SOME RECENT DECISIONS RELATIVE TO 

 WATER RIGHTS. 



BY CLESSON S. KINNEY, OF THE SALT LAKE CITY BAR. 



IN the case of Moyer vs. Preston, 44 

 Pac. Rep., 845, the Supreme Court of 

 Wyoming held : That the common law doc- 

 trine of the rights of riparian owners to 

 the waters of natural streams being inap- 

 plicable to the requirement of the land 

 owners of Wyoming, was not in force in 

 that state. And further, that Section 1317, 

 providing that persons owning land in Wy- 

 oming bounded on or in the neighborhood 

 of a stream shall be entitled to the use of 

 the water of the stream for the purpose of 

 irrigation, does not entitle such owners to 

 claim the water of the stream as riparian 

 owners as against prior appropriators. 



In the same case as above, the court 

 held: That the owner of land on which 

 was situated a spring, the waters of which 

 were tributary to a stream flowing through 

 the land, worke \ several days in 1885 

 clearing out that spring and facilitating 

 the flow of the water to the stream, and in 

 1886 again worked one day in clearing the 

 spring, with the intention of appropriating 

 the waters for irrigation, no further work 

 of appropriation being done until 1887, 

 was not an appropriation of the water as 

 against a person prosecuting his work of 

 appropriation in 1886. 



CLAIM OF APPROPRIATION REASONABLE DILI- 

 GENCE USER. 



In the case of the Nevada Ditch Com- 

 pany vs. Bennett, 45 Pac. Rep., 472, de- 

 cided by the Supreme Court of Oregon, 

 the facts were KB follows: In the early 

 summer of 1881 persons claiming an ap- 

 propriation of water from a public stream 

 posted a notice at the head of the proposed 

 ditch, as required by local custom, stating 

 the amount of water claimed, the purposes 

 for which it was to be applied, and the 

 route and terminals. Work was begun 

 shortly afterward, and a dam was built 

 and a diversion made for the purpose of 

 aiding in the excavation. The first sec- 

 tion, two miles long, was completed in the 

 spring of 1882. During 1882 the ground 



130 



was cleared for the excavation of the second 

 section to the further terminal. In the 

 spring of 1883 the work was prosecuted 

 till the irrigation season, when it was 

 stopped to permit the use of water through 

 the completed portion. It was resumed 

 in the fall, and continued until the com- 

 pletion of the second section, in the spring 

 of 1884, and during that year water was 

 run through the full length of the two 

 sections, a distance of about nine miles, 

 and used for irrigation purposes. 



The action was one brought by the plain- 

 tiff above named to determine the quantity 

 and priority of plaintiff's appropriation of 

 water from the stream, and to restrain de- 

 fendants from interfering with its use. It 

 was held by the Supreme Court that the 

 plaintiffs had exercised due and reasonable 

 diligence in the prosecution of the work, 

 and that in such a case the appropriation 

 dates back to the first steps taken in the 

 construction of the ditch. 



It was also held that a claim to a water 

 right ripens into a valid appropriation 

 only when there is an actual user for a 

 beneficial purpose, and that the claimant 

 is entitled to a reasonable time, after he 

 has diverted and carried the water to the 

 place of use, in which to make the actual 

 application to the contemplated useful pur- 

 pose, using reasonable diligence under the 

 circumstances of the case. 



TRANSFER OF CLAIM. 



In the case last cited it was also held 

 that where a person who initiated the ap- 

 propriation, but has not yet completed it, 

 transfers the possessory title to which the 

 water right was appurtenant, his successor 

 can complete the appropriation. 



And also that the bona fide intention 

 which is required of the appropriator to 

 apply the water to some useful purpose, 

 may comprehend a use to be made by or 

 through another person, and upon lands 

 and possessions other than those of the 

 appropriator. 



