$25, "Colorado System" in Other Arid States.

be considered the settled law here. Whether or not it is a beneficent rule it is the law of necessity." (119)

Berry, J., dissented, denying that the doctrine of riparian rights is a phantom unless unlawfully and unjustly made so. The doctrine first promulgated by the Colorado court was followed by New Mexico in 1891, (120) by Utah in 1891, (121) and by Wyoming in 1896. (122) The Wyoming supreme court in Moyer v. Preston handed down a very carefully considered opinion, and after discussing the decisions of those states adhering to the commonlaw doctrine of riparian rights, followed the views expressed by the Colorado supreme court in Coffin Left-Hand Ditch Co. (123) Arizona declared

V.

itself in 1895, saying:

"Not even the common-law doctrine of riparian rights is acknowledged by us.” (124)

In all of the arid states following the "Colorado System" and sustaining the doctrine of appropriation as against the common-law doctrine of riparian rights, the law has become well settled and litigants are not inclined to raise nor the courts to listen to any other contention. Its beneficent results have now been demonstrated by more than thirty years of continuous practice, and the property interests that have developed under it now amount in value to hundreds of millions of dollars.

(119) See, also, Krall v. U. S. [Ida.], 79 Fed. 241 ('97). (120) Trambley v. Luterman, 6 N. M. 15, 27 P. 312 (91). (121) Stowell v. Johnson, 7 Utah 215, 26 P. 290 ('91). (122) Moyer v. Preston, 6 Wyo. 308, 44 P. 845 ('96); Willey v. Decker, 11 Wyo. 32, 73 P. 210 ('03).

(123)
(124)

6 Colo. 443 ('82).
Austin v. Chandler, - Ariz.

PART II.

APPROPRIATION OF WATER

AND ITS INCIDENTS.

CHAPTER 5.

SOURCES OF WATER FOR APPROPRIATION.

(a) Natural Rivers, Streams, Tributaries, Rainfall, Canyons and Reservoirs.

§ 26. Natural Rivers and Streams-Watercourse. The sources of appropriation are many, and there are numerous decisions defining them. The most common source is the surface watercourse. The constitutions and statutes of the arid and semiarid states and territories almost invariably refer directly to "running streams," "natural stream," "water in a watercourse," and "flowing water,” (1) and these terms are almost universally used by the courts in defining the principal source of appropriation. To constitute a watercourse, the size of the stream is immaterial. It must be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the flow of water need not be constant. (2) There must be a stream usually flowing in a particular direction. When water has a definite source, as a spring, and takes a definite channel, it is a water

(1) See laws of states and territories, post, Part X. (2) A stream may sink in the sands and disappear, leaving a dry channel for a distance, when it will rise again to the surface. This does not destroy its character as a watercourse. See Barnes v. Sabron, 10 Nev. 217 ('75); Platte Val. Irr. Co. v. Buckers Irr. M. & Imp. Co., 25 Colo. 77, 53 P. 334 ('98); post, $33, subterranean waters in defined channels.

(a) Natural Rivers, Etc.

§ 26, Natural Rivers, Streams-Watercourse. course. (3) There must be a channel, a bed to the stream, and not merely low land or a slough over which water flows. (4) In every arid or semi-arid state and territory it is to-day provided, in effect, by constitution or statute, that the water of the natural streams not heretofore appropriated is the property of "the public," or "the people," and subject to appropriation. (5) In Colorado, (6) Idaho (7) and Wyoming, (8) this provision is embodied in the constitution.

§ 27. Tributaries.

The watercourses constituting the drainage system of a watershed constitute a common source. An appropriation of the waters of a certain stream naturally applies to the waters of all tributaries of that stream above the point of appropriation and diversion, (9) and the rights of the appropriator cannot be impaired by subsequent appropriations of water from such tributaries. (10)

§ 28. Navigable Waters.

A navigable river has been defined by the supreme court of Nebraska as one which affords a channel

(3) Pyle v. Richards, 17 Neb. 180, 22 N. W. 370 ('85); Morrisey v. C. B. & Q. R. Co., 38 Neb. 406, 56 N. W. 946 ('93); see, also, Palmer v. Waddell, 22 Kan. 248 ('79); Rait v. Furrow, -Kan. 85 P. 934 ('06); Rigney v. Tacoma L. & W. Co., 9 Wash. 576, 38 P. 147 ('94).

(4) Chicago K. & W. R. Co. v. Morrow, 42 Kan. 339, 22 P. 413 ('89); see, also, Barnes v. Sabron, 10 Nev. 217 ('75); Union Pac. R. Co. v. Dyche, 31 Kan. 120, 1 P. 243 ('83); Lux v. Haggin, 69 Cal. 255, 10 P. 674 ('86); Geddis v. Parrish, 1 Wash. St. 587, 21 P. 314 ('89); Simmons v. Winters, 21 Ore. 35, 27 P. 7 ('91); Ft. Morgan L. & C. Co. v. So. Platte D. Co., 18 Colo. 1, 30 P. 1032 ('92); Town v. Missouri Pac. Ry. Co., 50 Neb. 768, 70 N. W. 402 ('97); Platte Val. Irr. Co. v. Buckers I. M. & Imp. Co., 25 Colo. 77, 53 P. 334 ('98). (5) Statutes of states and territories, post, Part X.

(6)

(7)

Art. 16, §§5, 6.

Art. 15, §3.

(8) Art. 1, §31.

Irr. Co. v. Campbell, 2 Ida. 378, 18 P. 52 ('88); Low v. Shaffer, 24 Ore. 239, 33 P. 678 ('93); Low v. Rizor, 25 Ore. 551, 37 P. 82 ('94).

· (10) Strickler v. City of Colo. Sprs., 16 Colo. 61, 27 P. 313 ('91); Farmers' Ind. D. Co. v. Agri. D. Co., 22 Colo. 513, 45 P. 444 ('96); Platte Val. Irr. Co. v. Buckers Irr. M. & Imp. Co., 25 Colo. 77, 53 P. 334 ('98).

The beds of navigable

for useful commerce. (11) streams belong to the state. ( 12 ) In the arid and semi-arid states and territories navigable rivers are comparatively few, and the courts in these localities have not been called upon to pass upon the validity of appropriations from such streams except in a few widely separated instances. There is no doubt but that the waters of these streams may be appropriated so long as the navigable character of the river is not impaired. (13)

§ 29. Interstate Streams.

The doctrine of appropriation as applied to interstate waters has been before the courts a number of times within the past ten years, and the state and United States circuit courts have recognized the appropriation of the waters of interstate streams, and have protected the prior appropriators against diversions by subsequent appropriators in the adjoining state. (14) In a very recent case involving interstate waters, the question of priority as between

(11) Clark v. Cambridge & A. I. & I. Co., 45 Neb. 798, 64 N. W. 239 ('95).

(12) Green v. Swift, 47 Cal. 536 ('74); Cardwell v. Sacramento Co., 79 Cal. 347, 21 P. 763 ('89); Gould "On Waters," $$42, 78; 1 Stat. at Large 468, §9; 2 Id. 235, §17; U. S. Rev. Stat., §2476.

(13) Miller v. Enterprise Co., 142 Cal. 178, 75 P. 770 ('04); Montecito Co. v. Santa Barbara, 144 Cal. 578, 77 P. 1113 ('04); U. S. v. Rio Grande D. & I. Co., 174 U. S. 690, 19 Sup. Ct. 770 ('99). In this case the court discusses the question of a trial court taking judicial notice of the navigability of a river. The supreme court of the United States held that "the question always is one of fact whether such appropriation substantially interferes with the navigable capacity within the limits where navigation is a recognized fact.' The supreme court of the territory of New Mexico was reversed, and the case remanded, with instructions to set aside the decree of dismissal and to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and appropriating the waters of the Rio Grande river would substantially diminish the navigability of that stream. This case was again before the United States supreme court and is reported 184 U. S. 416, 22 Sup. Ct. 428 ('01); see, also, Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758 ('96).

(14) Howell v. Johnson [Mont.], 89 Fed. 556 ('98); Conant v. Deep Cr. & Curlew Val. Irr. Co., 23 Utah 627, 66 P. 188 ('01); Morris v. Bean [Mont.], 123 Fed. 618 ('03); Hoge v. Eaton, Colo. 135 Fed. 411 ('05); Clark v. Allaman, Kan. 80 P. 571

(a) Natural Rivers, Etc.
29, Interstate Streams.

the appropriators of the different states was not considered, but the court rotated the water between the appropriators in the two states, giving the entire flow to one set for five days and to the other set for the next five days. (15)

§ 30. Rainfall and Canyons.

A valid appropriation of water may be made from a canyon, gorge or ravine, notwithstanding it is not a running stream, and the water comes entirely from rainfall and melting snow in the surrounding hills. These waters, ordinarily classed as "surface waters," (16) by assuming a natural and defined channel, and escaping through that channel, become possessed of the attributes of the waters of a natural watercourse, and subject to appropriation and diversion. (17)

(b) Percolating and Subterranean Waters, Seepage and Springs.

$31. Percolating Waters.

Percolating waters are those which seep through the soil and gravel without any definite channel, and do not form part of the body or flow, surface or subterranean, of any stream. (18) These waters belong to the soil, form a part of the realty, and may be used and controlled by the owner of the realty without regard to the effect of such use upon his neighbor's land or supply of water. ( 19 ) Such use, however,

(15) Anderson v. Bassman [C. C. Cal.], 140 Fed. 14 ('05); see post, Part IV, ch. 14, §87.

(16) Los Angeles Assn. v. Los Angeles, 103 Cal. 466, 37 P. 375 ('94).

(17) Palmer v. Waddell, 22 Kan. 248 ('79); Denver T. & Ft. W. R. Co. v. Dotson, 20 Colo. 304, 38 P. 322 ('94).

(18)

Gould "On Waters," $280; Vineland, Etc., Co. v. Azusa Co., 126 Cal. 486, 58 P. 1057 ('99).

(19) Mosier v. Caldwell, 7 Nev. 363 ('72); Emporia v. Soden, 25 Kan. 410 ('81); Sullivan v. Northern Spy. M. Co., 11 Utah 438, 40 P. 709 ('95); Crescent Min. Co. v. Silver King M. Co., 17 Utah 444, 54 P. 244 ('98); Willow Cr. Irr. Co. v. Michaelson, 21 Utah 248, 60 P. 943 ('00); Herriman Irr. Co. v. Keel, 25 Utah 96, 69 P. 719 (02); Bruenning v. Dorr, 23 Colo. 195, 47 P. 290 ('96); Wilson v. Ward, 26 Colo. 39, 56 P. 573 ('99); Deadwood Cent. R. Co. v. Barker, 14 S. Dak. 558, 86 N. W. 619 ('01).