75 



appearing in the adjudication has its point of diversion in Colorado, 

 but extends beyond the boundary line and covers land in both Colo- 

 rado and Xew Mexico. In the adjudication the ditch was denied 

 any right for the land in New Mexico. The supreme court affirmed 

 the decision on the ground that the lower court, under the special 

 statute, had no jurisdiction to award any right for land outside the 

 State. The court expressly disclaimed any consideration of the ques- 

 tion whether the right for land in New Mexico would be protected 

 in another action in the Colorado courts against subsequent appro- 

 jjriators in Colorado. 



The question of the relation of rights on interstate streams was 

 before the supreme court of Nebraska in Cline i\ Stock.** Irrigation 

 ditches in Nebraska had so used up the waters of the Republican 

 River as to seriously interfere with its use for power by a Kansas 

 mill owner who had used the water for power long prior to the con- 

 struction of the irrigation ditches. It was contended by the defend- 

 ants that the suit was an attack upon the sovereignty of Nebraska, 

 and that the Kansas mill owner, being an appropriator outside the 

 State, had no rights on the stream which the legislature of Nebraska 

 must respect or might not authorize Nebraska citizens to disregard. 

 In deciding against this contention the supreme court said : 



It would .seeui that the fatt of the phiiutiff's residence beyond the border of 

 this State, and that his mill is located there, ought not to deprive him <jf any 

 rights within the laws of our State given to a lower a])i)ropriator. Any attempt 

 of our legislature to discriminate against him as compared with resident mill 

 owners would be promptly declared unconstitutional by the Federal courts. 

 It seems plain that the plaintiffs should be allowed the same standing as one 

 of our own citizens with the mill on this side of the State line. 



The same question has been considered by the supreme courts of 



AVyoming and Utah and by the United States courts for the district 



of Montana and Colorado. The Wyoming court held, in Willey i\ 



Decker : ^ 



Under whatever system the right to appropriate water for irrigation is 

 recognized, the natural and logical result of the doctrine would seem to be, at 

 least in the case of interstate streams, and in the absence of contrary consti- 

 tutional and statutory provisions, that the separation of the lands capable <,f 

 irrigation from such streams by State lines is of no conseciuence if we are to 

 consider merely the general principles of the doctrine and the reasons that 

 called it into existence. The same necessity applies to the lauds on either 

 side of the line, and the water naturally flows in the channel of the stream in 

 disregard of such line above as well as below it. 



The Utah supreme court, in Conant r. Deep Creek Irrigation Com- 

 pany,*^ held: 



It is a recognized rule of law that a person who has appropriated water to a 

 certain point in a stream is entitled to have so much of the waters of said 

 stream as he has appropriated flow down to him to the point of his diversion, 



a 98 N. W., 454. (< 73 Pac, 210. c 66 Pac, 188. 



