Drake v. Earhart

BEATTY, C. J. In the year 1879 respondent Quigley took possession of a tract of unsurveyed land at the month of what has since been known as “Quigley gulch,” near the town of Hailey, in Alturas county, and at the same time appropriated for the irrigation of said land the water of the stream flowing down said gulch; and the other respondents Drake and Covert, subsequently became owners in a part of said land and water. At later dates the several defendants in this action became possessed of certain lands lying upon said stream farther np the gulch, and commenced the use of the said water. To perpetually restrain them from such use, this action was commenced; and, upon the trial before the court, the right to the water was adjudged to respondents, and defendants were restrained and enjoined from using any thereof. From this judgment the appellant Earhart alone has appealed to this court. From the findings of the court it appears that in 1879 said Quigley located the land referred to, and afterward he and said Drake, who had purchased a part, obtained patents therefor, and, so far as the findings show, still own it; that “in said year 1879, said Quigley took out of said Quigley creek, a stream flowing in said gulch, by a ditch built by him upon said land, all the waters flowing therein, and caused the same to flow upon a portion of said land”; that, “at the time of appropriation of said water as aforesaid, said Quigley posted a notice . . . . claiming six hundred inches of the water of said stream”; and the court also found “that said stream carries one hundred and fifty inches of water”; that afterward said Drake and Covert succeeded to all the water, and the three respondents “continued .... to use said water of said stream for agricultural purposes upon the land before mentioned”; that they have at all times as — 752 — serted title to all of said water; that none of the defendants had ever made any appropriation of any of said water in pursuance of the laws of this territory; that “irrigation is necessary to the proper cultivation of the lands of all the parties, and all the waters of said stream are required for the irrigation of the lands of plaintiffs.” It appears from Earhart’s answer that he purchased his land in 1885, and that it had been occupied by his grantor since May, 1883. The appellant suggests the insufficiency of the findings. While they are not explicit, if they will support the judgment, they must not be disturbed. They show the respondents together own the land and water, the latter by prior appropriation; that they use it to irrigate this land, for which all the stream is used. They do not specify under what pressure the water is measured; but, as all in the stream is required by them, and as there are but one hundred and fifty inches therein, being four hundred and fifty less than was claimed by the act of appropriation, it cannot be discovered how, in this case, the failure to specify the pressure can result in injury to the appellant. Tt is also found by the court “that some time in the year 188 — , before the commencement of this action, plaintiffs Drake and Quigley sold a small quantity of said water to the Oregon Short Line Railway for a water supply at its station at Hailey.” From the fact that respondent so sold a portion of said water, it is argued that they had attempted the appropriation of more than they needed for a “useful or beneficial purpose.” It is, unquestionably, the law that more than is required for such purpose cannot be taken; that, when legally appropriated, it may be sold for some other useful purpose; and that its use for railroad necessities is such a purpose. Did respondents sell what they did not need? It appearing that in 1879 all the water of this stream was sufficient to irrigate but a part of the land now owned by respondents, it follows that the sale of the water was not from an unneeded surplus, but from that which they had actual use for. It is their privilege to dispose of what they need, if they desire. Its sale did not damage appellant, nor could its retention by them have benefited him. How the conveyances of this land and water were made, or by what arrangements the respondents together use them, does not appear, — 753 — and, it not appearing to have been a matter of contest below, is immaterial here. The findings support the judgment. The important question, for the settlement of which this appeal was chiefly brought, is what, if any, rights the appellant has to any of that water as a riparian proprietor. His claim is not based upon prior or any appropriation under our territorial laws, but upon the fact that the stream in question flows by its natural channel through his land; hence, that he is entitled to the use thereof allowed by the common law. This doctrine of riparian proprietorship in water as against prior appropriation has been very often discussed, and nearly always decided the same way by almost every appellate court between Mexico and the British possessions, and from the shores of the Pacific to the eastern slope of the Rocky Mountains, as well as by the supreme court of the United States. But for the fact that it has elsewhere repeatedly appeared in the same court, it would seem surprising that it should now be seeking another solution in this. While there are questions growing out of the water laws and rights not fully adjudicated, this phantom of riparian rights, based upon facts like those in this ease, has been so often decided adversely to such claim, and in favor of the prior appropriation, that the maxim, “First in time, first in right/’ should be considered the settled law here. Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity. When, from among the most energetic and enterprising classes of the east, that enormous tide of emigration poured into the west, this was found an arid land, which could be utilized as an agricultural country, or made valuable for its gold, only by the use of its streams of water. The new inhabitants were without law, but they quickly recognized that each man should not be a law unto himself. Accustomed, as they had been, to obedience to the laws they had helped make, as the settlements increased to such numbers as justified organization, they established their local customs and rules for their government in the use of water and land. They found a new condition of things. The use of water to which they had been accustomed, and the laws concerning it, had no application here. The demand for water they found greater than the — 754 — supply, as is tbe unfortunate fact still all over this arid region. Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common-law riparian doctrine, to which they had been accustomed, they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation. This did not mean that the first appropriator could take all he pleased, but what he actually needed, and could properly use without waste. Thus was established the local custom, which pervaded the entire west, and became the basis of the laws we have to-day on that subject. Yery soon these customs attracted the attention of the legislatures, where they are approved and adopted, and next we find them undergoing the crucial test of judicial investigation. As far back as 1855, the supreme court of California, in Irwin v. Phillips, 5 Cal. 145, 63 Am. Dec. 113, and in Tartar v. Mining Co. Cal. 397, distinctly held that the prior appropriator of water should hold it against the riparian claim of the owner of land through which it flowed, and, also, that in all branches of industry the prior appropriator of land, water and easements would be protected. Not only had such become the law by custom, by the legislative will and the decisions of the courts, without dissent, but the general government for many years, without protest, acquiesced in such occupation and use of its lands and waters by its citizens, while valuable properties and industries were building upon this principle. To put the question beyond uncertainty, to approve and adopt what already existed as the common law of the west, the Congress, by its act of July 26, 1866, section 9, provided “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 the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.” It will be observed that the act is based upon the existence of local customs, laws and decisions of courts. It is not necessary that all these conditions shall exist for the protection of the right; but, as held in Basey v. Gallagher, 20 Wall. 684, the existence of either condition is sufficient. — 755 — It has been said that in the ease at bar no custom has been shown. It is not necessary it should be; for, prior to the beginning of appellant’s claim, the superior rights of prior appropriation were acknowledged by our territorial law of 1881, and by the decisions of our courts. By a practically unbroken line of decisions the rule of the cases above referred to in 5 Cah. has been followed, and is now established by so many and such-high authorities that it would seem this theme of discussion is1 exhausted. Brief reference, however, may be made to some of the leading cases. Basey v. Gallagher, 20 Wall. 681, 682, clearly indorses the ■ superior right of prior appropriation between agricultural claimants in the following explicit language : “In the late case of Atchison v. Peterson [20 Wall. 507], we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that, by the custom which had obtained among miners in the Pacific states and territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance, for mining purposes, to points from which it could not be restored to the stream; that the government, by its silent acquiescence, had assented to and encouraged the occupation of the public lands for mining; and that he who first connected his labor with property thus situated, and open to general exploration, did, in natural justice, acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific states and territories, by their customs, usages and regulations, had recognized the inherent justice of this -principle, and the principle itself was at an early period recognized by legislation, and enforced by the courts of those states and territories, and was — 756 — finally approved by tbe legislation of Congress in 1866. The views there expressed, and the rulings made, are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those states and territories, by the custom of miners or settlers or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one.” In this case it is said: "The right of the first appropriator, exercised within reasonable limits, is respected”; that it "is not unrestricted. It must be exercised with reference to the general condition of the country, and the necessities of the people.” This language has been seized upon as justifying the equitable, if not equal, division of the water among all desiring or needing it, regardless of the claim of the prior appropriator. Such a construction is not justified, and would make the decision inconsistent with itself, as well as with the other decisions of the same court. (Jennison v. Kirk, 98 U. S. 461; Broder v. Water Co., 101 U. S. 276.) It is evident that all the court means by this language is that the first appropriator shall not be allowed more than he needs for some useful purpose; that he shall not, by wasting or misusing it, deprive his neighbor of what he has not actual use for. In Jennison v. Kirk, supra, the court says: "The owners of a mining claim and the owner of a water right enjoy their respective properties from the dates of their appropriation- — -the first in time being the first in right; but, where both rights can be enjoyed without interference with or material impairment of each other, the enjoyment of both is allowed.” It clearly follows, as the courts have certainly held, that when all cannot use the water without injury to the prior appropriator the other must yield to his superior right. The claim having been asserted that, when a party procured a patent for land, he would be entitled to the use of all waters flowing through the same, this was put at rest by the act of Congress of July 9, 1870, as follows: "See. 17. All patents granted, or pre-emption or homesteads allowed shall be subject to any vested and accrued water rights or rights to ditches,” etc. Since this act the rulings have been uniform that the patentee of land has no claim upon the water flowing through the same as against a prior appropriator. (Barnes v. Sabron, 10 Nev. — 757 — 230; Hill v. Lenormand (Ariz.), 16 Pac. 267, 268; Geddis v. Parrish, 1 Wash. 587, 21 Pac. 314; Reno etc. Reduction Works v. Stevenson, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 318; Hammond v. Rose, 11 Colo. 524, 7 Am. St. Rep. 258, 19 Pac. 466; De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Matad Val. Irrigation Co. v. Campbell, ante, p. 411, 18 Pac. 52; South Yuba etc. Min. Co. v. Rosa, 80 Cal. 334, 22 Pac. 222.) While there are numerous questions growing out of the water law, we have aimed to confine this discussion to that involved in this case, which is simply a contest between a prior appropriator of the water of a stream, all of which he claims, has used and needs for a useful purpose, and a party who, since such appropriation, has entered and patented some of the land through which such water, by its natural channel, flows, and who claims its use as a riparian proprietor. In accord with the authorities, as well as with our local law on this subject, it must be held that the judgment of the lower court should be affirmed; and it is so ordered.