use, than it can give to all of the proprietors who are equally interested in the same stream.1

§ 95. Summary.-In summing up this chapter we will say that under the common law doctrine in its most general form all property in water-courses and inland lakes, whether the same are actually navigable or not, is held sacred to the common use alike of all the riparian owners upon their borders, as an incident to their ownership of the soil; that the nature of their ownership of the water itself is simply usufructuary, and that each proprietor may reasonably use the water for any purpose as it passes through or by his land; but always provided that he must, after having used it, return it without substantial diminution in quantity or any material change in quality to its natural bed or channel before it leaves his own land, so that it will reach his neighbor below in its full, original and natural condition. We have also seen that the natural current of a stream must neither be obstructed nor accelerated by any proprietor; that a riparian proprietor is entitled to all accretions and relictions that may be added to his lands caused by the influence of the winds or tides, and thus always giving him right of access to and from his estate to the water, or to and from the water to his estate; that he also has the exclusive right of fishery opposite his land, and no one can erect any obstruction in the stream that shall bar him from that right. Also, under the common law, no priority of use or appropriation by any one proprietor can give

to show that the use for which condemnation is sought is a public use, but shows 'affirmatively that it is not; and also the term "neighborhood" is an indefinite phrase and may consist of but two houses upon a single farm; and as the pleading must be construed most strongly against the pleader it must be understood that the farming neighborhood to be benefitted consists of one farm only, and this the property of the plaintiff; and also where a complaint

in an action to condemn water rights which describes them generally as all the rights of each of the defendants, whether as riparian owners or acquired by appropriation, adverse use, or prescription, except for domestic use and reasonable use of their riparian lands, is uncertain in not showing definitely what water rights are proposed to be condemned, and is insufficient as against a special demurrer.

1 See cases cited above.

him any higher or more extensive rights than those which belong to all the other proprietors, either higher up or lower down on the stream; and, although some of them may have come long after the first proprietor settled upon the stream, all the proprietors who are interested in the stream must share in its use equally; and if one proprietor acquires more extensive rights than those mentioned, against the other riparian proprietors, he must do so by obtaining a grant or license from all who are effected thereby, or by prescription, which presupposes a grant. And lastly, we have seen that the State, by virtue of its right of eminent domain, can not take, injure or impair any of these rights in and to the use of the waters of the stream of any riparian proprietor without due compensation therefor and then only when it is for some public use or benefit.

CHAPTER IV.

The Arid Region Doctrine.

§ 96. Nature and Extent of Subject Treated in Chapter.In the preceding chapter we have seen that under the common law doctrine, as decided by the general consensus of English and American decisions, the rights of riparian proprietors in the use of water of running streams and inland lakes were superior and paramount to the rights of others, by virtue of their right being an incident to their ownership of the land bordering upon the stream and arising ex jure naturae. Also

that these rights of the riparian proprietor existed whether they chose to exercise them or not, to the exclusion of all others desiring to exercise them; that these rights did not depend upon occupancy, and were not limited by the prior occupation of others not amounting to an adverse enjoyment by prescription, but that the rights of all of the proprietors upon a stream were equal, and each one being entitled to a reasonable use of the stream, provided that he did not injure any of his neighbor's rights in and to the same, and that it was wholly immaterial as to who is first in time.

But ever since that section of this country located west of the 100th meridian, and known as the "Arid Region," first began to be peopled by the Anglo-Saxon race, following at first mining as an occupation, and afterwards with increasing numbers settling down to agricultural and mechanical industries, a great change from the old common law theories has been gradually taking place, until to-day in some of the States and Territories formed out of the "Arid Region" the common law theories upon the subject of waters are absolutely abolished, in others ignored, and in all modified, particularly with regard to the uses of the waters of inland streams and lakes. The present chapter will be devoted to showing how this. change was brought about, and the application of the new doctrines to the lands and waters upon the public domain, or that part owned by the United States.

§ 97. Cause of the Change.-There were manifest equities which demanded that the common law, hastily adopted from a country so dissimilar in climate and condition to that of the arid region, should not be made applicable when it imperils the most vital interests of some of the richest districts of the world. The rain does not fall alike over all the earth. In some sections of this country included in the arid west the annual rainfall amounts to from thirty to forty inches per annum, while in other sections it amounts only to from six to ten inches per annum. This is due to a certain extent to the topographical features of the country. The mighty peaks of the Rocky Mountains tap the rain clouds and drain them of their moisture before they reach the space over the dry valleys.

During the winter season great masses of snow are piled up in the mountains and remain in these storehouses of nature until the summer's sun causes the snow to gradually melt and run down into the canyon streams, then out from the mountains to the sea, through the vast extent of dry valleys, where perhaps not a drop of moisture has fallen for months. Thus we see that when the water reaches the valleys in the arid region, on its way to the ocean, instead of being precipitated nearly equally upon the earth, as is the case in what is known. as the rain belt," it is gathered in channels which only touch a very small proportion of the land within the arid. region, and under the rules of the common law, as can be readily seen, a few riparian owners would control all of the water in that part of the country to the exclusion of all others. Nature clearly designs, in spite of the facts above set forth as to the inequality of precipitation, that the rain should still be permitted to shed its blessings on all; and that a non-riparian land owner should not be prevented by a riparian owner from securing his just proportion of water simply because owing to the topographical features which are beyond his remedy or control the water granted to him drains from its storage source in the mountains into springs, pools, streams, and rivers, and flows by his neighbor's land, who, as an incident of his ownership of the soil adjoining the stream, controls all of the water thereof, although the same may be far in excess of what he and all the other riparian owners may need.

§ 98. Same.-Common Law Inapplicable to the Arid Region. The common law of riparian rights had its origin in Great Britain, under the conditions of climate peculiar to its position, in the path of the great Gulf Stream, in an atmosphere laden with moisture, which is precipitated with lavish profusion upon that favored spot. The law gave to the riparian owners, as an incident to their ownership of the soil adjoining the water, the right to the natural flow of the stream without material alteration or diminution. He might use the water for any purpose, provided that he in turn restored the same to its natural course, so that his riparian neighbor below might receive the same unaltered in quality and undiminished in quan