noting that a senior water- □ right holder “may take all the water he can use reasonably and without waste for a beneficial . project, although it may be the lion’s share and none may be left for those who come afterwards” and that the senior water-right holder “owles] no duty ... to those endeavoring to use the water by title subsequent to his own”
How later courts described this case
- noting that a senior water- □ right holder “may take all the water he can use reasonably and without waste for a beneficial . project, although it may be the lion’s share and none may be left for those who come afterwards” and that the senior water-right holder “owles] no duty ... to those endeavoring to use the water by title subsequent to his own”
Written by the judges who cited it.
The opinion
Mr. Chief Justice Eakin
delivered the following concurring opinion:
I concur in the result of this decision, but I cannot give my consent to the following statement: “Primarily, any use of the water of a natural stream for a ^beneficial purpose is free to him who has an opportunity to take it without infringing upon the property rights of another. * * Concerning the mere diversion and use of water there is no difference between a non-riparian appropriator and riparian user, provided the former has a lawful right of access for that purpose to the stream from which the diversion is made. The essential condition of appropriation in the first place on public lands was the consent or acquiescence of the then riparian owner, the general government. ' The reason of the rule is not changed by the fact that the riparian owner is a private person provided the appropriator has his consent, or, what is equivalent, that the appropriator and the riparian owner are one and the same person. -The deduction then is that if any one can lawfully gain access for that purpose to a non-navigable stream, and water is there not subject to use by another, such a one may appropriate it for his own use”—the effect of which statement is to abolish or do away with riparian rights as heretofore recognized in this State.