112 



water and its diversion and use. For fourteen years the board of 

 control ruled that approprations of water were limited to the uses 

 for which acquired. During this time the irrigation interests of the 

 State enjoyed a conspicuous freedom from controversy and litigation 

 over water rights, which Avas in marked contrast to the numerous 

 and costly controversies of all the surrounding States save Nebraska. 

 In 1901, however, this ruling was set aside by a decision of the 

 supreme court, which held that appropriations of water in Wyoming 

 are property rights which can be sold and by the sale separated from 

 any particular use.'' As this decision vitally affects rights to the 

 Platte and its tributaries in Wyoming and is, in addition, regarded 

 as establishing a dangerous extension of water ownership, a brief 

 statement of the underlying facts seems warranted. 



The litigation leading up to this decision grew out of a sale of a 

 prior appropriation on Little Horse Creek, in Avhich there was 

 sought to be conveyed a right to the use of 10 cubic feet of water per 

 second for one-half of the time. The attempted seller of this right 

 had received a certificate of appropriation from the board of control, 

 giving a right to water sufficient for the irrigation of 700 acres of 

 land, not at any time to exceed 10 cubic feet per second. The land 

 entitled to this water was named in the certificate of appropriation 

 and more definitely located on the maps of the State engineer's office. 

 As the use of Avater in irrigation is intermittent, the holder of this 

 prior right seldom used 10 cubic feet of water per second, and prior 

 to this sale when he did not use the full amount of his appropriation 

 the second appropriator took it. "When the second appropriator had 

 a surplus, it went to the third, but the third's periods of use were 

 infrequent, and to improve his position in the list of priorities he 

 bought the right to Xo. I's appropriation for half the time, thus 

 practically displacing priority No. 2. After the sale No. 3 called 

 on the water commissioner to turn the water alleged to have been 

 purchased where he directed, instead of giving it to No. 2, as would 

 have been done if the regidar order of priority of appropriation 

 had been followed. The water cojnmissioner, acting on the advice 

 of the State engineer, refused to recognize the sale as valid and liti- 

 gation followed, ending in the supreme court sustaining the transfer. 



The refusal of the water connnissioner to recognize the sale was 

 based on the folloAving objections to its validity: 



(1) That the original right Avas not for 10 cubic feet of Avater per 

 second, but for the Avater needed by a certain tract of land. 



(2) That there Avas no laAV authorizing the separation of this right 

 from that land. 



(3) That there was no measure for the right when separated from 

 the land. He could not tell hoAV much to deliver to the purchaser. 



Johnston r. Little Horse Creek Irrigating Company, 79 Pac, 22. 



