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an abandonment of this right, and others out the application of the water, the laws may take the water who will use it. This regarding water rights would not be in their would apply the same rule of use to the present unsettled and inharmonious conriparian claimant as any appropriator. dition. No good reason can be advanced why

At present the appropriators on our such a rule of use should not apply in both

streams, in many instances, have filed on cases. The appropriator and the riparian

more water than the stream can supply; claimant both, either directly or indirectly,

and under the constitution and statute claim acquired their rights to the use of the pub

the right to beneficially use it all. In oppolic waters through federal enactments, one

sition to this the bank owners under comrecognized by virtue of the custom of humid

mon law rules claim the right to have all of England and the other by a custom of all

said waters flow past their lands; and have arid regions the world over, and there is no

a right to restrain the diversion of said good reason why one should exercisem

waters to any lands beyond those owned by privilege not enjoyed by the other. In a

the bank proprietors. Mead says: "No comparatively recent casell the Supreme

one, whether an appropriator or a riparian Court of Washington have indicated their

proprietor, knows definitely how much waintention to follow such a principle. The

ter he is entitled to, nor how soon he may court says: “We think it comports with

have to defend his rights in a long and the general policy of the state to hold that

costly law suit." this statute contemplated the use by the Eminent Domain.-By statute one wishabutting owner of the water necessary for ing to acquire the water rights of a riparian his present needs and for those that accrue, owner for a public use may do so by taking as he in good faith proceeds with reason them under an eminent domain proceeding, able dispatch to construct the means for ap- but only such part of the water as the owner plying the water to his adjacent arid lands," is not now using for irrigation or as will water to be used within a reasonable time, not be needed by him in the future. Kinney say two years.

on Irrigation and Water Rights12 says:

"That the difficulties in the way of getting Dual System of Water Rights.—In those

the proper defendants in a suit to condemn states adhering to the common law rule of

riparian rights are practically prohibitive riparian rights and by statute providing for

against the bringing of such action, althe appropriation of water, as in Washing

though the abstract right to condemn such ton, we have dual systems of law, govern

property may be given by statute, and that, ing waters, which are antagonistic in prin

if possible, it would be a vastly expensive ciple, and consequently are usually clashing.

proceeding." One exists by virtue of a statute and the other through court decrees. These two | In Washington the condemner must first systems are antagonistic in their founda- pay for a right of way across riparian lands tion principles, and are therefore antago and then for the use of water in excess of nistic when it comes to their application. the riparian owner's present needs and any Had the government of the United States contemplated use that said owner may detaken as much pains in disposing of the sire to put the water to within a reasonable waters of the public domain in as uniform time. In other words, the bank owner is and systematic a manner as it did of the | presumed to have a right to the use of the public lands in the arid region, over which public waters of the state in excess of his these waters run, the greater portion of present and contemplated needs, and if anywhich lands are absolutely worthless with one else wants to use such excess he must

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go to the expense of buying it on a holdup purpose by any such person”; and in the basis or undertaking the herculean task of cases cited the courts have said "that the condemning it. And yet the rights which food waters were being used by the riparian the purchaser must buy or condemn in or- owners.” In Still v. Palouse Irrigation & der to obtain immunity from injunction are Power Co.15 the court says: “In this case recognized as of no general worth. For, in the respondents do not make use of the high assessing damages on unused riparian rights waters, and the greatest use and benefit to in Nebraska the courts have held that where their land comes from such use." This the riparian proprietors were possessed of leaves the riparian owner to sell his food the naked right to a reasonable use of the water rights, or not, as he likes, and at any waters of a stream, yet where such a right price he may see fit to ask or accept. Under is not coupled with an actual diversion or such conditions, men of ordinary business application of such waters to some bene- sagacity will not invest their money in ficial use, the measure of daniages for fu water right projects. Under such a rule of ture use, defeated by the taking, cannot be law the rights of all water users, acquired considered.18

by appropriation, and now put to a beneUnder the doctrine laid down in the Still

ficial use, are open to attack by any riparian

proprietor who may wish to hold up the casel4 and recently followed in a case in the Superior Court of Yakima County, every

water level in the stream so it may either

flood or "sub” his land. riparian owner on any stream in Washington not only has a right to the use of water Investments of Appropriators in Jeopfor domestic and irrigation purposes, but, as ardy.—The following quotation from the against the appropriator of water, has a brief of defendant's attorney in the Madera right to his method of use, however waste Canal Co. case is interesting. He said: ful that may be. Chandler says: “The conclusion to be drawn from these cases is that

"The interests involved in this suit are of the lower riparian owner may not only en- | such magnitude, not only as between the join the diversion of the natural flow, but parties themselves, but also to thousands of may also enjoin the storage of even the others, and the result reached so disastrous flood waters if such storage will result in s to the defendants, so destructive to the vast damages, either present or prospective." and beneficial improvements made by them

in good faith and in the belief that the same Rights to Store Water Cannot Be Ac- law as to those matters applied both to the quired by Condemnation.—Under the ri

state and government lands in California, parian doctrine it will be impossible to store

so disastrous to the people of a large part the flood waters of our streams for use upon of California, and so destructive of all those non-riparian lands unless the bank owners į great interests which have grown up under are bought off at their own prices. Under the irrigation system based upon the docour statute and the rulings of our courts, trine of appropriation to beneficial uses, the privilege of storing flood waters to be i that we firmly believe your honors will wish, used on other than riparian lands cannot be even if in the end you feel compelled to acquired by condemnation, because the stat- i adhere to the views already expressed, to do ute expressly says that the right to condemn so only after you have received all the light riparian rights "Is not intended in any man- / which the profession can give. No matter ner to allow water to be taken from any how onerous and pressing the duties which person, that is used by said person himself i devolve upon your honors, there is, we for irrigation, or that is needed for that submit, before you no question or business inquiry whether the decree shall stand ties of the people in the particular localities which condemns to absolute barrenness the where the cause of action arose, it has since thousands of acres of land reclaimed from its first announcement here invariably been the desert by the vast expenditures of the upheld in this state, excepting where it has defendants here and now a garden of pro- been subjected to a priority of a ductiveness and beauty, in obedience to the ation.” law of another country, based upon the cus

which can compare in public interest to the (13) McCook Irrigation Co. v. Crews, 70 Neb. ! 115. (14) 64 Wash. 606.

(15) 64 Wash. 606.

Considering the fact that the great bulk toms, and arising under conditions the most

of the water now diverted and used for irdiverse from ours; whether, in obedience to |

| rigation purposes in the state was acquired that law, a large part of this state, after a

under appropriation statutes, and that milprogress almost unparalleled and improve

lions of dollars have been invested in develments made at incalculable cost of labor and

oping such water rights, and that millions treasure, is to be condemned to return to

more have been invested by substantial citisterility and unproductiveness; whether, in

zens who live under such projects, there obedience to that law, the wheel of progress

would seem to be a legal and moral duty is to be turned back and the present pros

resting upon the state to remove the cloud perity of thousands changed into ruin and

from such titles, to define them, and to make poverty that a few men, who happen to own

them a matter of record. land on the banks below, may enjoy the pleasure of seeing the stream flow as it was

Water Right Litigation.—The history of accustomed to flow. Your honors will not, water rights in those states operating under we are sure, forget that this decree, if it is the common law of riparian rights is that of to stand, not only overthrows the progress endless litigation and delay in the developof the past, but puts a perpetual bar upon ment of their natural resources. the future progress and development."

In California, following the common law If the rule laid down in Miller and Lux rule, millions of dollars have been spent in v. Madera Canal Co.,16 supra, and followed

water litigation without settling the rights in Still v. Palouse Irrigation & Power Co.,17

of anybody except those directly parties to is the law then the extract from Mr. Ger

the litigation. “Under existing conditions ber's argument (though gloomy) is entirely

water rights in California cannot be settled applicable to present conditions.

until every claimant on each stream and

stream system has sued or has been sued by In the Still case18 the court says: "A ri

every other claimant thereon."19 Washparian owner, such as respondents are here ington, in adopting the riparian doctrine, shown to be, has a right to the natural flow

has placed every water title in the state in of the waters in their natural and accus the same jeopardy as those in California. tomed channels without diminution or alteration, subject only to such rights and use

All water rights in such states are open in every other riparian owner, a right that | to attack in the courts, and can never be is as much included in the ownership of the

defined and made definite until each claimland as the soil itself, and can no more be

| ant of a water right has sued every other interfered with by the act of others. And,

claimant on the stream or stream system, while the application of this doctrine has in

or has been sued by them. And even then some of the Western states sometimes been

there is now nothing but the bringing of denied, on the theory that the rules of the another suit to prevent the newcomer from common law respecting riparian owners

filing an appropriation and using the water were inapplicable to conditions and necessi- |

of the person having the right to it under

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the decree. (16) 155 Cal. 59.

(19) See Conservation Comraissioner Report of California, 1912.

(17) 64 Wash. 606. (18) Supra.

It is readily seen that the cost of such a park negligently ran down and injured the series of proceedings would be appalling,

plaintiff. He and the company were joined as

defendants. and even then could arrive at no final results until appropriation laws are amended

It was alleged in the complaint that, at the and riparian rights are defined as to quan

time and place of plaintiff's injury, Sobieski

was a servant of the Scott Company, and in the tity and method of use. O. L. WALLER.

course and scope of his employment, with full Pullman, Wash.

knowledge, permission and acquiescence of the company, was using the automobile in the performance of the purpose and uses for which it.

was intended and kept. MASTER AND SERVANT- LIMITING At the trial plaintiff called a witness by AGENCY.

whom he sought to prove that on August 8,

1917, in the course of a conversation with Scott MOGLE v. A. W. SCOTT Co. et al. concerning insurance of the automobile, Scott

said that Sobieski was given more privileges Supreme Court of Minnesota. Nov. 21, 1919. than other employes of the company and had

full charge of the car, and that only occasion. (Syllabus by the Court.)

ally would any of the others run it in the busi

ness, and never for pleasure; but Sobieski was 174 N. W. 832.

allowed to use it, and frequently took it for the purpose of driving with his family on Sundays

and in the evening, and that he was a reliable, This Court sanctions the doctrine that the

careful driver. An objection to the offer was head of a family, who provides for the recrea

sustained-the court stating that under the altion of the members of his family by furnishing an automobile for their use and pleasure, is

legations of the complaint, in so far as the comresponsible for its negligent use by any one of pany was concerned, plaintiff was confined to the family having his permission to drive it.

proof that Sobieski was using the car in its The doctrine is a development of the rules ap

business and in the course and scope of his plicable to the relation of master and servant and principal and agent, and is not to be extend

employment, otherwise there could be no recoved to cases where an employer permits a favor ery against it, and that the evidence failed to ed employe to use, for his own pleasure, an

show that at the time of the accident Sobieski automobile kept and ordinarily used in carrying

was using the car in the business of the comon the employer's business.

pany or within the scope or course of his em

ployment. A verdict in its favor was directed. LEES, C. Action to recover for personal | This appeal is from an order denying a new injuries caused by the negligence of the de- | trial. fendant Sobieski in operating an automobile This court sanctions the doctrine that the owned by the defendant A. W. Scott Company. | head of a family, who provides for the recrea.

On July 4, 1917, Sobieski, at the direction of tion of the members of his family by furnishing J. Walter Scott, the managing officer of the A. an automobile for their use and pleasure, is W. Scott Company, took an automobile owned responsible for its negligent use by any one of by the company to drive from Minneapolis to

the family having his permission to drive it. Wayzata, where he was to do some work for

The most recent expressions of the court on the Scott. When the work was finished Scott di.

subject may be found in Johnson v. Smith, 173

N. W. 675, and Plasch v. Fass (opinion filed rected him to drive the car back to Minneapolis

October 24, 1919), 174 N. W. 438. The doctrine and put it in the company's building, where it

is a development of the rules applicable to the was kept, and to which Sobieski had a key. On

relation of master and servant and principal his return, Sobieski stopped at his house for a

and agent, which have been extended to meet Doonday dinner and was importuned by his

a new situation brought about by the invention wife to take the car and drive to Minnehaha of the automobile and its common use, with the Park with her and her mother. He at first re owner's permission, by the members of his famfused to do so, on the ground that Scott hadily for whom he has provided it. As was said directed him to take the car back to the place in Kayser v. Van Nest, 125 Minn. 277, 146 N. W. where it was kept. However, he finally yielded 1,091, 51 L. R. A. (N. S.) 970, a man may propto his wife's persuasion, and on the trip to the l erly make it an element of his business to provide pleasures for his family, or, as it was put ment of the rules applicable to the relation of in Denison v. McNorton, 228 Fed. 401, 142 C. c. | master and servant and principal and agent," A. 631, the use of an automobile for the purpose

but that case denies that the logic of such devel

opment should be carried further. Why, however, of furnishing the members of the owner's fam should such logic be thus limited? The true ily with outdoor recreation is within the scope inquiry it seems to me is whether in permission of the business of the head of a family anal

given to a third person to use the automobile

any purpose of the owner is subserved, apart ogously to the furnishing of food and clothing

from a mere spirit of accommodation to such or ministering to their health.


In Dennison v. McNorton, 228 Fed. 401, 142 We are now asked to extend the doctrine to C. C. A. 631, Knapper, C. J., speaking for Sixth cases where an employer permits a favored

Circuit of Appeals, says broadly that: “The employe to use, for his own pleasure, an auto

father is not liable for the son's alleged negli

gence merely because of such relationship. * * * mobile kept and ordinarily used in carrying on To have that result the act complained of must the employer's business. The request is put have been done within the scope of the son's upon the ground that, through the medium of

employment and in conducting what is called

the father's business," citing Coal Co. v. Rivoux, automobiles, employers may properly provide 88 Ohio St. 18, 102 N. E. 302, 46 L. R. A. (N. S.) "fresh air and pleasures, during their leisure | 1091, Am. Cas. 1914C, 1082. hours, as necessaries for their laboring men,” That case, however, holds, as I construe it.

that, though an employe may be about his own and that in so doing they occupy the same posi

business, yet if he had authority, express or tion as the head of a family in similarly pro

implied, of the owner thus to use it, this would viding his wife and children with pleasures of annex liability. In this case it did not appear that sort. If we were to hold as requested, it that the owner had even any knowledge of such

use by his employe. would tend to put an end to the praiseworthy

Thus in Reynolds v. Denholm, 213 Mass. 576, custom of many employers who permit faithful

100 N. E. 1006, the owner was held liable where employes to use occasionally, for their personal

employe was allowed or suffered by the family, enjoyment, automobiles kept and ordinarily without objection, to use the automobile to go

to his meals and to get his laundry, and the used in carrying on the employer's business. If

injury occurred while he was going for his this cannot be done without subjecting the em laundry. The Reynolds case was said by the ployer to liability for damages if his employe is court to be "clearly distinguishable from the negligent in operating the automobile, few em Rivoux case." ployers will continue to follow the custom. But, So in Cunningham v. Castle, 111 N. Y. Supp. aside from this particular consideration, we

1057, 127 App. Div. 580, a chauffeur operating

an automobile with the knowledge and permisthink both reason and authority are opposed to

sion of the owner imposed liability on the owner, plaintiff's contention. The extension of the though the chauffeur was on his own business. family automobile doctrine to other relation It seems to me this is a higher test than that ships cannot well be justified upon any princi. stated in Shamp v. Lambert, 142 Mo. App. 567,

121 S. W. 770, and in Moon v. Matthews, 227 ple of the law of master and servant or prin

Pa. 488, 76 Atl. 219, 29 L. R. A. (N. S.) 856, cipal and agent, The owner of an automobile,

| 136 Am. St. Rep. 902, to the effect generally that who loans it to another, to use for purposes per the servant, though given permission to use the sonal to the borrower, is neither master nor

automobile of his master, this is to be taken as

prosecuting the business of the master. It seems principal, but merely a bailor, and in law is not

to me, that this is a vesting of one's agent with chargeable with the consequences of the bor authority and yet confining its exercise by secret rower's negligence while pursuing his own ends I or private instructions. in his own way.

In Daugherty v. Thomas, Mich., 140 N. W. 615,

45 L. R. A. (N. S.) 699, it was held that by statFor the purposes of the case, we have treated

| ute the owner of an automobile could not be

made liable to strangers for injury by the use the complaint as broad enough to permit the

thereof by persons using it without his knowlintroduction of evidence tending to show either edge or permission. But that case involved the the use of the automobile by Sobieski in the question of "liability of the owner of an auto

mobile, where the same has been taken without course and scope of his employment or its use

intent to steal the same, but without the knowlwith the permission of his employer for a pur

edge or consent of the owner and without * ** pose for which it was kept by the employer. any fault or negligence on his part. We have not Order affirmed.

here the question of the responsibility, be it moral or otherwise, of the owner of an automobile, who

has placed it in the hands of irresponsible perNOTE-Responsibility of Owner of Automobile | sons to use." for Injury by Another Standing in Peculiar Rela- | No, and we have not the question of such a tion to Owner.-The doctrine of owner of auto- permission creating an appearance of an agency mobile being liable for injuries by member of limited by private instructions. family using same for the benefit of such family But this was held differently in Steffen v. is as well said in the instant case, "a develop- | McNaughton, 142 Wis. 49, 124 N. W. 1016, 26

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