Crandall v. Woods

Murray, C. J., delivered the opinion of the .Court—Burnett, J., concurring. The only question involved in this case is, whether a party who locates upon and appropriates public lands belonging to the [141]United States, is entitled to the use of streams and water-courses naturally flowing through such lands, as against persons subsequently appropriating and using the waters of said streams. By the common law, the proprietor of lands upon the banks of a water-course owns to the middle of the stream, and the proprietor of the lands through which the stream flows is held to be the owner of the bed of the stream, and entitled to the use of the water which flows over his land.

The property in the water, by reason of riparian ownership,» is in the nature of a usufruct, and consists in general not so $ much in the fluid as in the advantage of its impetus. This, however, must depend in a great measure upon the natural as well as the artificial wants of eaóh particular country. The rule is well settled that water flows in its natural channels, and should be permitted thus to flow, so that all through whose lands it passes may enjoy the privilege of using it. A riparian proprietor, while he has the undoubted right to use the water flowing over his land, must so use it as to do the least possible harm to other riparian proprietors.

The uses to which water may be appropriated are: 1st, To supply natural wants, such as to quench thirst, to water cattle, for household or culinary purposes, and, in some countries, for the purposes of irrigation. These must be first sujjplied, before the water can be applied to the satisfaction of artificial wants, such as mills, manufactories, and the like, which are not indispensable to man’s existence. Water is regarded as an incident to the soil, the use of which passes with the ownership thereof. As a general rule, a property in water cannot be acquired by appropriation, but only by grant or prescription.

Having thus stated the fundamental principles upon which this right is founded, it is evident that the only difficulty in this case arises, first, from the fact that the defendant is not the owner in fee of the land, but that the title to it is in the government of the United States; and second, the necessity of laying down some rule consistent with our former decisions, and the policy of the State, which has been to protect mining interests and improvements as far as possible.

In Irwin v. Phillips, which is the leading case upon the subject of the appropriation of water, it was admitted that the lands upon which the mining-claims were situated, and through which the water ditch was located, were government lands, and that the mining-claims were located after the water had been appropriated.