A NEW PRINCIPLE RELATIVE TO SUBTERRANEAN WATERS. 19 



supply. We are inclined to give these 

 statutes a much broader construction. In 

 our opinion, whenever the industry of the 

 pioneer has appropriated a source of water, 

 either on the surface of or under the 

 public lauds, he and his successors acquire 

 an easement and right to take and use such 

 water to the extent indicated by the origi- 

 nal appropriation, and that a private 

 owner who subsequently acquires the land 

 takes it burdeD3d with this easement, and 

 -we alf-o hold that this easement (Mm/es with 

 it such rights of ingress and egress as are 

 necessary to its proper enjoyment." 



So far we believe the opinion to be cor- 

 rect and founded upon the great principle 

 of priority of appropriation which under- 

 lies the system of water lights in the arid 

 portion of the United States. But, after 

 deciding that a person had a right to ap- 

 propriate the waters of a well, and also had 

 the right of ingress and egress over the 

 land to and from the well, the Court adds: 

 ''This right of appropriation is, of course, 

 subject to the rule of law which will per- 

 mit the owner to sink an adjoining well on 

 his own premises, although he should 

 thereby dry up that of the first appropria- 

 tor." 



The question of percolating waters is 

 one that is still undetermined in this 

 Western country. The courts have hereto- 

 fore held that subterranean waters running 

 through a known channel or defined course 

 are subject to appropriation, and that he 

 who is first in time has the superior right 

 to them. But in the above case the course 

 of the waters was unknown and unde- 

 fined, and the Court held that they were 

 subject to appropriation, but also held that 

 the appropriator's right to them might be 

 lost by the owner of the land simply dig- 

 ging another well by the side of the first, 

 and thereby draining the water from the 

 appropriator's well. It seems to us that 

 the opinion is inconsistent with itself. It 

 is also inconsistent with the great arid 

 region doctrine governing waters in this 

 Western country. Why a person should 

 be permitted to dig another well by the 

 side of that of the first appropriator and 

 drain the water from his well, any more 

 than a person should be permitted to con- 

 struct a later ditch above that of the first 

 appropriator and divert th^ waters of a 

 stream to the injury of the first Jippropria- 

 tor's rights, we are unable lo see. Cer- 



tainly, waters of a natural stream and 

 subterranean waters, whether flowing in 

 well defined or unknown courses, are both 

 natural sources of supply, and we think 

 that if the principle of priority is to 

 govern one it should certainly govern the 

 other. 



THE WEIGHT LAW. 



A great deal of interest is being mani- 

 fested throughout the Western States as to 

 whether the Supreme Court of the United 

 States will decide the Wright Law to be 

 constitutional or otherwise. Not only is 

 this interest manifested in the State of 

 California, from which State the case went 

 to the Supreme Court, but also through- 

 out other States of the West which have 

 adopted laws nearly similar to the one in 

 question, and also in those States where 

 legislation upon water rights is being 

 contemplated. 



The law in question has been held to be 

 constitutional by the Supreme Court of 

 California in a number of cases, but by 

 the United States Circuit Court, in which 

 Judge Ross presided, the law was held to 

 be unconstitutional in another case. An 

 effort has been made by which all of these 

 cases, involving the constitutionality of the 

 law, have been consolidated in the Su- 

 preme Court of the United States, and 

 will be heard at one time, some time dur- 

 ing the first part of the year. 



The principal questions in the case are, 

 was the property taken from the private 

 owners by means of assessment and pale 

 of the same with or without " due process 

 of law" and therefore in violation of the 

 fourteenth amendment of the Federal Con- 

 stitution, and, second, was or was not the 

 property so taken for a public use or pur- 

 pose? We are of the opinion that the 

 ruling of the Supreme Court of California 

 was correct in the premises. And regard- 

 ing the second point will say thiit there is 

 no such thing as drawing a clear and defi- 

 nite line as distinguishing between pur- 

 poses of a public and those of a private 

 nature. Public and private interests are 

 so commingled in many cases that it is 

 difficult to determine which predominates., 

 But when the Legislature has once de- 

 clared that a cei tain use is a public one, 

 as it did in the law in question, the courts, 

 as a general rule, will support it when not 

 satisfied that a gr^at wrong has been 

 committed; and, when there is any doubt 



