THE RIGHT TO THE USE OF WATER, 



BY JAMES A. KERR. 



IT is an elementary principle of law that air, light and 

 water are the common property of all mankind ; 

 that is, belong to no one in particular, but to the pub- 

 lic at large. No man can legally secure a monopoly 

 of either in any given locality or district; neither can 

 he, by purchase or otherwise, acquire a proprietary 

 right in either. The right to the use is the only right 

 that can be acquired, and this is not a proprietary 

 right, but simply an easement. 



The only method in which any private interest can 

 be secured in either air, light or water is by grant of 

 the sovereign ; by long use, which presupposes a 

 grant ; or by statute. In this country, private inter- 

 est in either is secured only by act of Congress, by 

 statutes of the various state legislatures, or by pre- 

 scription. 



While the use of running water may belong to a 

 particular individual, the thing itself the cerfas of 

 the water can never be appropriated. The right 

 to the use of the water is restricted to the reasonable 

 wants of the individual or company, and is held sub- 

 ject to the great fundamental principle of "not inter- 

 fering with the rights of others." 



In the arid region, water may be filed upon and ap- 

 propriated for a beneficial public use, and not for a 

 purely private purpose ; that is, the persons or com- 

 pany filing upon and appropriating a certain quantity 

 of water acquire a right to the public beneficial use 

 of the water filed upon, and appropriated to the ex- 

 clusion of all others, in return for certain public 

 benefits conferred. But the rights thus acquired, un- 

 der statute, are merely an easement in the use of 

 water, and not an ownership thereof. Persons thus 

 filing upon and appropriating water are entitled to 

 its use for a public beneficial purpose, but do not ob- 

 tain a private ownership thereof ' they cannot exer- 

 cise any proprietary right or power over the water it- 

 self. 



Irrigation canal companies differ in this respect 

 from many other corporations carrying with them a 

 public beneficial use, such as railroad companies, for 

 instance. The reason why canal companies differ 

 from railroads in this respect is because of the 

 difference in the nature of the substances or objects 

 with which they deal. Railroads deal mainly with 

 land, which is subject to private ownership and con- 

 trol, and they secure either an easement in the use of 

 the land, or the title to the land itself by condemna- 

 tion under the power of eminent domain ; while canal 

 companies deal and have to do principally with water, 

 which is not subject to private ownership and con- 



trol. But even land cannot be taken by condemnation 

 under the power of eminent domain or otherwise for 

 a purely private purpose: that is, >for a purpose that 

 does not carry with it a public beneficial use. Where 

 the public at large has not some interest in the use to 

 be made of the land there can be no condemnation 

 thereof. Thus, a man cannot condemn and take lands 

 of another for his own private use, as for a farm, or 

 residence grounds, or a hotel site, or a private park, 

 although the general public may be interested that 

 he shall have a farm to till or a house to live in, so 

 that he may not become a public charge, or may be 

 interested in private parks and hotels, becaiise these 

 are institutions purely for Private pleasure and gain ; 

 but he may condemn and take the land for a public 

 toll road, a public toll canal, or the like, or even for a 

 private way. 



So water cannot be appropriated and taken for 

 any use which is purely private, and does not 

 carry with it any public beneficial use; but it may be 

 appropriated for any public beneficial use, although 

 auxiliary to a private enterprise and private profit. 

 Thus the use of water may be appropriated for manu- 

 facturing purposes as to run a sawmill, a gristmill, a 

 woolen mill and the like for although these busi- 

 nesses are purely private and conducted for private 

 gain, yet there is a public beneficial use attached to 

 them, because the public at large need and must have 

 lumber wherewith to build houses, flour out of which 

 to make bread, and fabrics from which to manufacture 

 clothes. And water may be appropriated by a farmer 

 for domestic use and for watering stock, although for 

 private convenience and gain,; notwithstanding the 

 fact that such use consumes the water, for the reason 

 that there is a public beneficial use attached ; but he 

 may not file upon and appropriate water for the pur- 

 pose of hoarding its use and withdrawing that use 

 from the general public, the same as a miser hoards 

 up and withdraws money from the public and from 

 general circulation. 



Where persons or a Company appropriate water in 

 the arid region under the statute and construct a 

 ditch for carrying the water appropriated, and sup- 

 plying it to the lands through which the ditch 

 passes, they take on the nature of if they do not 

 become common carriers, 3 and owe certain duties to 

 the public, among which is the duty of supplying 

 water to any adjacent land owner who may desire it, 

 whenever there is a surplus of water flowing in the 

 canal, the beneficial use of which is not already dis- 

 posed of to some one owning land along the ditch, 



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