an abandonment of this right, and others may take the water who will use it. This would apply the same rule of use to the riparian claimant as any appropriator.

No good reason can be advanced why such a rule of use should not apply in both cases. The appropriator and the riparian claimant both, either directly or indirectly, acquired their rights to the use of the public waters through federal enactments, one recognized by virtue of the custom of humid England and the other by a custom of all arid regions the world over, and there is no good reason why one should exercise privilege not enjoyed by the other. In a comparatively recent case11 the Supreme Court of Washington have indicated their intention to follow such a principle. The court says: "We think it comports with the general policy of the state to hold that this statute contemplated the use by the abutting owner of the water necessary for his present needs and for those that accrue, as he in good faith proceeds with reasonable dispatch to construct the means for applying the water to his adjacent arid lands," water to be used within a reasonable time, say two years.

Dual System of Water Rights. In those states adhering to the common law rule of

riparian rights and by statute providing for the appropriation of water, as in Washington, we have dual systems of law, governing waters, which are antagonistic in principle, and consequently are usually clashing. One exists by virtue of a statute and the other through court decrees. These two systems are antagonistic in their foundation principles, and are therefore antagonistic when it comes to their application. Had the government of the United States taken as much pains in disposing of the waters of the public domain in as uniform and systematic a manner as it did of the public lands in the arid region, over which these waters run, the greater portion of which lands are absolutely worthless with

out the application of the water, the laws regarding water rights would not be in their present unsettled and inharmonious condition.

At present the appropriators on our streams, in many instances, have filed on more water than the stream can supply;

and under the constitution and statute claim the right to beneficially use it all. In opposition to this the bank owners under common law rules claim the right to have all of said waters flow past their lands; and have a right to restrain the diversion of said waters to any lands beyond those owned by the bank proprietors. Mead says: "No one, whether an appropriator or a riparian proprietor, knows definitely how much water he is entitled to, nor how soon he may have to defend his rights in a long and costly law suit."

Eminent Domain.-By statute one wishing to acquire the water rights of a riparian owner for a public use may do so by taking them under an eminent domain proceeding, but only such part of the water as the owner is not now using for irrigation or as will not be needed by him in the future. Kinney on Irrigation and Water Rights12 says: "That the difficulties in the way of getting the proper defendants in a suit to condemn against the bringing of such action, alriparian rights are practically prohibitive though the abstract right to condemn such if possible, it would be a vastly expensive property may be given by statute, and that, proceeding."

In Washington the condemner must first pay for a right of way across riparian lands and then for the use of water in excess of the riparian owner's present needs and any contemplated use that said owner may desire to put the water to within a reasonable time. In other words, the bank owner is presumed to have a right to the use of the public waters of the state in excess of his present and contemplated needs, and if anyone else wants to use such excess he must

(12) § 1089.

go to the expense of buying it on a holdup basis or undertaking the herculean task of condemning it. And yet the rights which the purchaser must buy or condemn in order to obtain immunity from injunction are recognized as of no general worth. For, in assessing damages on unused riparian rights in Nebraska the courts have held that where the riparian proprietors were possessed of the naked right to a reasonable use of the waters of a stream, yet where such a right is not coupled with an actual diversion or application of such waters to some beneficial use, the measure of daniages for future use, defeated by the taking, cannot be considered.13

Under the doctrine laid down in the Still case1 and recently followed in a case in the Superior Court of Yakima County, every riparian owner on any stream in Washington not only has a right to the use of water for domestic and irrigation purposes, but, as against the appropriator of water, has a right to his method of use, however wasteful that may be. Chandler says: "The conclusion to be drawn from these cases is that the lower riparian owner may not only enjoin the diversion of the natural flow, but may also enjoin the storage of even the flood waters if such storage will result in damages, either present or prospective."

Rights to Store Water Cannot Be Acquired by Condemnation.-Under the riparian doctrine it will be impossible to store the flood waters of our streams for use upon non-riparian lands unless the bank owners are bought off at their own prices. Under our statute and the rulings of our courts, the privilege of storing flood waters to be used on other than riparian lands cannot be acquired by condemnation, because the statute expressly says that the right to condemn riparian rights "Is not intended in any manner to allow water to be taken from any person, that is used by said person himself for irrigation, or that is needed for that

purpose by any such person"; and in the cases cited the courts have said "that the flood waters were being used by the riparian owners." In Still v. Palouse Irrigation & Power Co.15 the court says: "In this case the respondents do not make use of the high waters, and the greatest use and benefit to their land comes from such use." This leaves the riparian owner to sell his flood water rights, or not, as he likes, and at any price he may see fit to ask or accept. Under such conditions, men of ordinary business sagacity will not invest their money in water right projects. Under such a rule of law the rights of all water users, acquired by appropriation, and now put to a beneficial use, are open to attack by any riparian proprietor who may wish to hold up the water level in the stream so it may either flood or "sub" his land.

Investments of Appropriators in Jeopardy. The following quotation from the brief of defendant's attorney in the Madera Canal Co. case is interesting. He said:

"The interests involved in this suit are of such magnitude, not only as between the parties themselves, but also to thousands of others, and the result reached so disastrous to the defendants, so destructive to the vast and beneficial improvements made by them in good faith and in the belief that the same law as to those matters applied both to the state and government lands in California, so disastrous to the people of a large part of California, and so destructive of all those great interests which have grown up under the irrigation system based upon the doctrine of appropriation to beneficial uses, that we firmly believe your honors will wish, even if in the end you feel compelled to adhere to the views already expressed, to do so only after you have received all the light | which the profession can give. No matter how onerous and pressing the duties which devolve upon your honors, there is, we submit, before you no question or business which can compare in public interest to the

115.

(14) 64 Wash. 606.

(15) 64 Wash. 606.

inquiry whether the decree shall stand which condemns to absolute barrenness the thousands of acres of land reclaimed from the desert by the vast expenditures of the defendants here and now a garden of productiveness and beauty, in obedience to the law of another country, based upon the customs, and arising under conditions the most diverse from ours; whether, in obedience to that law, a large part of this state, after a progress almost unparalleled and improvements made at incalculable cost of labor and

treasure, is to be condemned to return to sterility and unproductiveness; whether, in obedience to that law, the wheel of progress is to be turned back and the present prosperity of thousands changed into ruin and poverty that a few men, who happen to own land on the banks below, may enjoy the pleasure of seeing the stream flow as it was. accustomed to flow. Your honors will not, we are sure, forget that this decree, if it is to stand, not only overthrows the progress of the past, but puts a perpetual bar upon the future progress and development."

17

If the rule laid down in Miller and Lux v. Madera Canal Co.,18 supra, and followed in Still v. Palouse Irrigation & Power Co.,1 is the law then the extract from Mr. Gerber's argument (though gloomy) is entirely. applicable to present conditions.

In the Still case18 the court says: "A riparian owner, such as respondents are here shown to be, has a right to the natural flow of the waters in their natural and accustomed channels without diminution or alteration, subject only to such rights and use in every other riparian owner, a right that is as much included in the ownership of the land as the soil itself, and can no more be interfered with by the act of others. And, while the application of this doctrine has in some of the Western states sometimes been denied, on the theory that the rules of the common law respecting riparian owners were inapplicable to conditions and necessi

ties of the people in the particular localities where the cause of action arose, it has since its first announcement here invariably been upheld in this state, excepting where it has been subjected to a priority of appropriation."

Considering the fact that the great bulk of the water now diverted and used for irrigation purposes in the state was acquired under appropriation statutes, and that millions of dollars have been invested in developing such water rights, and that millions more have been invested by substantial citizens who live under such projects, there would seem to be a legal and moral duty resting upon the state to remove the cloud from such titles, to define them, and to make them a matter of record.

Water Right Litigation.-The history of water rights in those states operating under the common law of riparian rights is that of endless litigation and delay in the development of their natural resources.

In California, following the common law rule, millions of dollars have been spent in water litigation without settling the rights of anybody except those directly parties to the litigation. "Under existing conditions water rights in California cannot be settled until every claimant on each stream and stream system has sued or has been sued by every other claimant thereon.”1o Washington, in adopting the riparian doctrine, has placed every water title in the state in the same jeopardy as those in California.

All water rights in such states are open to attack in the courts, and can never be defined and made definite until each claimant of a water right has sued every other claimant on the stream or stream system, or has been sued by them. And even then there is now nothing but the bringing of another suit to prevent the newcomer from filing an appropriation and using the water of the person having the right to it under the decree.

(19) See Conservation Commissioner Report of California, 1912.

It is readily seen that the cost of such a series of proceedings would be appalling, and even then could arrive at no final results until appropriation laws are amended and riparian rights are defined as to quantity and method of use. O. L. WALLER. Pullman, Wash.

MASTER AND SERVANT-LIMITING

AGENCY.

MOGLE v. A. W. SCOTT CO. et al.

Supreme Court of Minnesota. Nov. 21, 1919.

(Syllabus by the Court.)

174 N. W. 832.

This Court sanctions the doctrine that the head of a family, who provides for the recreation of the members of his family by furnishing an automobile for their use and pleasure, is responsible for its negligent use by any one of the family having his permission to drive it. The doctrine is a development of the rules applicable to the relation of master and servant and principal and agent, and is not to be extended to cases where an employer permits a favored employe to use, for his own pleasure, an automobile kept and ordinarily used in carrying on the employer's business.

LEES, C. Action to recover for personal injuries caused by the negligence of the defendant Sobieski in operating an automobile owned by the defendant A. W. Scott Company. On July 4, 1917, Sobieski, at the direction of J. Walter Scott, the managing officer of the A. W. Scott Company, took an automobile owned by the company to drive from Minneapolis to Wayzata, where he was to do some work for Scott. When the work was finished Scott directed him to drive the car back to Minneapolis and put it in the company's building, where it was kept, and to which Sobieski had a key. On his return, Sobieski stopped at his house for a noonday dinner and was importuned by his wife to take the car and drive to Minnehaha Park with her and her mother. He at first refused to do so, on the ground that Scott had directed him to take the car back to the place where it was kept. However, he finally yielded to his wife's persuasion, and on the trip to the

park negligently ran down and injured the plaintiff. He and the company were joined as defendants.

It was alleged in the complaint that, at the time and place of plaintiff's injury, Sobieski was a servant of the Scott Company, and in the course and scope of his employment, with full knowledge, permission and acquiescence of the company, was using the automobile in the performance of the purpose and uses for which it was intended and kept.

At the trial plaintiff called a witness by whom he sought to prove that on August 8, 1917, in the course of a conversation with Scott concerning insurance of the automobile, Scott said that Sobieski was given more privileges than other employes of the company and had full charge of the car, and that only occasionally would any of the others run it in the business, and never for pleasure; but Sobieski was allowed to use it, and frequently took it for the purpose of driving with his family on Sundays and in the evening, and that he was a reliable, careful driver. An objection to the offer was sustained-the court stating that under the allegations of the complaint, in so far as the company was concerned, plaintiff was confined to proof that Sobieski was using the car in its business and in the course and scope of his employment, otherwise there could be no recovery against it, and that the evidence failed to show that at the time of the accident Sobieski was using the car in the business of the company or within the scope or course of his employment. A verdict in its favor was directed. This appeal is from an order denying a new trial.

This court sanctions the doctrine that the head of a family, who provides for the recrea tion of the members of his family by furnishing an automobile for their use and pleasure, is responsible for its negligent use by any one of the family having his permission to drive it. The most recent expressions of the court on the subject may be found in Johnson v. Smith, 173 N. W. 675, and Plasch v. Fass (opinion filed October 24, 1919), 174 N. W. 438. The doctrine is a development of the rules applicable to the relation of master and servant and principal and agent, which have been extended to meet a new situation brought about by the invention of the automobile and its common use, with the owner's permission, by the members of his family for whom he has provided it. As was said in Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1,091, 51 L. R. A. (N. S.) 970, a man may properly make it an element of his business to pro

vide pleasures for his family, or, as it was put in Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631, the use of an automobile for the purpose of furnishing the members of the owner's family with outdoor recreation is within the scope of the business of the head of a family analogously to the furnishing of food and clothing or ministering to their health.

We are now asked to extend the doctrine to cases where an employer permits a favored employe to use, for his own pleasure, an automobile kept and ordinarily used in carrying on the employer's business. The request is put upon the ground that, through the medium of automobiles, employers may properly provide "fresh air and pleasures, during their leisure hours, as necessaries for their laboring men," and that in so doing they occupy the same position as the head of a family in similarly providing his wife and children with pleasures of that sort. If we were to hold as requested, it would tend to put an end to the praiseworthy custom of many employers who permit faithful employes to use occasionally, for their personal enjoyment, automobiles kept and ordinarily used in carrying on the employer's business. If this cannot be done without subjecting the employer to liability for damages if his employe is negligent in operating the automobile, few employers will continue to follow the custom. But, aside from this particular consideration, we think both reason and authority are opposed to plaintiff's contention. The extension of the family automobile doctrine to other relationships cannot well be justified upon any principle of the law of master and servant or principal and agent, The owner of an automobile, who loans it to another, to use for purposes personal to the borrower, is neither master nor principal, but merely a bailor, and in law is not chargeable with the consequences of the bor rower's negligence while pursuing his own ends in his own way.

For the purposes of the case, we have treated the complaint as broad enough to permit the introduction of evidence tending to show either the use of the automobile by Sobieski in the course and scope of his employment or its use with the permission of his employer for a purpose for which it was kept by the employer. Order affirmed.

NOTE-Responsibility of Owner of Automobile for Injury by Another Standing in Peculiar Relation to Owner.-The doctrine of owner of automobile being liable for injuries by member of family using same for the benefit of such family is as well said in the instant case, "a develop

ment of the rules applicable to the relation of master and servant and principal and agent," but that case denies that the logic of such development should be carried further. Why, however, should such logic be thus limited? The true inquiry it seems to me is whether in permission given to a third person to use the automobile any purpose of the owner is subserved, apart from a mere spirit of accommodation to such person.

In Dennison v. McNorton, 228 Fed. 401, 142 C. C. A. 631, Knapper, C. J., speaking for Sixth Circuit of Appeals, says broadly that: "The father is not liable for the son's alleged negligence merely because of such relationship. * To have that result the act complained of must have been done within the scope of the son's employment and in conducting what is called the father's business," citing Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N. E. 302, 46 L. R. A. (N. S.) 1091, Am. Cas. 1914C, 1082.

That case, however, holds, as I construe it, that, though an employe may be about his own business, yet if he had authority, express or implied, of the owner thus to use it, this would annex liability. In this case it did not appear that the owner had even any knowledge of such use by his employe.

Thus in Reynolds v. Denholm, 213 Mass. 576, 100 N. E. 1006, the owner was held liable where employe was allowed or suffered by the family, without objection, to use the automobile to go to his meals and to get his laundry, and the injury occurred while he was going for his laundry. The Reynolds case was said by the court to be "clearly distinguishable from the Rivoux case."

So in Cunningham v. Castle, 111 N. Y. Supp. 1057, 127 App. Div. 580, a chauffeur operating an automobile with the knowledge and permission of the owner imposed liability on the owner, though the chauffeur was on his own business.

It seems to me this is a higher test than that stated in Shamp v. Lambert, 142 Mo. App. 567, 121 S. W. 770, and in Moon v. Matthews, 227 Pa. 488, 76 Atl. 219, 29 L. R. A. (N. S.) 856, 136 Am. St. Rep. 902, to the effect generally that the servant, though given permission to use the automobile of his master, this is to be taken as prosecuting the business of the master. It seems to me, that this is a vesting of one's agent with authority and yet confining its exercise by secret or private instructions.

In Daugherty v. Thomas, Mich., 140 N. W. 615, 45 L. R. A. (N. S.) 699, it was held that by statute the owner of an automobile could not be made liable to strangers for injury by the use thereof by persons using it without his knowledge or permission. But that case involved the question of "liability of the owner of an automobile, where the same has been taken without intent to steal the same, but without the knowledge or consent of the owner and without *** any fault or negligence on his part. We have not here the question of the responsibility, be it moral or otherwise, of the owner of an automobile, who has placed it in the hands of irresponsible per

sons to use."

No, and we have not the question of such a permission creating an appearance of an agency limited by private instructions.

But this was held differently in Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26