77 



on the necessities of using water and not on their statutes. The 

 necessity exists regardless of State lines, and therefore the rights 

 should be protected regardless of State lines. 



PROTECTION OF RIGHTS IN A LOWER STATE AGAINST DIVER- 

 SIONS IN AN UPPER STATE. 



In the case of Cline v. Stock, cited above, it was contended by the 

 Nebraska ditch owners that the suit was an attack upon the sover- 

 eignty of Nebraska, and that the Kansas mill owner, being an appro- 

 priator outside the State, had no rights in the stream which the 

 legislature of Nebraska must respect or might not authorize Nel)raska 

 citizens to disregard. The supreme court decided against this conten- 

 tion. The case was remanded to the lower court for a determination 

 of the rights. In this case the Nebraska court declares that the rights 

 of an appropriator in the lower State must be protected by the courts 

 of Nebraska. 



The same question is treated exhaustively by the supreme court of 

 "Wyoming in the case of Willey v. Decker." In that case the AVyo- 

 ming court, after declaring that rights by appropriation are good 

 regardless of State lines, proceeds to consider the remedies which are 

 available to the appropriator in the lower State. The stream in 

 question rises in Montana and flows into Wyoming, but one of the 

 ditches in contention diverts water in Wyoming for supplying lands 

 in both AVyoming and ^Montana. In the one case, therefore, the ques- 

 tion of the power of Wyoming courts to protect rights in Wyoming 

 against diversions in Montana and rights in Montana against diver- 

 sions in Wyoming is presented. On the question of the jurisdiction 

 of the Wyoming courts to protect appropriators in Wyoming against 

 diversions in Montana, after citing a long list of authorities, the court 

 says: 



On principle and authority, therefore, we think there can be no doubt of the 

 jurisdiction of the district court [Sheridan County, Wyo.] to render a decree 

 restraining defendants Denimon from diverting the waters of the stream in 

 Montana to such an extent as to deprive those plaintiffs whose hinds are situ- 

 ated in this State [Wyoming] of the water to which they are found to be entitled 

 by priority of appropriation. 



As to the question of the power of the Wyoming court to protect 



appropriators in Montana against diversions in AVyoming, the court 



says : 



The rights of plaintiffs Willey and Ellison (whose lands are located in 

 Montana), therefore, if they be found entitled by priority of appropriation, 

 upon the facts, to the use of water as against any appropriation of defendants, 

 include the right to have the water of the stream flow down to the head gate 



a 73 Pac, 210. 



