in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the Constitution, a prior right thereto to the extent of such appropriation."

Congress, as early as 1866, recognized the necessity of the abolition of the common-law doctrine of riparian rights in the arid States. Speaking of the act of July 26, 1866, the Supreme Court, in United States v. Rio Grande Irrigation Co. (174 U. S., 690, 740), said:

The effect of this statute was to recognize, so far as the United States are concerned, the validity of the local customs, laws, and decisions of courts in respect to the appropriation of water."

And again, at page 702:

66

While this is undoubted (the rule of the common law as to riparian rights), and the rule obtains in those States in the Union which have simply adopted the common law, it is also true that as to every stream within its domain a State may change this common-law rule and permit the appropriation of the flowing waters for such purposes as it deems wise."

In Gutierres v. Albuquerque Land Co. (188 U. S., 545, 552) it is said: "We think, in view of the legislation of Congress on the subject of the appropriation of water on the public domain, particularly referred to in the opinion of this court in United States v. Rio Grande Irrigation Co. (174 U. S., 690, 704-706), the objection is devoid of merit. As stated in the opinion just referred to, by the act of July 26, 1866 (14 Stat., 253), Congress recognized as respects the public domain, so far as the United States are concerned, the validity of the local customs, law, and decisions of courts in respect to the appropriation of water."

Also Clark v. Nash (195 U. S., 361, 370):

"The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Western States, by their constitution and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the States of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those States arising from mining and the cultivation of an otherwise valueless soil by means of irrigation. This court must recognize the difference of climate and soil which rendered necessary these different laws in the States so situated." This question had direct consideration by the circuit court of appeals for this circuit in the case of Snyder v. Colorado Gold Dredging Co., opinion in which was filed August 4, 1910. In that case it is said:

"The common-law doctrine in respect of the rights of riparian proprietors in the waters of natural streams never has obtained in Colorado. From the earliest times in that jurisdiction the local customs, laws, and decisions of courts have united in rejecting that doctrine and in adopting a different one which regards the waters of all natural streams as subject to appropriation and diversion for beneficial uses, and treats priority of appropriation and continued beneficial use as giving the prior and superior right. (Yunker v. Nichols, 1 Colo., 551; Coffin v. Left Hand Ditch Co., 6 Colo., 443, 447; Platte Water Co. v. Northern Colorado Irrigation Co., 12 Colo., 525, 531; Crippen v. White, 28 Colo., 296.) In so choosing between these two inconsistent doctrines Clorado acted within the limits of her authority, first as a Territory and then as a State, and her choice was recognized and sanctioned by Congress, so far as the public lands of the United States were concerned."

And again:

"It needs only to be added that, by the settled rule of decision in the Supreme Court of the United States, conveyances by the United States of public lands on nonnavigable streams and lakes, when it is not provided otherwise, are to be constructed and have effect according to the law of the State in which the lands are situate, so far as the rights and incidents of riparian proprietorship are concerned. (Hardin v. Jordan, 140 U. S., 370, 384, 402; Hardin v. Sheed, 190 U. S., 508, 519; Whittaker v. McBride, 197 U. S., 510; Harrison v. Fite, 78 C. C. A. 447, 148 Fed., 781, 783.) Here it is not provided otherwise, either by statute or by the patent, and, as has been seen, the local law does not recognize a conveyance of the land as carrying any right to the unappropriated waters of the stream."

It is therefore believed that the patent from the Government did not pass, and the patentee did not take riparian rights to the waters in question, but

that said lands are held by the complainants subject to the law of appropriation of waters as established in this State. And inasmuch as there is no testimony showing any right to the waters of Cascade Creek in the complainant Bigger, other than that of a riparian owner, the finding of the court must be against him, and his case dismissed, if the alleged threatened acts would constitute a valid appropriation.

2. If the defendant were permitted to impound and pipe the waters of Cascade Creek for the purpose of generating electricity to be sold by it as a commodity, as charged in the bill it was threatening to do and admitted in the answer and shown by the proof it intended to do, such acts would have constituted a valid appropriation of said waters under the constitution and laws of the State of Colorado as they have been constituted by the court of last resort in this State. (Lamborn v. Bell, 18 Colo., 346; Sternberger v. Seaton N. Col, 45 Colo., 401; See also, Schwab v. Beam, 86 Fed., 41, 43.)

3. Does the testimony show an appropriation of the waters of Cascade Creek by the complainant company or its predecessors in title along the falls as they flow through Cascade Canyon?

The people of Colorado dedicated to the public all unappropriated waters of every natural stream within its borders and made them subject to appropriation as private property. (Const. of Colo., art. 16, secs. 5 and 6.)

Section 6 reads, in part, as follows:

"The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."

But ne'ther the manner of making such appropriation nor the acts necessary to be done to constitute an appropriation has been definitely fixed by the constitution, by the statutes, or by the decisions of he courts. Nor has the term "beneficial uses," as used in section 6, supra, been definitely fixed and limited in its meaning. I can not better express my own views as to the meaning of that phrase, applicable to the facts here, than to quote a part of the brief of the learned solicitor for complainant:

"The courts have not defined, because they as yet are unable to define, the exact boundaries of the territory known as 'beneficial use.'" Mr. Kinney, in his work on Irrigation, says:

"The purpose contemplated for the use of the water may be irrigation for agricultural or horticultural purposes, mining, milling, manufacturing, domestic, or any other purpose for which water is needed to supply the natural and artificial wants of man provided to be a beneficial use." (Sec. 150 )

Pomeroy says (sec. 47):

"The purpose may be mining, milling, manufacturing, irrigating, agricul tural, horticultural, domestic, or otherwise; but there must be some actual, positive, beneficial purpose, existing at the time or contemplated in the future, as the subject for which the water is to be utilized.

"The public health is a beneficial use, and for that purpose, among others, a city may condemn streams of water. The water, when so obtained, may be used, and is used, in any manner that will promote the public health; it is used for sprinkling the streets, washing the pavements, and flushing the sewers. 'Rest and recreation is a beneficial use, and for that purpose water is used to make beautiful lawns, shady avenues, attractive homes, and public parks, with fountains, lakelets, and streams, and artificial scenic beauty. No one

"Cities condemn water and use water for the foregoing purposes. questions but that public health, rest, and recreation is a domestic use as well as a beneficial use. No one, we may add, questions the right to these

uses.

"The law inside of a city is not different from the law outside of the city. In one sense there is no commercial value to fountains and parks; they do not bring in a revenue, but they are vastly beneficial to the public health, rest, and recreation, and such fact is recognized the world over, and there can be no question but that water applied to their maintenance and creation is a 'beneficial use.'

"We say that the creation of a summer resort is a beneficial use Is it no benefit to the public to spend money in making a beautiful place in nature visible and enjoyable? Is it not in line with public health, rest, and recrea tion? If a person takes a stream and, after putting in waterfalls, ponds, bridges, walls, shrubbery, and bluegrass sod, works it into a beautiful home, that is a beneficial use. It is beneficial to the weary, ailing, and feeble that they can have the wild beauties of nature placed at their convenient disposal. Is a piece of canvas valuable only for a tent fly but worthless as a

painting? Is a block of stone beneficially used when put into the walls of a dam and not beneficially used when carved into a piece of statuary? Is the test dollars, or has beauty of scenery, rest, recreation, health, enjoyment something to do with it? Is there no beneficial use except that which is purely commercial?

"It would seem that parks and playgrounds and blue grass are benefits and their uses beneficial although there is no profit derived from them; if not, then the contention of the defendant corporation must be maintained that nothing but money-making schemes are beneficial. The world delights in scenic beauty, but must scenic beauty disappear because it has no appraised cash value? If this defendant corporation takes the water out of Cascade Canyon, it can take the water out of the Seven Falls and Cheyenne Canyon, and Glen Eyrie, and the beautiful parks, and homes and summer resorts of the State. We feel compelled to say that there are other beneficial uses of the fall of water than the mere production of commodities in competition with others now existing. When the defendant company says the complainants are putting the fall of the water to no beneficial use, it means that the complainants are not ruining the beautiful scenery for cash."

It is therefore held that the maintenance of the vegetation in Cascade Canyon for the purposes to which it has been devoted by the complainant, by the flow and seepage, and mist and spray of the stream and its falls as it passes through the canvon, is a beneficial use of such waters within the meaning of said section 6, article 16 of the constitution, that the complainant intended to use the waters of Cascade Creek for that purpose, and has so used them for many years and thereby appropriated the same. The complainant is not required to construct ditches or artificial ways through which the water might be taken from the stream in order that it might appropriate the same. The only indispeasable requirements are that the appropiator, in order to constitute a valid appropriation, first, must intend to use the waters for a beneficial use, and, second, actually apply them to a beneficial use. There is express statutory recognition of utilization of lands from natural overflow as one means of appropriation, as in the flooding of meadows by natural overflow without the use of any artificial means whatever. (Rev. Stats. of Colo., 1908, sec. 3165; Humphreys Co. v. Frank, 46 Colo., 524; Broad Run Inv. Co. v. Deuel & Snyder Imp. Co., 108 Pac. (Colo.), 755.)

The supreme court of this State, in considering the means necessary to constitute appropriation, in Thomas . Guiraud (6 Colo., 530, 533), said:

"We do not agree with counsel for plaintiff in error in their position, as we understand it that the appropriation of water by Guiraud in 1862 was not valid or permanent because he constructed no ditches. Some of the witnesses testify that he did construct ditches, but it is unnecessary for us to weigh the testimony and determine the preponderance thereof upon this question. If a dam or contrivance of any kind will suffer to turn water from the stream and moisten the land sought to be cultivated, it is sufficient though no ditch is needed or constructed. Or if land be rendered productive by the natural overflow of the water thereon, without the aid of any appliances whatever, the cultivation of such land by means of the water so naturally moistening the same is a sufficient appropriation of such water, or so much thereof as is reasonably necessary for such use. The true test of appropriation of water is the successful application thereof to the beneficial use designed; and the method of diverting or carrying the same or making such application is immaterial."

And again, considering the same question, that court, in Larimer Co. R. Co. v. People ex rel. (8 Colo., 614, at 616), declares:

"It is claimed that when the constitution recognizes the right to appropriate water by diversion, it excludes the appropriation thereof in any other manner. Further, that the word 'divert' means to take or carry it away from the bed or channel of the stream; that therefore respondent's act of utilizing a natural reservoir in the bed of the stream and thus storing surplus water for future use, not being a diversion in the sense of the constitutional provision cited, is in conflict therewith. We are not prepared to concede the correctness of counsel's position. It is our opinion that the above is not the most natural and reasonable view to adopt concerning the meaning of the constitution. The word divert' must be interpreted in connection with the word appropriation and with other language used in the remaining sections of that instrument referring to the subject of irrigation. We think there may be a constitutional appropriation of water without its being at the instant taken from the bed of the stream. This court has held that the true test of the appropriation of

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water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same or making such application is immaterial.'" (Thomas v. Guiraud, 6 Colo., 530.)

See also Fort Morgan L. & C. Co. v. South Platter Ditch Co., 16 Colo., 1, 5. In Offield v. Ish, 57 Pac. (Wash.), 809, it is said:

"The right to use the water is the essence of appropriation. The means by which it is done are incidental."

See also McCall v. Porter (70 Pac. (9re.), 820, 822).

It therefore appears that the waters of Cascade Creek, which the defendant threatens to impound and carry away in pipes, has already been appropriated by the complainant, the Cascade Town Co., for beneficial uses, and that it has a vested property right therein which the defendant's contemplated acts, if executed, will destroy. The complainant company may have a decree as prayed, with costs. The bill of complainant, Bigger, will be dismissed, with costs to the defendant against him.

PUEBLO, COLO.

District Judge.

[Telegram.]

FEBRUARY 17, 1911.

We respectfully urge that you use every effort to secure the adoption of Senate joint resolution 143 extending the Burton Act for the preservation of Niagara River. The Burton Act was carefully framed to recognize and protect every interest then existing to the full extent of all development then projected. To maintain the status can inflict no possible harm upon existing enterprises. To change it as proposed by the Alexander bill, will quickly produce maximum Canadian development by permitting the full utilization in the United States of the power generated in Canada against the spirit of the treaty and to the great detriment of Niagara Falls. We earnestly urge that no further hearings be granted but that the resolution be at once pressed for passage. Public sentiment throughout the entire country has hitherto been overwhelmingly expressed to Congress in support of the Burton Act.

THE MERCHANTS' ASSOCIATION OF NEW YORK.

Mr. RICHARD B. WATROUS,

THE J. L. HUDSON CO.,
Detroit, Mich., May 6, 1911.

Secretary American Civic Association, Washington, D. C.

MY DEAR MR. WATROUS: I have yours 5th and have written to each member of the Senate Committee on Foreign Relations except Mr. Burton, as follows: "I am exceedingly interested in Niagara Falls. For 40 years I have been in the habit of going there. I have never seen anything that compares with the Falls in grandeur, and I have been utterly opposed to diverting the waters from their natural course.

"I think we made a mistake in giving the power companies any rights there at all. They now use 34,000 cubic feet per second and want 56,000. I feel very earnestly that their request should be denied. The enormous amount of water that went over the Falls before any of it was diverted was none too much, and now in many places the decrease is noticeable.

"I hope your committee will report the Burton bill out favorably, and that the Senate will approve of the committee's findings. I think the financial advantage of any man or any set of men should not be considered at all in connection with such a world wonder as Niagara Falls is.

"I hope you think as I do about it, and that you will support the Burton bill.” To Mr. Burton I have written:

"I am very much interested in Niagara Falls and have written to each member of the Senate Committee on Foreign Relations as follows: Can I do anything further to help you in this matter?'"

With kind regards, I am,

Yours, very truly,

J. L. HUDSON.

ERIE AND ONTARIO SANITARY CANAL COMPANY-PROPOSED BILL FOR CONGRESS.

A BILL To give effect to the treaty between the United States and Great Britain.

Whereas it is stipulated in Article V of a treaty between the United States and Great Britain, signed January eleventh, nineteen hundred and nine, commonly known as the waterways treaty, that the United States may authorize and permit the diversion within the State of New York of the waters of the Niagara River above the Falls for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet per second, provided the level of Lake Erie and the flow of the Niagara River shall not be appreciably lowered; and

Whereas the prohibitions of Article V do not apply to the diversion of water for sanitary and domestic purposes, and for the service of canals for the purpose of navigation; and

Whereas it is stipulated in Article IV of said treaty that the boundary waters shall not be polluted on either side, to the injury of health or property on the other; and

Whereas the cities bordering upon the Niagara River and situate in the district contiguous thereto are subjected to epidemics of typhoid fever caused by the polluted water taken from Niagara River, and considerations of public health demand the abatement of these dangers without delay; and

Whereas the Erie and Ontario Sanitary Canal Company has been organized under the laws of the State of New York to construct, without State or Federal aid, a canal between Lake Erie and Lake Ontario, beginning at a point at or near Smokes Creek, south of the city of Buffalo on Lake Erie, and thence to the mouth of Eighteen Mile Creek on Lake Ontario, a distance of fifty miles, more or less; and

Whereas it is hereinafter provided that said canal shall be used free of cost by the cities of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara Falls, Lockport, and all other municipalities and communities situate upon the Niagara frontier, to carry off all the sewage and the sewage-polluted storm waters now flowing from said towns, cities, and municipalities into Lake Erie and the Niagara River, polluting the water thereof, to the great injury to the health of the persons living along the said Niagara frontier; and

Whereas the said canal will be of sufficient depth and width to enable boats, barges, and other water craft of large tonnage to navigate the same from its beginning on Lake Erie to a point intercepting the Erie Canal at or near the city of Lockport, in the State of New York, thereby increasing the efficiency and the value to the public of said Erie Canal; and

Whereas the level of Lake Erie will not be lowered by the building of said canal so as to interfere with or affect its navigability; and the waters flowing within the Niagara River, now under the control of the War Department, shall not be diverted so as to affect the beauty and grandeur of the volume thereof flowing over Niagara Falls: Therefore, to carry out conservation of health and power,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled

That the Erie and Ontario Sanitary Canal Company, a corporation organized under the laws of the State of New York, be, and the same is hereby, authorized to take six thousand cubic feet of water per second from Lake Erie and Niagara River for sanitary purposes and canal navigation and power, four thousand four hundred cubic feet thereof being the remaining part unused of the twenty thousand cubic feet allowed for power on the American side under said treaty, and one thousand six hundred cubic feet thereof being an allowance under said treaty especially for sanitation and navigation, which volume of water shall be taken through three channels, designated as Buffalo River, Smokes Creek, and Black Rock Harbor.

SEC. 2. That the company within two years after the passage of this act shall begin the construction of the aforesaid canal without seeking from State or Nation other aid than that afforded by such cooperation as may properly be effected between Federal and State authorities; and the said company shall thereafter with due diligence prosecute the work to completion.

SEC. 3. That in consideration of the aforesaid grant said company shall give to the cities of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara Falls, Lockport, and all other municipalities, public and private corporations,