Isaacs v. Barber , 30 L.R.A. 665 ( 1894 )

Stiles, J.,

(concurring). — It will be found upon examination that all of the cases cited to sustain the doctrine of appropriation upon which the foregoing decision is based, were either mining or irrigation cases — such as arose out of the necessities of the surroundings. Mines could not be worked or lands cultivated in the arid regions without diverting the waters of the streams, and as the government’s interest was that such enterprises be fostered while large areas of the public lands were still unsurveyed and not disposed of, the right to make permanent diversion of water was conceded prior to the act of 1866, as is held by the federal Supreme court. But this was the case of an ordinary flour mill, such as has been erected in every country over which the common law of England prevails. Every portion of the United States contains them, whether the country surrounding them be arid or not. West of the Cascade mountains they are as necessary and frequent as they are east of them, and there is no greater reason for conceding to them this right of permanent appropriation in one locality than in another. Cessat ratio, cess at lex. The peculiar circumstances demanding the concession made by the government not having existed for the support of this case of diversion, I hold that for it the concession cannot be admitted to have been made, and that the common law rule should prevail.

But in the case under consideration a sufficient reason existed for the judgment rendered in favor of the respondent; for the tract of land owned by appellant, at a point lower down on the stream than respondent’s dam, is a part of the tract conveyed by the government to respondent’s grantor ; and when appellant received his conveyance the common grantor had for more than twenty years acquiesced in the appropriation made by respondent at a point upon his land. I therefore concur in the result.