THE KANSAS-COLORADO WATER SUIT

593

seem to be little doubt that the appropria tion of water doctrine will stand, though it will undoubtedly be given some interstate application which will protect as fully as may be, the rights of water users in states lower down the stream.1

Upon the question of the right method of protecting riparian proprietors in the down stream states, there is room for a difference of opinion, but it would seem as if the con tention of the United States as intervenor in the Kansas-Colorado suit is right. Where a state higher up on a stream adopts the 1 The Kansas Supreme Court attempts to show that by authority of Congress the common law, appropriation of water doctrine, riparian and, in consequence, the riparian-right doctrine, rights in a state lower down on the stream was extended over the arid region. Clark v. Alla- are necessarily to some .extent infringed, man (Kas.). 80 Pac. 571. It should be noted, and as long as it is established that the however, that general statutory provisions adopt ing the common law leave that law subject to upper state has a legal right to adopt the change by special statutes, and that, as a result, appropriation doctrine, the only way for the Federal Act of 1866, and subsequent acts, riparian owners in the lower state to get other recompense than damages l is to come excepted the riparian-law doctrine from the com mon law prevailing in the arid region controlled in as appropriators. They can do this by by the United States, if it had not already been excepted. Moreover, the common law has never insisting that appropriation, historically and been adopted in the several states and territories, in essence, knows no interstate lines; that, except so far as applicable to conditions there; fundamentally, it requires only the diversion and the riparian-law doctrine has certainly never of water and its application to a beneficial been "applicable" to Colorado and the rest of use to establish an appropriation; 2 and that the strictly arid region. It is further to be re membered that even if it must be deemed that from an early day the common law has fixed rights to water in the arid region, it by no means follows that the riparian-law doctrine has been part of it there. The common law has consider able flexibility, and just as its existence in the several states of the United States is consistent with the ownership of land in those states being non-feudal so its application to the arid region is perfectly consistent with the appropriation of water doctrine. It may indeed, be asserted that the doctrine of appropriation of water has always been the common law doctrine for arid regions, just as that of riparian rights has always been the common law for wet localities. It is no objection to the appropriation of water doctrine as the common law rule for arid regions to say that it is a new pronunciamento of the courts. The Rule against Perpetuities, for instance, was not announced in any form until after 1607, the year which the Colorado statute names as the one in which the common law adopted by Colorado shall be ascertained; yet the Colorado Supreme Court very properly held that the Rule against Perpetuities exists in Colorado, and that too, in the very latest form given to it by the English courts. The reasoning of the Colorado court is found in the following sentences: "The common law thus being a constant growth, gradually ex panding and adapting itself to the changing con ditions of life and business from time to time, what the law is at any particular time must be

determined from the latest decisions of the courts; and the recognized theory is that aside from the influence of statutory enactments the latest judicial announcement of the courts is merely declaratory of what the law is, and always has been. We are at liberty, therefore, if not absolutely bound thereby, to avail ourselves of the latest expression of the English courts upon any particular branch of the law, in so far as the same is applicable to our insti tutions, of a general nature, and suitable to the genius of our people, as well as to consult the English decisions made prior to 1607." Chilcott v. Hart, 23 Colo. 40, at page 56. .What was true of the Rule against Perpetuities is no less true of the arid region appropriation of water doctrine. 1 In Nebraska an appropriator's right to the use of the water appropriated is superior to that. of a riparian owner, even though the latter be higher up on the stream, where the riparian owner, after the appropriation, seeks to make reasonable use of the stream for the irrigation of the riparian lands; but the riparian owner can recover damages to the extent that his riparian rights are impaired. McCook Irrigation & Water Power Co. v. Crews (Neb.), 102 N. W. 249. See former opinion in same case in 96 N. W. 996. 2 "This appropriation is the intent to take accompanied by some open physical demonstra tion of the intent, and for some valuable use." McDonald v. Bear River Co., 13 Cal., 220. See Ft. Morgan Land & Canal Co., v. Ditch Co., 18 Colo. i.