Clark v. Allaman

• Decision Date: 08 April 1905
• Docket Number: 13,851
• Citation: 80 P. 571,71 Kan. 206
• Parties: H. A. CLARK et al. v. LIZZIE ALLAMAN et al
• Court: Kansas Supreme Court

80 P. 571

71 Kan. 206

H. A. CLARK et al. v. LIZZIE ALLAMAN et al

No. 13,851

Supreme Court of Kansas

April 8, 1905

Decided January, 1905.

Error from Wallace district court; LEE MONROE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMMON LAW--Its Prevalence in Kansas Prior to 1868. From the time of their acquisition by the United States until 1868 the common law was prevalent over the separate portions of the region from which the state of Kansas was erected under all civilized forms of governmental organization established for them; and from 1855 until 1868 the common law, not inconsistent with the constitution of the United States, the Kansas-Nebraska act, or statute law, was the rule of action and decision, any law, custom or usage to the contrary notwithstanding.

2. COMMON LAW--Rights of Riparian Owners. The rules of the common law relating to the rights of riparian owners to use the water of running streams were adapted to the conditions and wants of the early settlers of the territory and state of Kansas, and no usages or customs to the contrary were recognized or established by them.

3. COMMON LAW--Statute of 1868 Continued Existing Law. At the time of the enactment of the statute of 1868 continuing in force the common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, the rules of the common law relating to the rights of riparian owners to use the water of running streams had become incorporated into, and were a part of, the settled jurisprudence of the state.

4. COMMON LAW--Not Repealable by Local Customs. By the enactment of the statute of 1868 the settled law of the state relating to the rights of riparian owners to use the water of running streams did not become exposed to repeal by local customs to the contrary, nor by judicial recognition of such customs.

5. IRRIGATION--Statute Required to Change Established Principles. Without statutory authority this court has no power to recognize or enforce in a limited section of the state new rules of law relating to the use of the water of running streams antagonistic to established principles of law already in force throughout the entire state.

6. IRRIGATION--Local Customs. Evidence cannot be received of local customs contrary to established principles of law.

7. IRRIGATION--No Right of Prior Appropriation before 1886. Prior to the statute of 1886 authorizing the acquisition of the right to use the water of running streams for irrigation purposes by appropriation, and providing that, as between appropriators, the first in time is the first in right, there had been no recognition of such a legal doctrine in this state, either by statute or by decision of this court; local customs based upon such principles were invalid, and no water-rights of the character mentioned in the Revised Statutes of the United States, sections 2339 and 2340, had either vested or accrued.

8. IRRIGATION--Property in Flow of Running Water--Constitutional Guaranty. By various statutes enacted since 1886 the legislature has recognized the diversion and appropriation of water for irrigation purposes to be a public use, and has allowed the right of eminent domain to be exercised in its aid; but property in the flow of running water acquired under the previously existing common-law system is protected by the fourteenth amendment to the constitution of the United States.

9. IRRIGATION--Dual Doctrines. The doctrine of prior appropriation may exist in the same state with the common-law doctrine of riparian rights.

10. IRRIGATION--Right to Use Water for Irrigation. The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common-law rights of a riparian proprietor.

11. IRRIGATION--Use Must be Reasonable. The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream.

12. IRRIGATION--Diminution of Flow--Damages. A diminution of the flow of water over riparian land caused by its use for irrigation purposes by upper riparian proprietors occasions no injury for which damages may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy.

13. IRRIGATION--Equality of Right. In determining the quantity of land tributary to and lying along a stream which a single proprietor may irrigate the principle of equality of right with others should control, irrespective of the accidental matter of governmental subdivisions of the land.

14. IRRIGATION--Diversion of Water--Prescription. A lower riparian owner acquires no prescriptive right against upper proprietors to receive a given quantity of the flow of a stream by diverting and using it after it has left their land; and an upper proprietor can acquire no prescriptive right to divert water, as against owners down the stream, so long as the flow is sufficient for the needs of all.

Milton Brown, for plaintiffs in error.

C. C. Coleman, attorney-general, as amicus curiae, and Roark & Roark, for defendants in error; S. S. Ashbaugh, N. H. Loomis, and F. Dumont Smith, of counsel.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The parties to this litigation are contesting for the right to enjoy one of nature's benignities. As if relenting from her severity toward the semiarid plains of Wallace county, where atmosphere and soil are parched in almost continuous drought, she has caused a number of springs of pure and wholesome water to break from the bosom of the earth and form the unfailing stream of Rose creek. Here wild things came in early days to slake their thirst; here the hunter of the bison and the wild horse lay in wait; and here the irrigation farmer came to practice agriculture.

The stream proper is formed by the confluence of a west and a south branch, and is only five miles long. Except as augmented by rain or snow or reduced by excessive evaporation the flow is constant throughout the year; and if not diverted for irrigation purposes would approximate five cubic feet per second at its mouth. In very dry times this amount might be reduced to two cubic feet per second. It empties upon the sands of the bed of the Smoky Hill river, usually dry except in flood seasons of the year.

Some time prior to the year 1871 a man known by the name of Comstock placed a dam in the west branch of Rose creek, and from it constructed a ditch, by means of which he irrigated a garden-plot some four acres in extent. The dam was built and the ditch was taken out upon land afterward patented to the Union Pacific Railway Company, and purchased from it by plaintiff in error H. A. Clark. The water was used upon other land, to which, so far as the record shows, Comstock had taken no steps to acquire title, and which was entered by Clark, under the land laws of the United States, on September 12, 1876. In 1871 Comstock sold his dam and ditch to H. W. Wheeler, who likewise appears to have made no effort to acquire title to the land. In 1872 Wheeler failed to utilize the dam and ditch, but did so from 1873 to 1876, when he sold to Clark. The land to which the water was diverted includes the course of the south branch of Rose creek. Another tract of land through which the south branch flows was entered by Asa W. Clark on November 6, 1876, and afterward became the property of H. A. Clark. In subsequent years Mr. Clark acquired much other land in the vicinity of that already referred to, placed other dams in the branches of the creek, constructed other ditches, and by means of his entire irrigation system brought under successful cultivation some seventy acres of land.

In the year 1875 a man known as A. L. Dodge placed a dam in the Smoky Hill river at a point below its junction with Rose creek. At the place where the dam was located the water from Rose creek constituted the ordinary flow of the stream. From the dam a ditch was constructed to a point more than a mile to the eastward, by means of which Dodge irrigated during the season of 1875 or 1876 some ten acres of ground lying partly on the south half of the southeast quarter of section 26, township 13 south, range 39 west. Dodge appears to have been without legal interest in any of the land along the course of his ditch. Section 27, on which the dam was built, was patented to the Union Pacific Land Company on October 24, 1900, presumably as a successor in interest to the railroad company already mentioned. The southwest quarter of section 26, through which the ditch ran, was entered as a homestead by George H. Palmer on November 2, 1878, and subsequently patented to him.

In the autumn of 1876 George R. Allaman purchased the Dodge dam and ditch, and made some kind of a settlement on the southeast quarter of section 26, the character of which is not described. On April 12, 1877, he filed a declaratory statement for the north half of the southeast quarter of section 26, which, however, did not ripen into title. On January 8, 1880, he made a homestead entry of the entire southeast quarter of section 26, under which he subsequently obtained full title. On November 24, 1888, he conveyed the real estate thus acquired to his wife, Lizzie R. Allaman, the plaintiff in the district court and one of the defendants in error here. The Dodge ditch appears to run through the south half of the southeast quarter of section 26. None of Mrs Allaman's land is riparian to Rose creek, but the channel of the Smoky Hill river traverses a...