situation as resulting from the constitution and statutes of Idaho and the reiterated decisions of the court of last resort of that State, which are referred to in the margin,1 that we might place our decree of affirmance upon the reasons which controlled the courts below. We, however, refer to a contention urged by the petitioner as to the existence of riparian rights in Idaho and the sanction which those rights as there recognized are deemed to give to the asserted power to appropriate the whole current of the river for the purpose of making fruitful the limited appropriation of water which was made. It is not urged that the law of appropriation does not prevail in Idaho, but it is supposed that a system of riparian rights goes hand in hand with the doctrine of appropriation and that the two co-exist and may harmoniously coöperate. But the best demonstration of the error which the proposition involves results from a consideration of the effort made to apply it in this case and the reasons advanced to sustain it. We say this because it may not be doubted that the application' here sought to be made of the doctrine of riparian rights would be absolutely destructive of the fundamental conceptions upon which the theory of appropriation for beneficial use proceeds, since it would allow the owner of a riparian right to appropriate the entire volume of the water of the river without regard to the extent of his beneficial use. And the incongruity of the proposition is aptly illustrated by the arguments

1 Constitution of Idaho, art. 14, § 3; Rev. Stat. of Idaho, §§ 3155 et seq.; Laws of Idaho 1903, p. 223.

Malad Valley Irrigating Co. v. Campbell, 2 Idaho, 411; Geertson v. Barrack, 3 Idaho, 344; Conant v. Jones, 3 Idaho, 606; Wilterding v. Green, 4 Idaho, 773; Boise City Irrigation & Land Co. v. Stewart, 10 Idaho, 38; Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho, 405; Van Camp v. Emery, 13 Idaho, 202; Hutchinson v. Watson Slough Ditch Co., Limited, 16 Idaho, 484; Farmers' Coöperative Ditch Co. v. Riverside Irr. Dist., 16 Idaho, 525; Speer v. Stephenson, 16 Idaho, 707.

advanced to sustain it, since those arguments recur to and rest upon the common-law doctrine of riparian rights, of the duty to allow a stream to flow as it was wont and of the relative rights of all persons bordering upon the stream arising from their riparian ownership. The misapprehension upon which the contention rests is the assumption that because a certain character of riparian rights may exist in Idaho therefore such rights as are absolutely incompatible with the rule of prior appropriation for beneficial use may co-exist with that system. For instance, the case of Shephard v. Cœur d'Alene Lumber Company, 16 Idaho, 293, which upheld the right of a riparian proprietor to prevent another from wrongfully virtually taking his water front and cutting him off from ingress to and egress from such water front affords no ground for holding that such riparian rights exist as are wholly incompatible with and indeed destructive of the system of appropriation for beneficial use. So, again, the license given by the terms of § 3184 of the Revised Statutes of Idaho, excerpted in the margin 1 as pointed out by the court below does not confer upon such riparian owner the power to appropriate without reference to beneficial use the entire volume of a river or its current to the destruction of rights of others to make appropriations of the unused water. But the precise question we are considering has been so completely foreclosed by a ruling of the Supreme Court of the State of Idaho as to leave no room for discussion. Thus, in Van Camp v. Emery, 13 Idaho, 202,

1

1 All persons, companies and corporations, owning or having the passory [sic] title or right to lands adjacent to any stream, have the right to place in the channel of, or upon the banks or margin of the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks, requisite for the flow thereof to and upon such adjacent lands; and the right of way over and across the lands of others, for conducting said waters, may be acquired in the manner prescribed in the last two sections. (§ 3184, Rev. Stat. Idaho.)

the facts were these: The defendant lived above the plaintiff on a stream and was assumed as a prior appropriator to be entitled to forty-five inches of the water of the stream. The plaintiff who also was an appropriator, but subordinate to the rights of the defendant complained that the latter had not only diverted his forty-five inches, but had erected a dam in the stream so as to impede the flow to his (plaintiff's) intake and deprive him of his right of appropriation, the dam being put in place by the defendant for the purpose of holding the water so as to give him the benefit of subirrigation of certain meadow lands which he owned. It was held that the defendant, while he had a full right to draw off the forty-five inches to which he was entitled as an appropriator for beneficial use, could not by damming the stream get more than his beneficial appropriation entitled him to so as to injure the right of others to appropriate from the stream. In the course of the opinion, the court said (p. 208):

"If the defendant who lives above plaintiff is entitled to a priority for forty-five inches of water, he may unquestionably divert that quantity, but when he has once done so, he may not dam the stream below or hinder or impede the flow of the remaining stream to the plaintiff's headgate. The fact that such dams and impediments hold the water and cause a subirrigation of the adjacent meadows cannot of itself justify the maintenance of such obstructions. Whatever amount of water defendant shows himself entitled to for the irrigation of his meadows or other lands as a prior right over the plaintiff, the judgment should so decree, but beyond that he cannot go under any other pretext or claims for the natural condition of the stream. In this arid country where the largest duty and the greatest use must be had from every inch of water in the interest of agriculture and home-building, it will not do to say that a stream must be dammed so as to cause subirrigation of a few acres at a loss of enough

water to surface irrigate ten times as much by proper application.

And the absolute untenability of the contention here made as to riparian rights was again foreclosed by the Supreme Court of Idaho in Hutchinson v. Watson Slough Ditch Co., Limited, 16 Idaho, 484. Indeed, in that case the court referred to and adversely disposed of the view taken of the authorities here relied on as sustaining the co-existence of the asserted riparian rights and the doctrine of appropriation. After making a full reference to authorities, in the course of its opinion the court said (p. 491):

"A riparian proprietor in the state of Idaho has no right in or claim to the waters of a stream flowing by or through his lands that he can successfully assert as being prior or superior to the rights and claims of one who has appropriated or diverted the water of the stream and is applying it to a beneficial use. To this extent, therefore, the common-law doctrine of riparian rights is in conflict with the constitution and statutes of this state and has been abrogated thereby.

"Sight should not be lost of the correct principle involved in such cases, namely, that a riparian owner, as such, acquires no right to the waters flowing by or through his lands that is prior or superior to that of a locator, appropriator and user of such waters. In other words, there is no such thing in this state as a riparian right to the use of waters as against an appropriator and user of such waters who has pursued the constitutional and statutory method in acquiring his water right. In order to acquire a prior or superior right to the use of such water, it is as essential that a riparian owner locate or appropriate the waters and divert the same as it is for any other user of water to do so."

As we have pointed out the court below did not question the right of the plaintiff to take by proper means

from the river the quantity of water actually appropriated by him for beneficial use and our decree of affirmance will therefore not in any way affect such rights.

GONZALES v. BUIST.

Affirmed.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.

No. 181. Submitted March 4, 1912.-Decided April 1, 1912.

Appellant's contention that he was not accorded a proper hearing in the court below cannot be availed of here if the record does not show that he formally excepted or objected to the rulings. Apache County v. Barth, 177 U. S. 538.

Under § 35 of the Porto Rican act of April 12, 1900, 31 Stat. 85, c. 191,

writs of error to and appeals from final decisions of the Supreme Court for the District of Porto Rico are governed by the rules that govern writs of error to and appeals from Supreme Courts of the Territories, which confine this court to determining whether the court below erred in deducing its conclusions of law from the facts as found, and to reviewing errors committed as to admission or rejection of testimony upon proper exceptions preserved. Young v. Amy, 171 U. S. 179.

On appeal from the Supreme Court of a Territory the agreed statement or findings must be of the ultimate facts; for if they are merely, as in this case, a recital of testimony or evidentiary facts, there is nothing brought to this court for consideration, and the judgment must be affirmed. Glenn v. Fant, 134 U. S. 398.

4 Porto Rico Fed. Rep. 243, affirmed.

THE facts, which involve the rules governing appeals from the Supreme Court of Porto Rico and the District Court of the United States for the District of Porto Rico, are stated in the opinion.