A CASE WHERE AN INJUNCTION DID NOT LIE. 



201 



by the plaintiff. Of course the supreme 

 court of that State reversed the judgment 

 below, and Mr. Justice Huston, in render- 

 ing the opinion, said: 



"We then have this anomalous condi- 

 tion of affairs: A creek or stream flowing 

 100 inches of water, with appropriations of 

 that water to the amount of 800 inches, in 

 addition to the prior appropriation of the 

 plaintiff of all the water of the creek and 

 its tributaries. To the ordinary mind this 

 might, and perhaps does, present a some- 

 what difficult problem for judicial solu- 

 tion, unaided by the statutes, but the 

 learned district judge found no difficulty 

 whatever in reaching a conclusion as 

 unique as it is unprecedented. We say 

 unprecedented, because this question, un- 

 der statutes identical with that of Idaho, 

 has been decided so often in favor of the 

 prior appropriator. th \t it has been gener- 

 ally considered, by both professionals and 

 profanes, as a settled question ; as, for in- 

 stance, the question has been decided up 

 to 1889, twice by the Supreme Court of 

 the United States, seventeen times by the 

 supreme court of California, five times by 

 the supreme court of Colorado, six times 

 by the supreme court of Nevada, twice by 

 the supreme court of Montana, once by 

 the supreme court of New Mexico, twice 

 by the supreme court of Utah, once by the 

 supreme court of Oregon and repeatedly 

 by the supreme court of Idaho; in fact, the 

 decision of the learned judge in this case 

 stands alone. We have been unable by 

 the most diligent search to find a prece- 

 dent or parallel for it. Heroically setting 

 aside the statute, the- decisions and the 

 evidence in the case, he assumes the role 

 of Jupiter Pluvius, and distributes the 

 waters of Gooseberry creek with a benefi- 

 cent recklessness which makes the most 

 successful efforts of all the rain wizards 

 shrink into insignificance, and which would 

 make the hearts of the ranchers on Goose- 

 berry dance with joy if only the judicial 

 decree could be supplemented with a little 



more moisture. The individual who causes 

 two blades of grass to grow where but one 

 grew before is held in highest emulation 

 as a benefactor of his race. How then, 

 shall we rank him, who, by judicial fiat 

 alone, can cause 800 inches of water to 

 run where Nature only put 100 inches? 

 We veil our faces, we bow our heads before 

 this assumption of judicial authority. 



"Evidently the court assumed that 

 Gooseberry creek was as inexhaustible as 

 the widow's crust, or else that its decree 

 possessed the potency of Moses' rod. All 

 the provisions of the statute in regard to 

 priority of right incident to priority of 

 appropriation are ignored, as are the 

 sources and volume of supply." 



From the rulings of these two district 

 judges in these cases it is evident that in 

 some parts of the West all do not under- 

 stand the arid region doctrine of the ap- 

 propriation of waters. The rights of the 

 first appropriator must be respected. But 

 water is too precious an article in this part 

 of the country to be permitted to run to 

 waste, or to prevent its use to its fullest 

 capacity. The great weight of modern 

 authorities hold that where a person has 

 diverted a certain portion of the waters of 

 a stream and permits a part of the water 

 so diverted to run to waste, or fails within 

 a reasonable time to use a certain portion 

 of the water for some beneficial use or pur- 

 pose, he can only hold that part of the 

 water diverted which has been actually 

 applied to some beneficial use, and his 

 priority extends only to the quantity so 

 used. Also the authorities hold that in 

 such a case there has been no appropria- 

 tion as to the water not used and which 

 ran to waste, but that that part might be 

 subsequently appropriated and held by 

 other parties, provided they took the prop- 

 er steps, and they, themselves, applied it 

 to some beneficial use or purpose. The 

 final test in all cases is, whether or not all 

 of the water diverted is actually applied to 

 some useful or beneficial purpose. 



