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224 U.S.

Argument for Plaintiff in Error.

SCHODDE, EXECUTRIX OF SCHODDE, v. TWIN FALLS LAND AND WATER COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 2. Argued March 7, 8, 1911.-Decided April 1, 1912.

Under the laws of Idaho relating to appropriation of water, the extent of beneficial use is an inherent and necessary limitation upon the right to appropriate; and one who appropriates does not have further right to the current of the stream for the purpose of obtaining power to distribute the water required for the beneficial use which is the basis of his appropriation.

There is no rule of riparian rights in Idaho by which one whose land borders on a stream can appropriate the whole current thereof for the purpose of making fruitful the limited appropriation of water to which he is entitled for beneficial use.

The Federal courts below rightly followed the decisions of the state courts of Idaho, in holding that the common law doctrine of riparian rights had been abrogated to the extent that the provisions of the constitution and statutes of Idaho in regard to the rights of appropriators for beneficial use are in conflict therewith.

In this case held that one who had lawfully appropriated the amount of water from a stream in Idaho to which he was lawfully entitled for beneficial use could not restrain those below him from raising the river so as to interfere with the power necessary to raise the water appropriated by him to a height necessary for distribution over his land; neither his appropriation nor his riparian rights gave him any control over the current of the stream. 161 Fed. Rep. 43; 88 C. C. A. 207, affirmed.

THE facts, which involve the extent of the right to appropriate water in Idaho, are stated in the opinion.

Mr. Joseph R. Webster, with whom Mr. Kirtland I. Perky and Mr. John F. McLane were on the brief, for plaintiff in error:

The decisions of both courts below ignore plaintiff's riparian rights and his common law right to a continuance

Argument for Plaintiff in Error.

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of the flow of the current which are not abrogated by the doctrine of appropriation as applied in Idaho, but merely modified or supplemented as to the mode of acquisition and the conditions of enjoyment.

Plaintiff has complied with the requirements of the law of appropriation and has thus fixed his riparian right to the current, so as to vest the same in him as against subsequent appropriators.

No notice of intention to appropriate the current was necessary; the diversion of the current within the channel, by means of wing dams, to the plaintiff's wheels, was a sufficient diversion, if any is required, to satisfy the law of appropriation; and the maxim, "Aqua currit et debet currere ut currere solebat," applies. 3 Kent's Comm. 439441, cited in United States v. Rio Grande Dam and Irrigation Co., 174 U. S. 690, 702.

The right to the use of water flows from riparian ownership of land; it belongs to the land. The water must be permitted to run in its accustomed channel, without material alteration of the channel, or acceleration or diminution of the flow. The rights of the various riparian proprietors are equal regardless of any priority in such use; each must be careful not to injure any other. Each may make a reasonable use of the water as it passes, even though there is some slight decrease in quantity, or variation in weight and velocity, of the current.

The doctrine of appropriation is claimed to have overthrown the common law doctrine in many of the western States, Idaho among the number. It had its origin in the customs of the California miners, and its legal justification in necessity. For the history of its origin and development see Irwin v. Phillips, 5 California, 140; Conger v. Weaver, 6 California, 548; Hill v. King, 8 California, 336; Bear River Co. v. New York Min. Co., 8 California, 327.

In these cases there is no denial of riparian rights if

224 U.S.

Argument for Plaintiff in Error.

any had accrued. In Crandall v. Woods, 8 California, 136, appropriation is established as a distinct doctrine, not based upon the common law, but derived from the customs of miners, and until the decision in Lux v. Haggin (1886), 69 California, 225, the California court is devoted to the development of the doctrine of appropriation.

While the doctrine of appropriation is thus established as independent of that of riparian rights, its principles come to be assimilated to the latter doctrine. Phoenix Water Co. v. Fletcher, 23 California, 481; Hill v. Smith, 27 California, 476.

For cases involving conflict between appropriation and riparian rights, see Yunker v. Nichols, 1 Colorado, 551; Coffin v. Left Hand Ditch Co., 6 Colorado, 443; Long on Irrigation, § 6.

The question is one of the local law, and the rule laid down by the state courts having jurisdiction to declare the law in the particular case should be followed. United States v. Rio Grande &c. Co., 174 U. S. 690; Gutierrez v. Albuquerque Co., 188 U. S. 545; Clark v. Nash, 198 U. S. 361; Kansas v. Colorado, 206 U. S. 46.

As to riparian rights in Idaho, see act of February 10, 1881. See Laws, 267, and compare with California Civil Code, 1872, §§ 1410-1422. See also Rev. Stat., Idaho, 1887, §§ 3155-3167, and § 3299, Rev. Codes, 1909.

The state of the law when Idaho was admitted to the Union was an irrigation code taken from California, a statute conferring the right to the use of waters in riparian owners, and a single Supreme Court decision, adopting in effect the California doctrine of modified riparian rights as established in Irwin v. Phillips and Lux v. Haggin. By the constitution of 1889, while nothing is said about riparian rights, the use of water is declared a public use to be acquired by appropriation; it is no longer merely private riparian property where a question of priority of appropriation is involved. In other words, a purely ri

Argument for Plaintiff in Error.

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parian right to the use of water may be defeated by a subsequent, as well as by a prior, appropriation, but it does not follow that the doctrine of riparian rights is "abolished in toto."

For cases involving the doctrine of appropriation and of priority between appropriators, the public character of the use of waters, and the right of the State to regulate the matters involved in the application of the waters of the State to its development, during the first ten or twelve years of statehood, see Wilterding v. Green, 4 Idaho, 773; Geertson v. Barrack, 3 Idaho, 344; Conant v. Jones, 3 Idaho, 606; Malad Valley Irrigating Co. v. Campbell, 2 Idaho, 411; Sandpoint Water & Light Co. v. Panhandle Development Co., 11 Idaho, 405; Boise City Irrig. & Land Co. v. Stewart, 10 Idaho, 38. Powell v. Springston Lumber Co., 12 Idaho, 723, 1904, is the first case in Idaho which consciously recognized a riparian right as such. But it is soon followed by others. See Johnson v. Johnson, 14 Idaho, 561; Shephard v. Cœur d'Alene Lumber Co., 101 Pac. Rep. 591.

A riparian owner in Idaho still retains such right to have the waters flow in the natural stream through or by his premises as he may protect in the courts as against persons interfering with the natural flow, or who attempt to divert or cut off the same wrongfully and arbitrarily, and without doing so under any right of location, appropriation, diversion or use, and who do not rest their right to do so upon any right of use or appropriation. Hutchinson v. Watson Slough Co., 101 Pac. Rep. 1059.

A riparian owner may claim or."fix" his right in such a way as to prevent its subsequent appropriation. This is accomplished by "appropriating" that right in the manner prescribed by the statute.

The foregoing rules apply to this case. Up to the time that the defendant began the construction of its works the plaintiff had the rights of a riparian proprietor, good as against everybody but an appropriator.

224 U.S.

Argument for Plaintiff in Error.

The riparian right upon which the plaintiff insists is to the current flow of the stream. That is established. Tyler v. Wilkinson, 4 Mason, 397; Weiss v. Iron Co., 11 Pac. Rep. (Ore.) 255; Gould v. Boston Dock Co., 13 Gray, 442; Head v. Amoskeag Mfg. Co., 113 U. S. 19; Shamleffer v. Peerless Mill Co., 18 Kansas, 33; Lux v. Haggin, 69 California, 255; McCalmont v. Whitaker, 3 Rawle, 84; 23 Am. Dec. 102.

This riparian right to the flow is a valuable property right, of which the riparian owner cannot be deprived without his consent, or compensation being paid therefor, when it is desired to devote the right to a public use. Yates v. Milwaukee, 10 Wall. 497; Pine v. York, 103 Fed. Rep. 337; Kaukauna Water Power Co. v. Green Bay Co., 142 U. S. 276; Sturr v. Beck, 133 U. S. 541.

Even assuming that defendant is an appropriator, the plaintiff must still prevail as a riparian owner. As a riparian owner, he had title to the current good as against all but an appropriator. He had the right to "fix" such right so as to prevent its subsequent appropriation, or its defeat by such an appropriation.

What was so clearly a riparian right at common law may be appropriated by a riparian proprietor under the Idaho law. The difference between the Idaho law and the common law of riparian rights rests principally in the mode of acquisition of those rights. Under the common law the right attaches to riparian proprietorship, and continues as incident thereto whether it is ever used or not. Under the Idaho law the right exists, but to be secure against the higher law of appropriation, it must be appropriated, that is, beneficially used; the riparian owner cannot sit back and retard the development of the country by claiming a dormant right. If he wants the right he must use it, and give notice to the world that he is using it, before some one else spends time and money in acquiring a similar right.

Plaintiff had a riparian owner's right to the current;

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