bearing on this question, we are unable to find one in which it is held or even suggested that outside of the mining districts the common-law doctrine of riparian rights does not apply with the same force and effect in this state as elsewhere."

Ross, J., dissented, and wrote an opinion, pointing out that the common law must, if applied at all, be applied according to the natural conditions in the country where the application is made. In the states adopting the "California System" the courts following the LuxHaggin case have taken the position that as the common law has been adopted by legislative enactment, as the rule of decision, except where changed by statute, the rights of a riparian owner, when they have once attached, cannot be divested except by grant or condemnation for a public use; that the United States, being the owner of the fee of all public lands, is also the riparian proprietor, and so long as the government is the sole riparian proprietor it can grant the right to appropriate and divert the waters of the streams and apply them to beneficial uses; but, the moment its title to the land passes to an individual, the riparian rights of the individual immediately vest, and no subsequent appropriations or diversions can be made unless by grant or condemnation. In these states the courts have sustained the statutes relating to the appropriation and diversion of water for use upon non-riparian lands, and have protected all appropriations made prior to the vesting of riparian rights in any individual; also those appropriations made thereafter, where the right to divert the waters has been acquired by adverse use, condemnation or grant. Thus we have in these states the doctrines of appropriation and riparian rights jostling each other as it were, yet still existing side by side. (84) In determining contro

(84) Crandall v. Woods, 8 Cal. 136 ('57); Lux v. Haggin, 69 Cal. 255, 10 P. 674 ('86); Van Bibber v. Hilton, 84 Cal. 585, 24 P. 308 ('90); Alta Land Co. v. Hancock, 85 Cal. 219, 24 P. 645 ('90); Modoc, Etc., v. Booth, 102 Cal. 151, 36 P. 431 (94); McGuire v. Brown, 106 Cal. 660, 39 P. 1060 ('95); Hargrave v. Cook, 108 Cal. 72, 41 P. 18 ('95); San Luis Water Co. v. Estrada, 117 Cal. 168, 48 P. 1075 ('97); Baxter v. Gilbert, 125 Cal. 580, 58 P. 129 ('99);

§ 20, "California System"--Lux v. Haggin.

versies between appropriators and riparian proprietors, in the states and territories adopting ` the "California System," the precise date when the

Bathgate v. Irvine, 126 Cal. 135, 58 P. 442 ('99); Calif. P. & A. Co. v. Enterprise, 127 Fed. 741 ('03); Ore. Iron Co. v. Trullenger, 3 Ore. 1 ('67); Taylor v. Welch, 6 Ore. 198 ('76); Coffman v. Robbins, 8 Ore. 278 ('80); Hayden v. Long, 8 Ore. 244 ('80); Shively v. Hume et al., 10 Ore. 76 ('81); Shook v. Colahan, 12 Ore. 239, 6 P. 503 ('85); Weiss v. Ore. Iron & S. Co., 13 Ore. 496, 11 P. 255 ('86); Ison v. Nelson [Ore.], 47 Fed. 199 ('91); Low v. Schaffer et al., 24 Ore. 239, 33 P. 678 ('93); Boyce v. Cupper, 37 Ore. 256, 61 P. 642 ('00); Cox v. Bernard, 39 Ore. 53, 64 P. 860 ('01); Jones v. Com., 39 Ore. 30, 64 P. 855 ('01); Brown v. Baker, 39 Ore. 66, 65 P. 799 ('01); Salem F. M. Co. v. Lord, 42 Ore. 82, 69 P. 1033 ('02); Ore. Const. Co. v. Allen D. Co., 41 Ore. 61, 69 P. 455 ('02); Britt et al. v. Reed, 42 Ore. 76, 70 P. 1029 ('02); Harrington v. Demarris, Ore., 77 P. 603 ('04); Crook v. Hewitt, 4 Wash. 729, 31 P. 28 ('92); Shotwell v. Dodge, 9 Wash. 337, 36 P. 254 ('94); Rigney v. Tacoma L. & W. Co., 9 Wash. 576, 38 P. 147 ('94); Benton v. Johncox, 17 Wash. 277, 49 P. 495 ('97); Sander v. Wilson, 34 Wash. 659, 76 P. 280 ('04); City of New Whatcom v. Fairhaven L. Co., 24 Wash. 493, 64 P. 735 (01); Mo. Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 P. 275 ('95); Parker v. City of Atchison, 58 Kan. 29, 48 P. 631 ('97); Montague v. Bd. Co. Com., 7 Kan. App. 160, 53 P. 145 ('98); Campbell v. Grimes, 62 Kan. 503, 64 P. 62 ('01); Clark v. Allaman, Kan., 80 P. 571 ('05); Clark v. Cambridge & A. Irr. Co., 45 Neb. 798, 64 N. W. 239 ('95); Ice Co. v. Guthrie, 42 Neb. 238, 60 N. W. 717 ('94); Slattery v. Harley, 58 Neb. 575, 79 N. W. 151 ('99); Plattsmouth Water Co. v. Smith, 57 Neb. 780, 78 N. W. 275 ('99); Crawford Co. v. Hathaway, 60 Neb. 754, 84 N. W. 271 ('00); 67 Neb. 325, 93 N. W. 781 ('03); Meng v. Coffey, 67 Neb. 500, 93 N. W. 713 ('03); Dunn et al. v. Thomas, Neb., 96 N. W. 142 ('03); McCook I. & W. P. Co. v. Crews, Neb. 102 N. W. 249 ('05); Haas v. Choussard, 17 Tex. 588 ('56); Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631 ('63); Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540 ('68); Fleming v. Davis, 36 Tex. 173 ('72-3); Baker v. Brown, 55 Tex. 377 ('81); Mud Cr. Irr. A. & M. Co. v. Vivian, 74 Tex. 170, 11 S. W. 1078 ('89); Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758 ('96); Cape v. Thompson 21 Tex. Civ. App. 681, 63 S. W. 368 ('99); Clements v. Watkins Land Co., Tex., 82 S. W. 665 ('04); reversed by Watkins L. Co. v. Clements, 98 Tex. 578, 86 S. W. 733 ('05); Smith v. Denniff, 24 Mont. 20, 60 P. 398 ('00), overruling Smith v. Denniff, 23 Mont. 65, 57 P. 557 ('99); Cruse v. McCauley, 96 Fed. 369 ('99); Sturr v. Beck, 6 Dak. 71, 50 N. W. 486 ('88); Sturr v. Beck, 10 Sup. Ct. 350, 133 Ú. S. 541 ('90); Metcalf v. Nelson, 8 S. Dak. 87, 65 N. W. 911 ('95); Lone Tree D. Co. v. Cyclone D. Co., 15 S. Dak. 519, 91 N. W. 352 ('02); Stenger v. Thorp, 17 S. Dak. 13, 94 N. W. 402 ('03); Lone Tree D. Co. v. Rapid City E. & G. L. Co., 16 S. Dak. 451, 93 N. W. 650 ('03); Bigelow v. Draper, 6 N. Dak. 152, 69 N. W. 570 ('96). The case of Lone Tree D. Co. v. Cyclone D. Co., supra, is still pending on a motion for a rehearing, and the court is being urged to depart from and modify its former holding as to the application of the common-law doctrine of riparian rights.

rights of the riparian proprietor vested, has been frequently the important question. It is now the settled law that the rights of a riparian proprietor attach at the very inception of his title, and that from that date such rights will be protected against subsequent appropriation. (85) These rights may be divested by grant or prescription or adverse user, or by condemnation (86) by a non-riparian owner. In order to make these riparian rights subject to condemnation under the right of eminent domain, however, both the statutes and the decisions of the courts have declared the use of the waters of the streams for beneficial purposes to be a public use. (87)

$ 21. The "Colorado System"-Yunker v. Nichols.

The concurrent adoption of the doctrine of appropriation and the rejection of the common-law doctrine of riparian rights first occurred in Colorado, and the system that has grown out of the early decisions in this state has been called the "Colorado System." In 1872 the territorial supreme court of Colorado had before it the case of Yunker v. Nichols. (88) Yunker brought an action for trespass on the case for the diversion of water from an irrigating ditch leading from Bear creek to the plaintiff's farm. The ditch was constructed in 1871 by the plaintiff, the defendant and one Bell, under a verbal agreement that they would share equally in the water to be, conveyed therein, to irrigate their several parcels of land. After the ditch was constructed across defendant Nichols' land, to the land of the plaintiff, the defendant diverted the water upon his own land so that none passed down to the plaintiff. As it did not appear there was any memorandum of the agree

(85) Sturr v. Beck, 6 Dak. 71, 50 N. W. 486 ('88); S. C., 10 Sup. Ct. 350, 133 W. S. 541 ('90); Benton v. Johncox, 17 Wash. 277, 49 P. 495 ('97).

(86) See cases cited in note 84, supra. (87) Statutes of the states and territories, post, Part X; Lux v. Haggin, 69 Cal. 255, 10 P. 674 ('86); Border v. Trespalacios R. & I. Co.,

Tex., 82 S. W. 461 ('04); S. C., 98 Tex. 494, 86 S. W. 11 ('05); Bullerdick v. Hermsmeyer, Mont., 81 P. 334 ('05). (88) 1 Colo. 551 ('72).

§ 21. "Colorado System"-Yunker v. Nichols.

ment in writing, the trial court, Judge Wells presiding, took the position, that the right to flow water over the land of another was such an interest in the land as to bring the contract within the statute of frauds; and it not being in writing, the plaintiff could not recover. The court so instructed the jury and they accordingly returned their verdict for the defendant. In the appellate court we find that the three justices there presiding-Hallett, Belford and Wells, all still living in Denver, Colorado--were unanimous in the opinion that the plaintiff should recover, but each had a distinct and in some respects a widely different reason for his opinion. Hallett, C. J., contended that the statute of 1861, p. 67, providing that persons owning claims on the bank, margin or in the neighborhood of any stream, should have a right of way over adjacent lands for purposes of irrigation, was a statutory grant of a right of way and withheld from the landowner the absolute dominion of his estate which would enable him to deny the right of others to enter upon it for the purposes of obtaining needed supplies of water, and that this grant so given by statute grew out of the necessities of the country-that is, the soil and climate led to the enactment of the statute, and the statute gave the grant. In support of this contention, he said:

"The principles of the law are undoubtedly of universal application, but some latitude of construction must be allowed to meet the various conditions of life in different countries. The principles of the decalogue may be applied to the conduct of men in every country and clime, but rules respecting the tenure of property must yield to the physical laws of nature, whenever such laws exert a controlling influence. In a dry and thirsty land it is necessary to divert the waters of streams from their natural channels, in order to obtain the fruits of the soil, and this necessity is so universal and imperious that it claims recognition of the law. (Referring apparently to the statute.) The value and usefulness of agricultural lands, in this territory, depend upon the supply of water for irrigation and this can only be obtained

by constructing artificial channels through which it may flow over adjacent lands. These artificial channels are often of great length and rarely within the lands of a single proprietor. * * * Lands situated

at a distance from the stream cannot be irrigated without passing over intermediate lands, and thus all tilled lands, wherever situated, are subject to the same necessity. In other lands where the rain falls on the just and the unjust, this necessity is unknown, and is not recognized by law. * * * When the lands of this territory were derived from the general government they were subject to the law of nature, which holds them barren until awakened to fertility by nourishing streams of water, and the purchasers could have no benefit from the grant without the right to irrigate them."

Belford, J., in a lengthy opinion, took the position that the defendant was estopped from denying plaintiff's right of way; that the verbal agreement between Yunker and Nichols was a parol license amounting in terms to an easement, revocable as to future enjoyment, but that being partly executed, and upon the faith of the license, Yunker having expended money in the construction of the ditch, the license would be enforced upon the two grounds of estoppel and fraud, and the specific performance of a partly executed contract to prevent fraud. In addition to the foregoing grounds, Justice Belford further urged that the territorial legislature, being "keenly alive to the wants and necessities of our people," had enacted a law on the subject of irrigation designed to secure to all claimants, owners or holders of land within the territory situated on the bank, margin or in the neighborhood of any stream of water, the use of the water of such stream for the purpose of irrigation and to make such land available to the full extent of the soil for agricultural purposes. He further argued that the legislature had provided that, when the land so held or owned was removed from such stream, the owner or claimant should have a right of way through the farms or tracts of land, above or below him, upon the stream;