5.

6.

No property right already accrued is impaired by Const. art. 8, § 1, providing that the title to all the waters of the

states and territories and from the very first public utterances, whether judicial or legislative, recognized the same custom or common law of vested property rights in the use of water acquired by priority of appropriation.

state shall be in the state, since an appropriator of water acquires no title to the water itself while flowing in its natural channel, but only to the use of a limited amount thereof for beneficial purposes. Irwin v. Phillips, 5 Cal. 140, 63 Am. Dec. Claimants whose rights had ac-113; Osgood v. El Dorado Water & D. G. crued prior to the adoption of Const. art. Min. Co. 56 Cal. 571; Lobdell v. Simpson, 2 8, § 2, providing for the creation of a board Nev. 274, 90 Am. Dec. 537; Jones v. Adams, of control having supervision of the waters of 19 Nev. 78, 6 Pac. 442; Thorp v. Freed, 1 the state, and act December 22, 180, cre- Mont. 651; Yunker v. Nichols, 1 Colo. 551; ating such board and vesting in it power to adjudicate and determine priorities of rights, Schilling v. Rominger, 4 Colo. 100; Coffin v. must submit proofs of their rights in the ad- Left Hand Ditch Co. 6 Colo. 443; Platte judication proceedings the same as claimants Water Co. v. Northern Colorado Irrig. Co. acquiring rights after the adoption of the 12 Colo. 525, 21 Pac. 711; Moyer v. Preston, Constitution and statute. 6 Wyo. 308, 44 Pac. 845; Carson v. Gentner, 33 Or. 512, 43 L. R. A. 130, 52 Pac. 506; Drake v. Earhart, 2 Idaho, 716, 23 Pac. 541; Hill v. Lenormand (Ariz.) 16 Pac. 266; Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290; Trambley v. Luterman, 6 N. M. 15, 27 Pac. 312.

7. The decision of the board of control created by act December 22, 1890, in proceedings to determine priorities of rights in the waters of the state, is not res judicata of the rights of a claimant who, upon due notice, fails to appear and submit proofs of his claims; and he is not estopped from asserting his rights in the courts, since the statute imposes no penalty for a failure to appear, and there is no express limitation upon the further assertion of his rights by legal proceedings.

8.

Q

Notice by registered mail, in addition to notice by publication, of proceedings by the state board of control created by act December 22, 1890, for the determination of rights in the waters of the state, to each

person having a recorded claim to waters of

the streams embraced in the adjudication proceedings, is sufficient to constitute due process of law.

(May 26, 1900.)

UESTIONS reserved by the District Court of Johnson County for the opinion of the Supreme Court in an action brought to quiet title to the right to use water appropriated from a stream for irriga. tion purposes. Answers favorable to plaintiff returned.

The facts are stated in the opinion. Messrs. James W. McCreery and Alvin Bennett, for plaintiff :

"First in time, first in right," has become a property maxim throughout the arid states of the Union, and has been expressly embodied or distinctly recognized in the early legislation and Constitutions of these states; and when property rights have thus attached by virtue of actual use, then the principle of vested rights intervenes to protect such property rights through all the mutations and theories of subsequent legislation.

Water may be appropriated for beneficial and the actual application thereof to the uses by diversion from the public streams beneficial use intended; such appropriation is described as the intent to take, accompanied by the open physical demonstration of such intention, without the pre-requisite of any grant or paper title whatsoever.

Union Mill. & Min. Co. v. Dangberg, 81 Fed. Rep. 73.

Sections 1317, 1318 and 1324 of the Revised Statutes of Wyoming are taken bodily from the statutes of Colorado, and were enacted as declarations of existing customary law by the first general assembly of the territory of Colorado in 1861, and have ever since been, and now are, part of the existing law of irrigation in that state.

Yunker v. Nichols, 1 Colo. 551; Schilling V. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co. 6 Colo. 446; Platte Water Co. v. Northern Colorado Irrig. Co. 12 Colo. 532, 21 Pac. 711; Fort Morgan Land & Canal Co. v. South Platte Ditch Co. 18 Colo. 1, 30 Pac. 1032.

These statutes having been adopted by Wyoming from the state of Colorado, the construction put upon these statutes was also adopted.

Frank v. Hicks, 4 Wyo. 502, 35 Pac. 475, 1025; Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845.

By the adoption of the Constitution these fundamental grounds of right to property remained unchanged.

No grant by Congress was made or intended of any of the waters within the state of Wyoming, constituting a part of the public domain.

Rev. Stat. 1866, § 2339; Atchison v. Peterson, 20 Wall. 507, 22 L. ed. 414; Basey v. Gallagher, 20 Wall. 670, 22 L. ed. 452; Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240; Broder v. Natoma Water & Min. Co. Howell v. Johnson, 89 Fed. Rep. 556; 101 U. S. 274, 25 L. ed. 790; Krall v. United, Platte Water Co. V. Northern Colorado States, 24 C. C. A. 543, 48 U. S. App. 351, 79 Irrig. Co. 12 Colo. 525, 21 Pac. 711. Fed. Rep. 241; Union Mill. & Min. Co. v. Dangberg, 81 Fed. Rep. 73; Howell v. Johnson, 89 Fed. Rep. 556.

The various states and territories carved out of the arid territory of the United States have, from the earliest settlement of such

Abandonment of water rights acquired from the United States according to the local laws, customs, and decisions of the courts is not effected by operation of law, especially by operation of the law of a sovereign which never had any title to the

State v. Harmon, 31 Ohio St. 250; Calla-Colo. 532; Larimer County Reservoir Co. v. nan v. Judd, 23 Wis. 343; Houston v. Williams, 13 Cal. 27, 73 Am. Dec. 565; Cooley, Const. Lim. 109 et seq.

do not come within any definition, descrip-right to the use of water by making a mere tion, or classification of proceedings in rem. claim therefor, regardless of local requireWaples, Proceedings in Rem, §§ 1 et seq. ments, laws, and usages, is not justified. Constructive notice will only operate, except in certain cases of personal status, in proceedings in rem, and will then only bind the property which has been subjected to the power of the court by seizure, or what is equivalent thereto.

of water, for which a certificate was issued sideration. Notwithstanding the settleto him, and that "no amount of water what- ment of the fundamental doctrine, and its ever was awarded or decreed to the plaintiff recognition by our Constitution and stator to any other person for use upon the utes, the law respecting it, in many of its lands described in said plaintiff's petition." phases, may be said to be still in course of Wherefore it is averred that the plaintiff development; and, compared with other has abandoned its rights, and is now estop-questions which are likely to arise relating ped from asserting the same. To this de- to this general subject, it is probable that fense plaintiff filed a general demurrer, upon none will exceed in importance those inthe consideration of which the district court volved and submitted for determination in ordered that the following questions, being this controversy. They strike at the root deemed difficult and important, be reserved of the system adopted in this state for the for the decision of this court: "First. Is supervision and distribution of the approthe board of control of the state of Wyom- priated waters. As introductory to the dising, provided for by article 8, § 2, of the cussion of the reserved questions, we will Constitution of Wyoming, vested with judi- undertake a very brief survey of the leadcial power, in such manner that it may ad- ing features of local legislation and condijudicate and determine the rights of priority tions existing anterior to the framing and among claimants to the use of water for adoption of the Constitution, and the enactbeneficial uses from the public streams of ment of the statute out of which the conthis state? Secord. Is chapter 8 of the tentions in the case at bar arise. Laws of Wyoming of 1890-91, the same be- Legislative attention was first directed to ing an act entitled 'An Act Providing for the this subject in 1875. The act of that year Supervision and Use of the Waters of the declared that those having a possessory State,' or the sections of said chapter which right or title to land "on the bank, margin, authorize the board of control to adjudicate or neighborhood of any stream" should be water rights, and providing a system of pro-entitled to the use of the water thereof for cedure therefor, constitutional? Third. If the purpose of irrigation, and to a right of the board of control be a legal tribunal for way over the lands of others for the conthe adjudication of water rights, and the struction of irrigating ditches. Provision act in question constitutional, are such pro- was also made for the just and equitable visions retroactive, and are claimants of allotment of water in times of scarcity prior rights to the use of water, which were through the agency of commissioners, who, acquired prior to the adoption of the Consti- when appointed and required to act, were to tution and passage of the acts in question, make the apportionment for the interest of required to submit their rights to the adju- all parties concerned, and with due regard dication of said board? Fourth. In case to the legal rights of all. At the time of the claimants of water rights which accrued, as passage of the act of 1875 the territory was stated in the petition herein, before the very sparsely settled, and, comparatively, adoption of the Constitution, do not submit but little had been accomplished towards the their rights to said board for adjudication cultivation of the soil. It is a fact, neverwhen proceedings are had under the provi- theless, that, from the earliest settlement of sions of the act by the board of control for the territory, irrigation, although in a limthe adjudication of the rights of the stream ited degree, had been practised by means of out of which said claimants take their the diversion of the water of natural streams water, are they then concluded or estopped and land had thereby been brought under by such adjudication? Fifth. Do the provi- successful cultivation; and in certain porsions of the statute providing for publica- tions of the territory water rights had been tion of notice and notice by mail, and with- acquired for the purposes of mining, and out actual citation or service of summons, possibly in aid of other industries. It is constitute due process of law, whereby the safe to say, however, that while irrigation titles of persons to water rights for benefi had been resorted to sufficiently to demand cial uses may be determined? Sixth. Does legislative recognition as early as 1875, and the answer or defense to which the demur- the right to appropriate water for beneficial rer was interposed constitute a suflicient an- uses had been from the beginning continualswer or defense to plaintiff's complaint, un-ly asserted and recognized by prevailing cusder the law?" tom and usage, it had not then attained such In this state the dectrine prevails that a proportions as to exact much public interright to the use of water may be acquired ference or regulation. With the increasing by priority of appropriation for beneficial settlement of the public lands, and the impurposes, in contravention to the common-petus furnished to their reclamation through law rule that every riparian owner is entitled to the continued natural flow of the waters of the stream running through or adjacent to his lands. The appropriation consists in a diversion of the water by some adequate means, and its application to a beneficial use. Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845. It is doubtful if any questions of graver importance than those affecting water rights are presented for judicial con

the enactment by Congress in 1877 of the desert-land act, water appropriations and irrigation works were rapidly augmented in number and value, until in 1886 many valuable water rights had been acquired, and title to considerable public land had been secured by patent from the general government in consequence of such settlement and reclamation. The settlement of the public lands, with but few exceptions, if any, although

the entry may have been made under the by various individuals or companies of homestead or pre-emption laws, was ex- water from the same stream by separate pedited, if, indeed, it was not solely rendered ditches or canals, and at different points possible, by the facilities, afforded by nature, along its course, under rights by appropriathe customs, and laws, for the irrigation tion to so divert and use the water. A simithereof. Thus, the cultivation, and even lar proceeding in Colorado has been held to the occupation, of the lands within the ter- be based upon, or to grow out of, the police ritory had been attended with the expendi- power of the state. Farmers' Independent ture of much capital and labor, and the very Ditch Co. v. Agricultural Ditch Co. 22 Colo. existence of the homes of a large class of 513, 45 Pac. 444; White v. Farmers' Highcitizens, as well as the productiveness of the line Canal & Reservoir Co. 22 Colo. 191, 31 soil, depended upon the security to be af- L. R. A. 828, 43 Pac. 1028. See also Louden forded the appropriations of water which Irrigating Canal Co. v. Handy Ditch Co. 22 had been made; and in view of the many Colo. 102, 110, 43 Pac. 535. The persons inrights already accrued, and the inception of stituting the proceeding were not required new ones which would necessarily accom- to allege any injury to them or their proppany the continued growth of the territory, erty, nor any facts necessary to constitute the welfare of the entire people became deep- a cause of action at law, or ground for rely concerned in a wise, economical, and or- lief in equity. The purpose of the adjudiderly regulation of the use of the waters of cation was a decree settling the various the public streams. It was realized that priorities of right from the same stream, and more adequate laws were demanded, to duly the issuance thereunder of a certificate to protect this important industrial interest, each appropriator represented; showing his give stability to its values, assist in a desir- relative priority, and the quantity of water able conservation of the waters, and avoid to which he should be found entitled. The confusion and difficulty in their distribution. decree could be reopened at any time within A striking advance along these lines was two years, and could be reviewed with or made by an act of the territorial legislature without reargument or additional evidence, of 1886, although the imperfections of that and an appeal could be taken to the supreme law soon asserted themselves. It is no part court. The proceedings were largely informof our purpose to dwell in detail upon the al, and it was permitted the court or judge provisions of that act, for they do not con- to appoint a referee to take the testimony. cern the present inquiry, except in so far The same legislature provided by another as, together with other legislation, they tend act for an official survey of the several to illustrate the development of our exist- ditches or canals connected with the approing system, and the influences which led to priation of water, by county surveyors, at the constitutional expressions, and the in- the expense of the owners. The certificate auguration of the scheme incorporated in of the surveyor, showing the result of the the act of 1890-91. Succinctly stated, the survey, was required to be filed with the act of 1886 embraced a declaration that the proper clerk of court. Rev. Stat. 1887, §§ water of every natural stream was the prop- 1362-1365. It is known that a few adjudierty of the public, and dedicated to the use cations, but not many, occurred under proof the people, subject to appropriation; the ceedings afforded by the act of 1886. In division of the territory into irrigation dis- 1888 the office of territorial engineer was tricts, not as public corporations, but as in- created, with general power of supervision cluding specified territory, within each of of the diversion and division of the public which districts a water commissioner was to waters, and of the work of the water combe appointed, with general authority to di- missioners. It was exacted of that officer vide the water in the streams in his district that he measure and ascertain the carrying among the several ditches according to their capacity of any ditch, at the request of an respective prior rights; the creation of a interested party, and furnish a certificate special proceeding for the adjudication of the thereof, and measure and calculate the flow priorities of rights upon the same stream of the waters of each stream drawn upon for within the same district, in the particular irrigation purposes. He was further redistrict court vested by the act with quired to collect facts and make reports as jurisdiction therein, the districts within to a system of reservoirs, become conversant the jurisdiction of each district court with the water ways of the territory, and being designated; and a provision requir- to suggest from time to time the amendment ing every claimant to a water right to of existing or enactment of new laws, as his file a statement of claim thereof, un- information and experience should suggest. der oath, with the county clerk and clerk A copy of all decrees in the special proceedof court, on or before September 1, 1886, ings under the law of 1886 was required to and every subsequent claimant to so file a be forwarded to the engineer, recorded in similar claim before commencing the con- his office, and the particulars thereof furstruction of his diverting works. See Rev. nished the appropriate commissioner. Laws Stat. 1887, §§ 1331-1361. The special pro- 1888, chap. 55. The act of 1888 also deceeding for adjudication was purely statu- clared the waters of the natural streams to tory, and the only reason for its creation is be public, and dedicated to the people, subto be found in the inability of the ordinary ject to appropriation, and made new regulaprocedure and processes of the law to meet tions (largely a repetition of the former) the necessities pertaining to the segregation as to the recording of claims, but discarded