do anything to deteriorate the quality of the water which the latter must use. Such deterioration, however, to amount to an actionable injury, must impair its value for the use to which it is put by the prior appropriator, that is, so far as our present consideration of the question is concerned, for the purposes of mining. A deterioration which would render the water useless for domestic purposes might in no way injure it for use in mining operations, and therefore would be no ground for an action for damages. A subsequent appropriator in taking the water must do so in such a manner as not to injure the works of the prior appropriator of the water or of the riparian owner; as, for instance, by flooding, the result of the backing of the water by damming. Any interference with water of a stream, either above or below the point of diversion, which hinders the full enjoyment of the appropriator's right as defined, and any interference with water in his ditch, dam, or reservoir, or with these structures themselves, are actionable injuries. If the injury be present, it is a nuisance, and may be abated as such, or an action may be maintained on it. If it be past, the only remedy is an action for damages; if continuous, equity will interfere by injunction. The law of water rights as thus developed in the public land States, and sanctioned by local custom and judicial decision, was recognized by Congress by the act of July 26, 1866, sec. 9 (Rev. Stats. 2339), and the act of 1870, by which grants are made subject to vested and accrued water rights, by which is meant those vested and accrued at the date of the patent to the subsequent grantee. Cole S. M. Co. v. Va. & Gold Hill W. Co., 1 Sawy. United States. 470 (1871), C. C. D. Nev. While excavating a tunnel for mining purposes, complainants struck a stream of water which they claimed and appropriated. Subsequently defendants ran a tunnel into the mountain at a point below complainants' tunnel, and striking the stream of water appropriated it, thus draining it from complainants' tunnel. Complainants were entitled to an injunction to restrain such diversion and appropriation, although it would require the filling up of defendants' tunnel, or the building of a water-tight wall to accomplish this. And the right to this injunction is the same whether defendants were engaged in a bona fide mining operation or excavated their tunnel solely to obtain the water. "A stream of water, therefore, thus found in a tunnel excavated for mining purposes, is often as valuable to the possessor as the mine itself; and to take away any such supply of water from one who has acquired a right to it, by means of a tunnel excavated by another party not having a superior right for the purpose of prospecting or working his own mine, is as clearly a violation of the maxim as the destruction of a neighbor's mine in the same mode. "The authorities cited to the point that, where one has a spring on his own land, supplied by percolating water coming from his neighbor's premises, such neighbor may by digging on his own land cut off the supply, admitting them to be correct, do not appear to me to reach this case. The defendants do not appear, by the affidavits, to have made the diversion by digging in their own lands. The water is not shown to have come from their own ledges, or from their immediate vicinity, or from any land to which they have a prior right. It does not satisfactorily appear that any one of the ledges mentioned in the papers, lying west of or beyond complainants' ledge, that could be reached or prospected by defendants' tunnel, is a prior location to that of complainants', or that defendants have a prior right to anything in the line of their tunnel to the west of complainants' ledge. The diversion is accomplished, taking the view most favorable to the defendants, by running a tunnel through other lands in search of ledges claimed by themselves, and ledges, too, the location of which, if they have any real existence, seems as yet, and according to defendants' own affidavits, after a ten years' search, to be entirely unknown. |