Omaha Daily Bee Newspaper, February 5, 1903, Page 3

“UPHOLDS IRRIGATION LAW Bupreme Court Reve-res Former Des sion in the Or: whyrd Oace. STATE IRRIGATION BOARD A LEGAL BODY Rullng on the Broad Doe- of Riparian Rights While Uphold the General Prin- eiple Involved. (From a Staff Correspondent.) LINCOLN, Feb. 4 1.)—The supreme court today decided the case of the Crawford eompany against Hathaway, from Dawes eounty, which for so long has been in the hands of the court. The decision is in favor of the Crawford company. ~Judge Holcomb wrote the opinion. It upholds th constitutionality of the State Board of Irr gation and upholds the doctrine of riparian rights to a limited extent, thus giving both these bodies contending for state con- trol of water and riparfan rights some en couragement. The former opinfon of the court Is reversed and the case is remanded for trial Similar questions were decided in the cases of Jen. C. Meng against Charles F. Coffey et al.. and the Cattle Rock Irriga- tlon Cazal and Water company against Phillp Jurisch. Judge Pound wrote the opinion in the first named and Judge Sedg- wick the opinion In the latter. Court States Case. In discussing the case the court says: | “Briefly. the appellant, who was plaintiff | below, began an action equitable in char- acter to have adjudicated the rights of different persons made parties to the ac- tion to the use of the water flowing in a siream called White river, and to enjo'n the defendant, Hall, from a threatened in- terference with plaintifi's headwater and works cognected with an irrigating canal now being constructed by it. The plaintift claimed the right to divert the waters of the stream mentioned for irrigation pur- poses and to supply the town of Crawford, ,situated near its proposed canal, with water for munieipal purposes. Defendant Hall, owning and operating & mill, adjacert to the stream, which had been utilized. for power purposes, denfes plaintif's alleged right of appropriation and claims a right to the continued use of the water ordinarily | flowing In the stream as a riparian propri- etor. Numerous other defendants claim- ing some right to the use of the water as ripariaz owners or by appropriation, were alpo made defendants with a view of hav- ing adjudicated the rights of all the parties to the litigation. The trial court refused to take jurisdiction and try the case on its merits for the reason that the water rights of the respective parties had not first been determined by the State Board of Irrigation under the provisions of the irrigation act of 1895. On defendant Hall's application on a cross petition an injunc- tion was granted against plaintiff restrain” ing it from dive®ting the water of the stream Into its irrigation canal and the temporary injunction granted in its favor ead agaiost Hall was dissolved. From these several orders the plaintiff appeals. “The arguments in this court have taken an exceedlngly broad range. Narrowed to its simplest terms, the matters in dispute relate to conflicting rights and interests as botween riparian owners, and those claim- ing as appropriators of the waters in the streams of the state for irrigation and other benmeficial purposes. Incidental to the main. question thus stated there fs involved the constitutionality of the irri- gation act of 189, creating and providing for a state board of irrigation, defining 1ts dutles, powers and authority and espe- clally the portion of the act which em- powers such board to determine and adjust | section—that, s may not be treated as waters of navigabl [ rivers to which riparian rights of an ad- | joining land owner would not attach as| sagainst the right of the public to use the | waters thereof by its appropriation and ap plication to beneficial purposes. While as an abstract proposition of law | a riparian proprietor has the right to the | ordinary flow of the stream, this rule woula | furnish no basis for compensation where | water Is appropriated for irrigation pur entitle a riparian owner to compersaticn he must suffer an actual loss or injury to his riparian estate which the law recognizes as belonging to bim by reason of his right to the use and enjoy ment of the wate which he is deprived “Ordinarily a riparian proprietor's right to the nse of water of a stream is limited to its use for domestic purposes, and If ap- plied to the irrigation of riparian lands a reasonable use for such purpose in view of an equal right to use belonging to all other riparian proprietors. The right of | a riparian proprietor as such to use water | for irrigation purposes fs limited to rip- arian 1°nds. The right cannot be extended to lands contiguous to the riparfan lands nor can water be diverted to non-riparian lands which might be used on riparian lands but is not Defines Riparian Lands. “Land to be riparian must have the stream flowing over it or along its borders The extent of riparian land cannot in any event exceed the area acquired by a single entry or purchase from the govern- ment, and whether in view of the pollcy of the government in the disposition of| its public lands such riparian lands may exceed the smallest legal supposition of a forty acres, or in lieu thereof {f an irregular tract, a designated numbered lot, which is bordered by a nat- ural stream or over which it flows, quaere. “The true doctrines of water right, one | the right of a riparian proprietor and the other the right of appropriation and appli- cation to a beneficial use by a non-reparian owner may exist in the state at the same time, and both do exist concurrently in this state. “The common law rule of riparian rights is underlying and fundamental and takes precedence of appropriation of water it prior in time. The riparian owner acquires | title to his usufructuary interest in the | water when he secures the land to which it is an incident, and appropriator ac- quires title by appropriation and the ap- plication of the water to some beneficial use. The time when elther right at- taches determines the superiority of title as between conflicting claimants. “The irrigation acts of 1589 and 1885 aborogated the law of private riparfan rights as theretofore existed and substi- tuted in its stead a law providing for the appropriation of the public waters of the state and their application to the benen- cial uses therein contemplated. Disturbs No Vested Right. “The legislative enactments referred to did not have the effect of abolishing vested rights of riparian proprietors, but affected only such rights as might have been ac- quired in the future under the law as there- tofore existing “The court will take judicial notice of the fact that since the early settlement of the western portion of the state, where irrigation has been found essentlal to suc- cessful agriculture, that a custom or prace tice has existéd of appropriating and di- verting waters from the natural channels thereof into irrigation canals and the ap- plication of such watera to the sofl for ag- ricultural purposes, whether vested rights | bave been acquired thereby must depend on the facts and circumstances as dis- closed in any particular case. “The right to the use of water when acquired by appropriation is In its nature a property right and becomes a superior and better title to the use and enjoyment of such water than that of a riparian pro- | prietor whose right attaches subsequently. ! 1ts waters by an upper owner. | intantry ! infantry; THE OMAHA DAIL Y BEE: THURSDAY, T B S e TELEPHONE WAR 1S NOW 0N than ten years does not give a prescriptive right that will prevent reasonable use of Friday, or the 13th of day of the month, has no terrors for the present adjutant general. In addition to the order fssued today, which follows, he has called a meet- | ing of the military board for the same day. Friday, February 13, and an election will | be held the same day to chose a successar | 10 Major Bolshaw, whose election as lieu- tenant colonel, has been approved. The canvassing board is composed of Captain Harry Hull, Company A, First regiment Lieutenant Rawlins, Company K of Colum- | bus, and Adjutant General Colby. An elec- | tion of commissioned officers has been | called for the Millard rifies, to occur at their next regular meeting. Adjutant Gen- | eral Colby igsued this order today ursuast to section 4. chapter Ivi of the Compilea Statutes of Nebraska, a board of | xamiration will convene in the adjutan general's office, L eb., at 10 o clock a. m. on Fri ebruary 13, 19, tfor the purpose of examining such officers us may be ordered before it as lo_thelr quail fications for commissions as officers of the Nebraska National Guard The following officers are detailed such board: mrigedler General P. H Barry, First brigade; Colonel H. L. Archer, | rst ‘infantry regiment; Lieutenant Col- | onel V. Claris ‘albot. First infantry reg iment; Major Charles A. Vickers, First in- | fantry regiment; Major R. Emmett Gif- | fer, brigade surgeon; Captain John . Hartigan, Company D, Second Infantry | regiment; Captain Fred J. Mack. M, Second infantry regiment The examination ordered in the fore ing paragraph will be made in_ac with general orders No. 7. A. G of 1397, with such modifications as rescribed to the Board of Examination by he adjutant general The following officers of the Nebraska National Guard will report in undress uni- form, with side arms, for examination to | the president of the board, convened by | paragraph 1 of this order, towit: Colonel John W. McDonnell, Second infantry; Lieu- | tenant Colonel Fred J. Boishaw, Second | infantry; Major Eli Hodgins, Second in- fantry; Captain S8amuel E. Yoder, Battery A; Captain Jesse C. Perrod, Company C. | First infantry: Capfain George A. Eberly, | Stanton Rifles; Captain James C. Elllott, West Polnt Rifles: Captain Wiillam R Brooks, Engineering and Signal corps; | Captaln Albert L. Goodon, Company B.| First infantry; Captain Walter F. Sam- mons, Company A, Second Infantry; Cap- tain Johu T. Crosfer, Company D’ First Captain Oliver G. Osborne, Com- pany G. Second infantry; Captain George W. Sues, Millard Rifles: Captain Otia M. | Newman, Company H. Second Infantry: Captain 'Ernest H. Tracy, Company i. Second inf ‘aptain Charles Sarha, ir.. Com First infantry; Captain | Bruce Me( South Omaha cavalry; aptain Cliffora W. Walden, surgeon, Sec ond iInfantry: First Lieutenant Nelson N. Barber, Company B, First Infantry; First | ileuteriant Kalph L. Sabin, Company C. | First infantry; First Lieutenant Danlel | Templeton, Company 1. First infantry: First Lientenant Iver S. Johnsop, Stanton Rifles; First Lieutenant Arthur G. Sexton, | West ‘Point Rifles: First Lieutenant Wil- llam E. Baehr, Compa L. First infantry; | First Lieutenant Clayton orton, Com- | pany B, Second infantry; First Lieutenant J. Rex' Henry, Engineering and Signal corps: First Lieutenant Willard E. Balley, | Company D, Second infantry: First Lieu- | tenant James Allen, Company G, Second | First Licutenant Raymond J Pool, Company D, First infantry; First Lieutenant Clinton W. T. Garrison. Battery | A: First Lleuterant Frank H. Brown, a sistant surgeon, Second infantry; First | Lieutenant James B. Hungate, assistant rgeon, First infantry: First Lieutenant | Frank 8. Nicholson, ~assistant _surgeon, | Battery A: First Lieutenant Harry E. | Tagg, South Omaha cavalry: First Lleu- | tenant Robert A. Clapp, adjutant, Second | infantry; First Lieutenant Karl M. Shank- land, Company I, Second Infantry: Firat Lieutenant Justin H. Sarbach, quarter- master. Second infantry; First Lieutenant Roy H. Walker, Millard Rifles; Second Lieutenant Lewis G. Kremer. Company B, | First infantry; Second Lieut Thomas, Troop A, cavalry: Se tenant Fred J. Fayerherm, Stanton Rifles Second Lieutenant Ralph 'H. Doch, Com pany I, Iirst infantry; Second Lieutenant | George F. Breedfuehrer. Company K, First | infantry; Second Lieutenant Fred Hill Rivkards, Engineering and Signal corps; Second Lieutenant Harry W. Majors, Com- pany L, First infantry; Second Lieutenant Lawrence E. Jones, Company o', First i fantry; Second Lieutenant M.% on Fost-r, Company B, Second Infantry: Second Lica’ tenant Edmund H. Mullowney. Company f, Second infantry; Second Lieutenant Clare D. Peebler, Company H, First infantry; | instructions to tear out e Fremont Authorities Out Wires and Obop Down Poles of Beli Oompany. LINEMAN ATTEMPTS TO BLOCK THE GAME des to the Ground When He Dise s Really Chopping Down—Company covers OMcer the Pole Does Not Show M FREMONT, Neb, Feb. 4.—(Speclal)— There have been no mew developments in the telephone war here today. Yesterday afternoon on account of the storm the Bell people did not do much. This morn'ng Local Manager Cummings sent out several gangs of men In different parts of the city to work on the lines. Street Commissioner Mackey, an expert lineman in the employ of the city, and the police went with them. At the corner of Main and Eighth streets elght new wires were put 4n. The city's lineman climbed the pole and cut them with a pair of nippers. commissioner found that any new work had Been done since Saturday night he tore out the wires, and by noon he had disabled a lot of new work. The Bell men went out as usual this afternoon scattering around | | Wherever the street | through the city, and as fast as possible | the wires were cut by the commissioner or under his direction. Yesterday Mr. Mackey found two new poles which had just been set. A man was still working on top of ope of them. He was ordered to come down, but in- formed the commissioner that he would do so when he was ready, and not before. Mackey then started to saw the pole down, and the man bent It over so that the saw pinched. He had an axe with him, how- ever, and chopped on the other side until the lineman became alarmed, and slid to | the ground as fast as he knew hows.. The other pole was sawed off There has been no hard feeling between | tho Bell linemen and the city authorities. It .was rumored this morning that the trouble would be brought to a head by the arrest of the Bell linemen for the violation of a city ordinance which prohibits any person, company or corporation from set- ting any poles or stringing any wires within the limits of the city without first | procuring the consent of the mayor and council under a penalty of a fine not less than $10 or more than $50, but no warrants have been issued and it is evidently the plan of the city to compel the Bell com- pany to take the first move to put a stop | fo the present state of affal Local Manager Cummings says that he | has instructions to go ahead with his work | as usual, doing repairing and putting fin | before, and Street | new phones the same a: Commissioner Markey Is also acting under Ty plece of new work put In. A careful examination of the records of the city council fails to show where any right or franchise was granted the Bell people. The city is In the fight to a finish and stoutly denles that the Bell company is subject to no restrictions or regulations whatever. Independent Telephone Meeting. NEBRASKA CITY, Neb, Feb. 4.—(Spe- cial Telegram.)—The members and man- egers of the independent telephone com- panies of southeastern Nebraska held a meeting in this city this afternoon. FEBRUARY THE SATURDAY EVENING POST EVERY WEER Only By the author of Letters from a Self-Made Merchant to His Son. A new series of papers in which Old Man Graham preaches the gospel of good business and tells some of his characteristic stories. This Life Story of a Self-Made Merchant, by George Horace Lorimer, will be one of the features of coming issues of the magazine. The Letters from a Self-Made Merchant to His Son met with universal favor, and there is every reason to believe that the new series by the same author will be equally popular. In the new series old Graham tells the story of his own business career : how he began life as a farmer's boy, worked his way to the front and became the biggest pork packer in the West. Try the NEW POST to July New features, more of them, greatly improved. A handsomely printed and beautifully illustrated weekly magazine. Established 175 years and circulating nearlv half a million copies every week. THE CURTIS PUBLISHING COMPANY PHILADELPHIA, PA. YOUNG WIFEHOOD ' Bostow, Mass., 152 §hawmut Ave., Oct. 25, 1902, After I had been married about for months I felt my health geaerally decline. I ed to lose tho light step and dragged along wearily Instead. My appetite faled me and I 108t health and strength. | was nervous and had shootl through my limbs and stomach while bearing down and constant head..coes added to my misery. The menstrual became more and more profuse and I was unfit to attend to my daily duties My husband called in three different Qiyricians and I took medicine enougn to kill o curs a dozen womea. bt it all had o effect on me whatever, uatil 1 took ne of Cardul In & few days I felt & change for the better, my general health improved and at the next time of my periods may flow was more natural and I wae in less pain. Gndnnl“ Fecovered my hellth and strength and am now in perfect hesith. I take anoccasional dose of Wine of Cardui which keeps me well. Iam™ maappy to give you this endorsemen Wine of Cardui brought Mrs. Ricker good health. That is why she has so much faith in it that she never is without Wine of Cardui in her house. « The first months following marriage are full of peril for the young wife and a dose of Wine of Cardui every day is a great reinforcement to her strength. Why don't you try for the same health Mrs. Ricker has? 1t is easy to secure if you take Wine of Cardui according to directions. Wine of Cardui strengthens weak and worn-out women of any age and e o Second [Ldeutenant Oliver A. Fairchild, ‘The act of congress of July 26, 1866. ' Company A, Second Infantry: Second Lieu- granted to those appropriating water on tenant '\\'Hlllm sl'>i-'nlr‘;‘4lk‘orl‘llll!\)" GF sfb‘l' . | ond infantry; econ leutenant . the public domain for agricultural pur-| gl nh" West Point Rifies: Second Lieu: poses a right in and to the use of @uch ' enant Edward 1. Fodge, Company D, waters when made according to local cus- | FIrflTIn')t\lHr\v 8econd L,l!ull{nl(nl‘ I"hllrl 'S = W. Taylor, Company G, First infantry 19W8 br Whesl, SUSh rigbt. reseenined By Second Lieutenant James H. Duncanson, the laws of this state or the decisions of | Soutn Omaha avalry: Second Lieutenant and the application therof to a beneficial | the courts. Anton Honriksen, Company H, Second in- use has never become a part of the laws “The act of 18T ‘fl'l:!r:‘r‘)yn,n?"t&lulpgg:‘l1I;n(.::\l‘!)!?rgz“sné\lll.:.r:\p; of this state; and this without regard to page 168, e bert Herman Barker, Company whether the doctrine was ever in exist- ' the rights to appropriate the waters on Second infantry: Second Licutenant ence as a part of the law In force in the | the public domain according to the custom | Ward V. Cooper Milard Rifles. = 0 territory acquired by the United States prevailing in the arid states immediately amination and the officers to be examined know as the Louisiana purchase. west of us, and the irrigation acts of 18! will be furnished transportation from their “The common rule with respect to the 'and ‘1885 expressly recognized and pre- | rights of private riparian proprietors has | served the rights of those who had appro- been a part of the laws of the state ever priated the public waters and applied them since the organization of A state govern- | to agritultural uses, home stations to Lincoln and return. ment. o eviatton moard., | DEMAND DEFEAT OF THE LOBBY the amount and priority of right to the e of water by appropriation for irrigation purposes. sy . of C “The doctrine of the civil law with re- spect to the right of acquiring an interest in the use of water by prior appropriatfon session laws of 187 was an Implied recognition of By command of the governor, L. W. COLBY, Adjutant Generil “It cannot bo said that the common law ptid e rile defining the right of riparian propri- | “The duty of the state board of irriga- D ine ot Oudins stiwnigthans woake &0 Wiks 0G5 Whme OF ny ape Soul etors 1s inapplicable to the conditions pre- | tion as provided for in the irrigation act | Oupsatiinn 1 Ruitiooa TN R e Tt vailing in the state because irrigation Is | ¢’ 1895, chapter Ixiv. session laws, are ad- | Sachuhdian §¥ine of Cardu makes women it for all the duties of womanhood. found essential to successtul agriculture in | ministrative and judicial; the sections of | . A O e M b Bl S g g N P aa SRCIORIN SEMINY sk Soncd TN not wa- i 553 lencorrheea, ovarian troables, and has been known to remove what ph “A riparian’s right (o the use of the flow | constitutional as conferring judicial pow- D, Neb., Feb. 4.—(Spe- sicians considered dangerous tumors. . Women who use Wine of Cardui of the stream passing through or by his | ers on executive officers. | cial.)—At their session last night the demo- Democratic Editors Go on Record in do not suffer at the monthly periods. No shock or strain lays them up land 1s & right inseparably annexed to the soll, mot as an easement or appurtance but as a part and parcel of the land; such | right being a property right and entitled to protection as such, the same as private property right generally. “The legislature has not abolished, nor does It possess the power to abolish. the rights of riparian proprietors which have become vested, sxcept as such.rights be taken or fmpaired for public use in an ex- ercise of- the powpr of eminent domain, for which compensation must be made for the injury sustained “The provisions of section 41, article ii, chapter xcili a, compiled statutes, 1591, and of section 3 article i of the constitution authorizes the condemnation of the right of a private riparian proprietor to the use and employment of a natural stream flowing ! past his land or its impairment by an ap- propriation of such water for irrigation pur- poses, and such riparian proprietor may re. cover damages In the same way and sub- joct to the same rules as a person whose | property Is affected injuriously by the con. struction and operation of a rallroad Can Recover Damage: “The irrigation act of 1895 authorizes and regulates the appropriation of the | waters of this state for irrigation and other purposes which are declared to be a pub- Ne use, and in making appropristion for water as contemplated by the act, a ripar- | 1an owner whose property rights are ap- “Wisere a large number of persons claim rights to use or divert the waters of stream by virtue of riparian rights, ap- propriation, prescription or otherwise, a sult in equity to’ determine to such rights and | enjoin infringement, under color thereof, of rights acquired thereof under the frri- | gation act, may be maintained to avoid multiplicity of suits ““The plaintiff in such a sult may offer to do equity by compensating riparian owners whose rights are affected by the construction and operation of a canal with- out lcaving them to their actions at law; | and in that way.the amounts due the sev- | eral parties by way of damage may be- | come a prover subject of inquiry and ad- | on therein. term ‘domestic purposes’ as used in section 43, article i1, chapter xelila, Com- piled Statutes 1901, ha® reference to the use of water for. domestic purposes per- mitted to the riparian proprietor at com- | mon law, which ordinarlly involves but | little interference with the water of a stream or its flow, and does not contem rlate diversion of large quantities of water in canals or pipe lines. b The common law does not give to a riparian owner an absolute and exclusive right to the flow of all the wsater of the stream In its Datural state, but omly a right to the benefit and advantage of the | water o wing pest his land, so far as con- stent with a Mie right in all other ripa- | spect to house roll 171, now pending before | or school purposes. | through such deception, escape their pro- atic editers discussed the revenue law revision situation thoroughly, and finally opted unanimously the following resolu- tione, which were drawn by a committee of which C. J. Bowlby of the Crete Democrat was chairman “We denounce the attempt of the rail- road lobby to deceive the publie with re ‘ the Nebraska legislature, the same being a bill designed to require railroad companies to bear their just proportion of taxation in cities of the metropolitan clas ! “The attempt on the part of the railroad | lobby to make it appear through editorlals, | admittedly written by the lobby and paid | for by the railroads, that this measure, if | enacted into law, would affect taxes to be | paid by rallroads for state, county and school purposes is indefensible and deserves prompt and vigorous rebuke at the hands of all who believe that the truth should be known with respect to every public meas- ure and who object to the escape of taxa- tion by the railroads for state, county, city “We believe It to be the duty of every democratic member of the legislature to vote for house roll 171 and register his pro- test in an effective way agalnst the attempt t the railroads to deceive the people, and portion of taxation “The democratic party was organized for the purpose of winning for every citizen in bed for di s or weeks with nervous prostration. A 81.00 bottle of Wine of Cardui purchased from your druggist will from pain They do not suffer e . hysterical attacks, because Wine of Cardui gives them strong nerves freed from the irritation of female suffering. =~ WINE-CARDUI CHICACO, MILWAUKEE & ST. PAUL RY. ‘equality before the law.’ Recognizing the gross inequality in the levying of taxes In this state, we urge the democratic mem- bers of the state legislature to labor for the enactment of a revenue law which will version of th storm or flood waters of the | Iay the burden of taxation equally upon all stre.n and thereby prevent its occupation | classee of property.” {10 w benefictal use as contemplated by the R E o o o RN government in Ita survey of the public | statute. lands, the question is left open to| *“There is no such thing as a prescrip- WEST POINT, Neb., Feb. 4.—(Special.)— whether or not the waters of such streams ; tive right of a lower riparian owner to re- [ Miss Mary Liermann, the young woman | 80 severely burned about tbe body by the o g explosion of a can of gasoline with which she was trying to kindle a fire, succumbed to her injuries last night at the tional hotel in this city, where shé was moved irimediately after the accident. She was THE FANILY'S FAVORITE MEDIGINE 17 years of age and the daughter of Wil- llam Liermann, a prominent farmer, and was attending school in the city at the time. She was an exceptionaliy bright and lovable girl rian owne.s. “A ripaiian owner having a superior ti- tle to the use of the water of a stream as g2insi = appropriator is mot entitled to maintam an io,unction to prevent the di- propriated or yupaired is entitled to com. pensation for 'the Injuries actuslly sus. tained, to be recovered in a suitable action or & proceeding instituted for that purpose As to those streams of water flowing through the state which may be classed as interstate rivers, and along the banks «f which meander lines have been run by the The number of trains operated between Omaha and Chicago via the Chicago, Milwaukee & St. Paul Railway has been increased to three daily fast trains each way. These trains are magnificently equipped with palace sleeping-cars, dining- cars, and free reclining-chair cars. The trains are solid, wide-vestibuled, heated by steam, and are lighted by Pintsch gas and electricity. Nothing finer moves on wheels. The service on the dining-cars is perfect. Daily Trains Eastbound, the trains leave the Union Passenger Station, Omaha, promptly as follows: The Limited, - - Eastern Express, Atiantic Express. 8.085 p. m. 5.45 p. m. 7.45 a.m. At Chicago these trains arrive at the Union Passenger Station, Canal and Adams streets—in the heart of the city. Excellent connections for the East and " TICKETS, 1504 Farnam St. F. A. NASH, General W, Ban on Slot Machinés, NEBRASKA CITY, Neb., Feb. 4.—(Spe- clal Telegram.)—Mayor Bartling today sued orders (o the police to suppress” all the slot machine traffic in this city. This orcer includes the trade machines also and practically kills the slot mathine business bere. CANDY CATHARTIC Dragests THE BOWELS tern Agent.