76 



and if the settlers liisber up on the stream in another State, whose appropria- 

 tions are subseciuent, divert any of the waters of the stream which have been 

 so first appropriated, then the courts of the latter State will protect the tirst 

 settler in his rights. 



The United States court for the district of Montana, in Howell v. 

 Johnson," held : 



Appropriators of water from interstate streams are entitled to protection 

 against injury l)y later appropriators, in accordance with the doctrine of prior 

 appropriation, regardless of State lines. 



The same principle is announced by the United States court for the 

 district of Colorado, in Hoge v. Eaton,'' in which the court held : 



The right to divert running waters for irrigating lands in an arid country is 

 not controlled or affected hj political divisions. It is the same in all States 

 through which the stream so diverted may pass. 



An appropriation of water in the State of Wyoming from a stream which 

 I'ises in Colorado for irrigating lands in Wyoming is valid as against a subse- 

 quent appropriation in Colorado from the 'same stream for irrigating lauds in 

 Colorado. 



There are, so far as the writer has been able to find, no decisions 

 denying the rights of appropriators in the lower State protection 

 against injury by later appropriators in the upj^er State, while the 

 decisions quoted above are all in favor of such protection. 



The supreme court of Colorado has held repeatedly that the right 

 to divert water from the streams of that State arises from necessity, 

 not from the statutes of the State, and would still exist if the statutes 

 were repealed.'' 



The supreme court of Nebraska, in Crawford v. Hathaway,'^ is 

 committed to this same doctrine as regards the right in Nebraska. 



In our view of the subject, rights of appropriators of water, who have applied 

 the same to the soil for agricultural purposes by means of irrigating canals, ante- 

 dates the passage of either of the irrigation acts of the legislature of which we 

 have just made mention. This right has grown out of the necessities of the 

 case, and has been sanctioned by the acts of Congress and recognized by the 

 laws of the State. 



Other States are also committed to the same doctrine as to the 

 origin of the right of appropriation. The Wyoming court, in Moyer 

 V. Preston,'^ says : 



Irrigation and reclamation can not be accomplished with any degree of success 

 or permanency without the right to divert and appropriate water of the natural 

 streams for that purpose and the security accorded to that right. The impera- 

 tive and growing necessity of our condition in this respect alone * * * com- 

 pel the i-ecognition rather than the adoption of the law of prior appropriation. 



It is thus seen that the generally accepted doctrine in the three 

 States through which the Platte rivers flow is that rights are based 



"89 Fed., 556. <J93 N. W., 781. 



& 135 Fed., 411. e 44 Pac, 845. 



c Yunkers v. Nichols, 1 Colo., 570. 



