Argument for Plaintiff in Error.

224 U.S.

parian right to the use of water may be defeated by a subsequent, as well as by a prior, appropriation, but it does not follow that the doctrine of riparian rights is "abolished in toto."

For cases involving the doctrine of appropriation and of priority between appropriators, the public character of the use of waters, and the right of the State to regulate the matters involved in the application of the waters of the State to its development, during the first ten or twelve years of statehood, see Wilterding v. Green, 4 Idaho, 773; Geertson v. Barrack, 3 Idaho, 344; Conant v. Jones, 3 Idaho, 606; Malad Valley Irrigating Co. v. Campbell, 2 Idaho, 411; Sandpoint Water & Light Co. v. Panhandle Development Co., 11 Idaho, 405; Boise City Irrig. & Land Co. v. Stewart, 10 Idaho, 38. Powell v. Springston Lumber Co., 12 Idaho, 723, 1904, is the first case in Idaho which consciously recognized a riparian right as such. But it is soon followed by others. See Johnson v. Johnson, 14 Idaho, 561; Shephard v. Cœur d'Alene Lumber Co., 101 Pac. Rep. 591.

A riparian owner in Idaho still retains such right to have the waters flow in the natural stream through or by his premises as he may protect in the courts as against persons interfering with the natural flow, or who attempt to divert or cut off the same wrongfully and arbitrarily, and without doing so under any right of location, appropriation, diversion or use, and who do not rest their right to do so upon any right of use or appropriation. Hutchinson v. Watson Slough Co., 101 Pac. Rep. 1059.

A riparian owner may claim or "fix" his right in such a way as to prevent its subsequent appropriation. This is accomplished by "appropriating" that right in the manner prescribed by the statute.

The foregoing rules apply to this case. Up to the time that the defendant began the construction of its works the plaintiff had the rights of a riparian proprietor, good as against everybody but an appropriator.

224 U.S.

Argument for Plaintiff in Error.

The riparian right upon which the plaintiff insists is to the current flow of the stream. That is established. Tyler v. Wilkinson, 4 Mason, 397; Weiss v. Iron Co., 11 Pac. Rep. (Ore.) 255; Gould v. Boston Dock Co., 13 Gray, 442; Head v. Amoskeag Mfg. Co., 113 U. S. 19; Shamleffer v. Peerless Mill Co., 18 Kansas, 33; Lux v. Haggin, 69 California, 255; McCalmont v. Whitaker, 3 Rawle, 84; 23 Am. Dec. 102.

This riparian right to the flow is a valuable property right, of which the riparian owner cannot be deprived without his consent, or compensation being paid therefor, when it is desired to devote the right to a public use. Yates v. Milwaukee, 10 Wall. 497; Pine v. York, 103 Fed. Rep. 337; Kaukauna Water Power Co. v. Green Bay Co., 142 U. S. 276; Sturr v. Beck, 133 U. S. 541.

As a

Even assuming that defendant is an appropriator, the plaintiff must still prevail as a riparian owner. riparian owner, he had title to the current good as against all but an appropriator. He had the right to "fix" such right so as to prevent its subsequent appropriation, or its defeat by such an appropriation.

What was so clearly a riparian right at common law may be appropriated by a riparian proprietor under the Idaho law. The difference between the Idaho law and the common law of riparian rights rests principally in the mode of acquisition of those rights. Under the common law the right attaches to riparian proprietorship, and continues as incident thereto whether it is ever used or not. Under the Idaho law the right exists, but to be secure against the higher law of appropriation, it must be appropriated, that is, beneficially used; the riparian owner cannot sit back and retard the development of the country by claiming a dormant right. If he wants the right he must use it, and give notice to the world that he is using it, before some one else spends time and money in acquiring a similar right.

Plaintiff had a riparian owner's right to the current;

Argument for Defendant in Error.

224 U.S.

he could fix that right by an appropriation to a beneficial use so as to make it available as against a subsequent appropriator; he did fix the right by such an appropriation.

Mr. Edward B. Critchlow, with whom Mr. William J. Barrette was on the brief, for defendant in error:

Each State may determine for itself whether the common law rule in respect to riparian rights or the rule of appropriation shall be enforced as to waters within its boundaries. Kansas v. Colorado, 206 U. S. 46, 94.

Generally, the arid States and Territories, Idaho included, have adopted the rule that water may be appropriated for beneficial uses. Colorado-Hammond v. Rose, 7 Am. St. Rep. 258; Arizona-Austin v. Chandler, 42 Pac. Rep. 483; Idaho-Drake v. Earhart, 2 Idaho, 716; Hutchinson v. Watson Slough Co., 101 Pac. Rep. 1059; New Mexico -Trambley v. Luterman, 27 Pac. Rep. 312; Albuquerque &c. Co. v. Gutierrez, 61 Pac. Rep. 357; Nevada—Reno &c., Co. v. Stevenson, 19 Am. St. Rep. 364; Walsh v. Wallace, 26 Nevada, 299; Utah-Cole v. Richards Irrig. Co., 27 Utah, 205; 101 Am. St. Rep. 962; Morris v. Bean, 146 Fed. Rep. 431; Wyoming-Willey v. Decker, 100 Am. St. Rep. 939.

The common-law rights of riparian owners and the rights acquired under the doctrine of appropriation are distinct and antagonistic and cannot both be recognized or enforced. Clark v. Nash, 198 U. S. 361; Boquillas Cattle Co. v. Curtis, 213 U. S. 339; United States v. Rio Grande Dam & Irrig. Co., 174 U. S. 690; Hutchinson v. Watson Slough Co. (Idaho), 101 Pac. Rep. 1059; Stowell v. Johnson, 7 Utah, 225.

Appropriation involves these several elements: An intent to apply to some beneficial use; an actual diversion such as gives physical control of the stream or such part as is appropriated; an application within a reasonable time to some useful industry. Low v. Rizor, 25 Oregon,

224 U. S.

Argument for Defendant in Error.

551; 37 Pac. Rep. 84; Black's Pomeroy's Water Rights, 48-51.

The manner of use so far as it affects the quantity of water sought to be appropriated must be reasonable and with due regard to the rights of others. An unreasonable claim of appropriation is a void claim. Basy v. Gallagher, 20 Wall. 670; Atchison v. Peterson, 20 Wall. 507; Rio Grande West. Ry. Co. v. Telluride Co., 16 Utah, 137; Roeder v. Stein, 23 Nevada, 92; 42 Pac. Rep. 867; Barnes v. Sabron, 10 Nevada, 243; Nevada Ditch Co. v. Bennett, 30 Oregon, 59; Van Camp v. Emery, 13 Idaho, 202; Hough v. Porter, 51 Oregon, 318; S. C., 98 Pac. Rep. 1083; Farmers' Co-op. Ditch Co. v. Riverside Irrig. Dist., 16 Idaho, 525; S. C., 102 Pac. Rep. 481; Fitzpatrick v. Montgomery, 20 Montana, 181, 187.

Plaintiff's claim is that the entire Snake River shall be allowed to flow as in a state of nature, with volume and current undiminished. This is tantamount to a claim either that the entire river has been appropriated by the plaintiff for the irrigation of about 420 acres of land, or that independently of any use or appropriation the right so to control the river vests through riparian ownership.

This claim which is the basis of plaintiff's asserted cause of action cannot be sustained.

Because the appropriation was for irrigation only and the limit of such appropriation was the amount necessary to irrigate about 430 acres; because the current or velocity, being a mere incident or function of the water, cannot be appropriated; because except as to the water actually placed upon the lands there was no such diversion as is necessary; because an appropriation of the entire stream, if plaintiff's use for the operation of water wheels was to be considered such, would be unreasonable and therefore void. In a legal sense it would not be beneficial; and because such an appropriation would be void for uncertainty.

VOL. CCXXIV-8

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Since the writ of certiorari in this case was granted the petitioner died, and his executrix was substituted. The writ was allowed to enable us to review the action of the court below in affirming a judgment of the Circuit Court of the United States for the District of Idaho. The judgment of the Circuit Court sustained a demurrer to the complaint of the petitioner, who was plaintiff, on the ground that it stated no cause of action. An absolute judgment of dismissal was entered consequent on the election by the plaintiff to stand on the complaint as filed. The court below summarized the averments of the three counts of the complaint, and as that summary accurately and sufficiently states the case, we adopt and reproduce it, as follows (161 Fed. Rep. 43):

"Plaintiff's complaint contains three counts. Briefly stated, the cause of action as set out in the three counts of the complaint is as follows: Plaintiff is the owner of three tracts of land on the banks of Snake river, containing in the aggregate 429.96 acres. Two of these tracts, containing 263.96 acres, are on the south bank, and one tract of 160 acres is on the north bank. One of the tracts on the south bank is agricultural land, and the other is partly agricultural land and partly mining ground. The tract of land on the north bank is agricultural. In the year 1889 plaintiff's predecessors in interest, and in 1895 the plaintiff himself, appropriated certain quantities of water of the flow of Snake river for use on said lands. In the first count the quantity is stated in cubic feet per second; in the second and third counts the quantities are stated in miner's inches. The aggregate of water appropriated as alleged in the three counts is referred to in the briefs as 1,250 miner's inches. Soon after this water was appropriated the parties in interest erected