86 



it or along its borders." Its extent can not in any event exceed the area ac- 

 qxiired l)y a single entry or purchase from the Government, and the court was 

 strongly inclined to hold that such area should be restricted to the smallest 

 subdivision of a section — that is, 40 a'^-es — or, in case of irregular tracts, a 

 designated, nuniltcrcd lot in the Government survey, bordering on the stream. 

 " This is not to be taken, however, as meaning that every rii)arian owner may 

 claim the benefit of the stream for the purposes of a tract of that size in every 

 case. It is to be taken as a limitation of the reasonable use permitted by law 

 rather than as defining it. In case the size of the stream, the amount of water 

 therein, and the number of ri])arian owners who may make use thereof are 

 such that the irrigation of Ti acres, for example, would be an unreasonable 

 use, the riparian owner would not be permitted to use water to that extent 

 in derogation of rights of other riparian owners, and in consequence could not 

 claim damages against an appropriator on that basis. (McCook Irrigation and 

 Water Power Company r. ("rews. 07 N. W. ) 



For infringement upon his rights the riparian owner can not enjoin an irri- 

 gation enterprise by an upper appropriator, nor can he do so even though his 

 damages for injury to bis riparian rights have not been paid. His only 

 remedy is to sue the irrigator for damages. The mere fact that he is deprived 

 of the full flow of the stream adjacent to his land would furnish no l)asis for 

 such damages. " [Merely diminishing the volume of water in the stream would 

 not deprive the owner of property for which he could lay claim to a pecuniary 

 compensation." In order to entitle him to comijensation he must suffer an 

 actual loss or injury to his riparian rights as alxjve defined, which will mate- 

 rially dejtrcciate the value of the land to which such rights are attached. 



One phase of the question of riparian rights was considered, but not decided, 

 hi Crawford v. Hathaway, which is of especial importance in considering the 

 I'latte rivers. The court states that " as to those streams of water flowing 

 through the State which may lie classed as interstate rivers, and along the 

 banks of which meander lines have been run by the (government in its survey 

 of public lands, the question is left open as to whether or not the waters of 

 such streams may not be treated as waters of navigable rivers and to which 

 riparian rights of an adjoining landowner would not attach as against the right 

 of the public to use the waters thereof t»y its appropriations and application 

 to beneficial purposes." The Platte River is essentially an interstate river. 

 Both it and its branches — the North Phitte and the South Platte — are meandered 

 streams, and should the further decisions of the court affirm the al)ove doc- 

 trine, to which Chief Justice Holcomb seemed inclined, the question of riparian 

 rights would be entirely removed from any controversies over water rights 

 from the Plattes. 



Regarding water rights acquired by apiDropriation and u:-e prior to 

 its passage, the laAv of 1889 provides that the owners of ditches 

 should be held to have rights to the capacities of their works, but not 

 exceeding the amounts claimed, and that the place of use might be 

 changed if others were not injured by the change. Under this law, 

 then, the water-right holder had a right to a fixed quantity, which 

 was not attached to the land, since he could change the place of use 

 and sell the water apart from the land or sell the surplus not needed 

 for his own land. The only limitation was that it must be put to 

 beneficial use and kept in use or the right would lapse. 



Under the law of 1895 rights are acquired, as in Wyoming, by 



