84 



it has been held that, as against a subsequent appropriator, a senior appropriator 

 can not give the water he does not use to another for a certain period, who other- 

 wise would liave no right to use it. (Manning v. Fife (Utah), 54 Pac, 113.) 

 So far as we are informed, however, every case in which that or a simihir prin- 

 ciple has been decided admits that the water right may be sold and conveyed 

 separate from the land, provided other appropriators are not injuriously affected 

 by such sale. 



An individual appropriator of water for irrigation secures no surplus water ; 

 hence he has no surplus which he can either sell or give to another, as against 

 subsequent appropriations. His appropriation, and therefore his water right 

 dependent thereon, is at all times limited, within the maximum of his appropria- 

 tion, to the quantity capable of beneficial use and actually so used. If during 

 any period he does not require the use of the water, it falls during that period 

 to the subsequent appropriator who does need the same and can beneficially use 

 it. What the ajjpropriator may sell is his water right. That is all he has to sell. 

 That is all that would pass by deed of the land as an appurtenance. The water 

 in the stream is not his property, but his right to use that water, based upon his 

 prior appropriation for beneficial purposes, is a property right, and, as such, is 

 capable of transfer. The only limitation upon the right of sale of a water right 

 separate from the land to which it was first applied, and to which it has become 

 appurtenant, laid down by any of the authorities, is that it shall not injuriously 

 affect the rights of other appropriators. In other words, the burden upon the 

 use must not be enlarged beyond that which rested upon it under the original 

 appropriation, and while in the hands of the original appropriator as he was 

 entitled to and did use it. This principle is the necessary result of the fact that 

 the only property in the water owned by the appropriator is a right to use it as 

 measured by his appropriation. 



NEBRASKA. 



The Territory of Nebraska adopted '' so much of the common law 

 of Enghind as is applicable and not inconsistent with tlie Constitntion 

 of the United States, with the organic law of this Territory, or Avith 

 any law passed or to be passed by the legislature." This left the ques- 

 tion as to Avhether the Territory adopted the common-law rule as to 

 riparian rights unsettled and depending on the applicability of the 

 rule. This question was not finally decided until the rendering of 

 the decree in Crawford Company v. Hathaway ^ in 1903. The court 

 held that the rule was adopted and remained in force until abrogated 

 by statute. 



The first legislation of the State referring to irrigation was the 

 act of 1877, which extended to irrigation canals the provisions of 

 the laws relating to internal improvements. This empowered canal 

 companies to issue bonds and condemn rights of way for canals. It 

 made no mention of the right to take water from streams to fill 

 these canals, and the court held that this law did not abrogate the 

 rule as to riparian rights. Consequently, whatever rights were 

 acquired rested on custom rather than legislation and were subject 

 to riparian rights previously acquired. 



93 N. W., 791. 



