Water Rights in the Western States: The Law of Appropriation of Water as Applied Alone in Some Jurisdictions, and as Applied Together with the Common Law of Riparian Rights in Others. Federal and California Statutes in Full, with Digest of Statutes of Arizona, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming, Alaska, Hawaii, and Philippine Islands. Forms

Samuel Charles Wiel

Bancroft-Whitney, 1908 - Riparian rights - 974 pages

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Title Page

Table of Contents

Index

HISTORICAL REVIEW A ORIGIN OF THE DOCTRINE OF APPROPRIATION 1 California before the arrival of pioneers	1

Result of Lux v Haggin 22 Riparian rights upheld in eleven States and Territories 23 Riparian rights rejected in seven States and Territories 24 In th...	2

Mexican	4

Customs of miners	6

The customs and the court	8

Irwin v Phillips	9

B DEVELOPMENT OF THE DOCTRINE 6 Irwin v Phillips followed	13

Was this new rule to be made to conform to the common law? 8 Was this judicial legislation?	15

Acts causing no present damage	319

Acts causing neither present nor prospective damage	320

320a SameAppropriation of surplus 321 SameDamage implied by	321

Same Storm waters	322

Same	323

Declaratory decree	324

Forms of injury	325

Pollution B PROCEDURE	326

How far applicable to other pursuits than mining?	18

Extension beyond California	20

EARLY LEGISLATION 11 Congress and the public domain 12 Federal statutes of 1866 and 1870	21

Comments on these Federal statutes	22

State legislation	27

THE CONFLICT OVER RIPARIAN RIGHTS 15 Private title to land and new industries	28

The law and irrigation	29

Same	31

Riparian rights before Lux v Haggin	35

Irrigation codes	48

LOSS OF RIGHT	49

Effect of this legislation upon riparian rights	50

Later Federal legislation	52

National Irrigation	54

Water users associations 30 Irrigation districts	55

Statement of the doctrine of appropriation	56

RIGHTS OF CONSUMERS FROM CORPORATIONS AS AP PROPRIATORS	58

Same	59

Appropriation as a grant under this system	64

B COLORADO DOCTRINE 34 United States or StateColorado doctrine 35 Statement of the Colorado doctrine	66

Water the property of the public or of the State	72

Comments on the Colorado view	75

Replies to these objections	80

Same	83

Views of the supreme court of the United States	84

Same	89

Some inconsistencies	92

Conclusion	93

CHAPTER III	96

Priority governs	97

SameWhole stream 46 SameIn times of deficiency	98

Successive appropriations	99

Temporary appropriations	103

No partiality	104

Preferences and prorating	105

SameProrating	108

B RELATION TO RIPARIAN PROPRIETORS 53 To subsequent settlers	109

To prior settlers	111

Same 56 Prior settlers who hold the land in	115

Prior settlers before patent	116

Conclusions	118

CHARACTERISTICS 59 The right is usufructuary	119

No property in the corpus	120

No property in the channel	121

The right is exclusive	122

Independent of ownership or possession of land	124

Distinguished from right to a ditch	126

Real estate	127

Historically based on possession 67 Conditional 68 An incorporeal hereditament	128

Definition	129

CHAPTER IV	130

Use of existing ditches	132

Riparian owners	133

Corporations	134

Origin of the doctrine	135

Effect of relation	136

Government reservations	137

Same	138

CHAPTER V	139

State lands 77 Presumption that lands are public	141

With consent of the landowner or by the landowner himself or against strangers to the landowner	151

By condemnation 88 Review of decisions	153

Water in artificial watercourse is personalty 154a Same 154b Same	154

SameAs affecting water supply contracts	155

155a SameAs affecting development of water 156 The law of natural waters does not apply to water in artificial water course	156

SameDrainage water	157

SameDrainage into a natural stream	158

Recapitulation	159

89a Government ditches on private land	160

CHAPTER VI	161

Repair of ditches	162

Damage from breaking ditches	163

Same CHAPTER X	164

SameDefinition	165

Surface tributaries	166

Navigable streams	167

Interstate streams	168

Reason of these rules	169

What constitutes waste	170

Future needs	171

Same	172

Same	173

98a Same 99 SameKansas v Colorado	174

Artificial watercourses 101 Diffused surface water	175

Lakes and ponds	177

Swamp lands	178

CHAPTER VII	180

139a Supplementary proceedings	181

Parties D PROCEDURE	195

Unrepresented interests	196

Jurisdiction	197

Motive	198

Evidence of intention 123 Intention alone not enough E DILIGENCE 124 Necessity for diligence	199

What constitutes diligence	201

Delay during legal proceedings	202

Failure to use diligence F COMPLETION OF CONSTRUCTION WORK 128 Completion of work	203

What constitutes completion 130 Means of diversion 131 Diversion alone	204

CHAPTER VIII	216

CHAPTER IX	229

The Colorado rule	231

Necessity for public	256

Necessity for hearing and compensation	257

What is a public	258

Private enterprise as public	259

Clark v Nash	260

Same	261

In California	262

Statement of the rule of Clark v Nash	263

Procedure	264

A question of procedure	265

CHAPTER I	266

Same	267

But one may have a right to take itA usufructuary right	273

When taken the water is private property	274

These principles developed B ACCESS TO THE STREAM	275

Duty of water	276

Measurement of water	277

Same C CUJUS EST SOLUM MAXIM NOT APPLIED	278

Summary	279

CHAPTER XI	280

No injury to others	282

B CHANGE OF MEANS OF USE 179 Change of means of use 180 Changes in ditches	285

CHANGE OF POINT OF DIVERSION 181 Point of diversion may be changed	288

Statutory procedure	289

Same	290

CHANGE OF PLACE OF USE 184 Change of place of use 185 Statutory procedure	291

Change on sale of water right	294

Natural uses Use to support life	295

E CHANGE OF PURPOSE OF	296

Change of purpose	297

CHAPTER XII	298

Priority	305

SameWhere the damage is only prospective	317

SameDeclaratory decree	318

Parties	327

Injunction	328

Bills to quiet title settling rights or for apportionment	329

Same	330

Same	331

CHAPTER XIII	332

Contracts continued	334

Assignment	335

Conveyances B CONVEYANCES 222 Formalities on transfer	337

Operation of conveyance	338

Sale in parts	339

Appurtenance C APPURTENANCE 226 Appurtenance continued	340

Appurtenance continued	343

PAROL SALE	344

Parol sale	345

A ABANDONMENT	349

Abandonment is voluntary and a question of fact	350

Nonuser	354

Same	355

Discharged waste	356

Recapture	360

Parol sale or faulty deed 236 Failure of diligence in construction work	363

B FORFEITURE	364

Failure to comply with statute in appropriating 238 Smith v Hawkins	365

Forfeiture under statutes	367

ADVERSE USE 240 In general	369

Effect of adverse	371

Extent	372

Essentials	373

Continuous	374

Exclusive uninterrupted	375

Open notorious	376

Claim of rightColor of title	377

Hostile to ownerPermission 249 Invasion of rightChance to prevent	379

Same 251 Payment of taxes	381

Against the United States 253 Conclusion	382

ESTOPPEL 254 Elements of estoppel in pais	383

Estoppel by silence	384

Preparatory steps	393

Procedure	394

Certificates	395

Constitutionality	396

How far exclusive	397

Colorado method	398

Preparatory steps	399

Procedure	400

Decree and certificate	401

Constitutionality	402

Nature of the proceedings	403

Carrier or consumer	404

Riparian rights under the California doctrine	405

What corporations are in public service	409

Mutual companies B DUTIES AS QUASI PUBLIC SERVANTS	410

The common	411

CHAPTER II	414

The civil	415

Origin of the Colorado rule	424

Expressions of the rule	425

Results of the rulePriorities	426

Same	427

SameParties to actions	428

Same	429

Results	437

CHAPTER III	438

Natural right	439

Part and parcel of riparian land	440

Usufructuary	443

CHAPTER IV	449

What watersWatercourses 290 Navigable streams	450

Interstate streams	451

Standing waterLakesPonds 293 Percolating water	452

Reasonable use for irrigation	461

Same	464

Apportionment	467

Manner of use 302 Return of surplus	470

CHAPTER VI	472

Use confined to riparian land	473

What is riparian landMust touch the stream	474

SameReceding from the streamLand title 306 Same	476

Lux v Haggin	478

SameWithin the watershed	479

Bounded by reasonableness in each case	481

Nonriparian use by both parties 311 Conclusions as to riparian land	484

311a Indefiniteness of the common	485

CHAPTER VII	487

Same 315 Damage to a reasonable degree not wrongful 316 Damage in excess of reasonable degree	495

Pleading 334 Judgment or decree	508

CHAPTER IX	515

No abandonment	516

Avulsion 337 Adverse	517

Same	524

Same	526

SameIn California	527

CHAPTER X	529

Beneficial	530

Preference of domestic use 350 Equality vs Priority 351 In California	531

PART III	533

Percolations tributary to watercourses	542

Underground lakes or artesian belts	545

A ENGLISH RULE 358 Diffused underground water 359 The English rule B KATZ v WALKINSHAW 360 The California cases 361 Katz v Walk...	548

Same	571

CHAPTER III	572

Same	576

Reasonableness as a question of fitness of purpose	577

Same	579

SameDrainage	580

As affected by degree of damage	582

Importance in mining regions	583

378a Miscellaneous rulings	585

Underground water	586

PERCOLATING WATER CONTINUED 379 Difficulty of application of the rule 380 New rule compared to riparian rights 381 New rule and the l...	587

Same	590

PART IV	591

383 Legislation	592

Same 385 Supervision of State	593

Intermediate subdivisions 387 Primary subdivisions	594

Form of decree 407 Effect of decree 408 Comments of Department of Agriculture	605

Constitutional declaration C PUBLIC DUTIES 413 Must serve all the public compulsory service 414 Without unreasonable conditions 415 With ad...	621

CHAPTER II	633

Contracts fixing rates	635

Contracts granting easements	637

Purpose	644

California 431 Colorado Idaho Kansas Montana Nebraska Nevada Oregon Texas Utah Washington 432 Comments	647

CHAPTER V	654

Articles of incorporation and bylaws	657

Stock subscriptions and certificates	658

Assessments 439 Private holdingsExcess lands	659

Contract with Secretary of Interior 441 Completion of organization	661

Water right applications	662

CHAPTER VI	663

Police regulations	927

Actions by and against officials 390 Comments of Department of Agriculture 391 Water Commissioners and State Engineer in California	968

Copyright

Other editions - View all

Water Rights in the Western States: The Law of Appropriation of Water as ...
Samuel Charles Wiel
Full view - 1908

Water Rights in the Western States: The Law of Appropriation of Water as ...
Samuel Charles Wiel
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Common terms and phrases

abandonment acquired adverse apply appro appropriation of water appurtenance arid Ariz beneficial California doctrine canal cited claimants Colo Colorado doctrine common law constitution corpus court says Creek damage decisions defendant ditch easement eminent domain estoppel fact Farmers Federal grant Haggin held Idaho infra injunction injury irrigation Kidd Lake landowner Larimer law of appropriation law of riparian miners Mining Claims Mont Montana natural stream Nebraska Nevada non-user Oregon ownership parties plaintiff point of diversion Pomeroy on Riparian possession priation principle prior appropriation priority private land propriation public domain public lands purpose question quiet title reasonable Reclamation Dist recognized riparian land riparian owner riparian proprietor riparian rights River rule settlers Smith South Dakota Stats statutes supra supreme court tion United usufruct usufructuary Utah Wash water right Watsonville Wyoming

Bibliographic information

Title	Water Rights in the Western States: The Law of Appropriation of Water as Applied Alone in Some Jurisdictions, and as Applied Together with the Common Law of Riparian Rights in Others. Federal and California Statutes in Full, with Digest of Statutes of Arizona, Colorado, Idaho, Kansas, Montana ...
Author	Samuel Charles Wiel
Edition	2
Publisher	Bancroft-Whitney, 1908
Original from	The Ohio State University
Digitized	5 Mar 2015
Length	974 pages

Export Citation	BiBTeX EndNote RefMan

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