Empire Water & Power Co. v. Cascade Town Co. - 205 F. 123 (8th Cir. 1913)

Rule:

Referring to Montana and Wyoming and the use of waters of nonnavigable streams, Mr. Justice Holmes said, in Bean v. Morris, 221 U.S. 485, 31 Sup. Ct. 703, 55 L. Ed. 821: The doctrine of appropriation has prevailed in these regions probably from the first moment that they knew of any law, and has continued since they became territory of the United States and so in Colorado. That rights may vary and be adjusted somewhat to the imperative necessities of natural conditions is also exemplified in Clark v. Nash, 198 U.S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171, and Strickley v. Mining Co., 200 U.S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174. 

Facts:

Defendant-appellant Empire Water & Power Co. was incorporated for the purpose of generating electricity by water power, and to dispose of the same as a commodity; and to execute that purpose it sent its agents on to the watershed of Pike's Peak, above the head of one of Complainant’s companies, and located a reservoir site and did some acts, at small expense, looking to the execution of that purpose, whereby it intended and expected to impound the waters in such reservoir and later conduct it in pipes down the mountain to and beyond the property of the complainant company. The complainant filed several bills asking that the defendant be enjoined from so doing, -- as a threatened injury to their vested rights. 

Issue:

Did the complainant, Cascade Town Company, by its ownership of lands in Colorado conveyed by patent of the United States, possess riparian rights as at common law, free from public taking or restrictive regulation save by the exercise of the power of eminent domain?

Answer:

No.

Conclusion:

Referring to Montana and Wyoming and the use of waters of nonnavigable streams, Mr. Justice Holmes said, in Bean v. Morris, 221 U.S. 485, 31 Sup. Ct. 703, 55 L. Ed. 821: The doctrine of appropriation prevailed in these regions probably from the first moment that they knew of any law, and has continued since they became territory of the United States and so in Colorado. That rights may vary and be adjusted somewhat to the imperative necessities of natural conditions was also exemplified in Clark v. Nash, 198 U.S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171, and Strickley v. Mining Co., 200 U.S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174. Commonly known as Colorado doctrine, the waters of natural streams in Colorado were subject to state regulation, and may be appropriated to beneficial uses for domestic, agricultural, and manufacturing purposes. That was the prescribed order of preference in case of deficiency. The laws of Colorado were designed to prevent waste of a most valuable but limited natural resource, and to confine the use to needs. By rejecting the common-law rule, they denied the right of the landowner to have the stream run in its natural way without diminution. He cannot hold to all the water for the scant vegetation which lines the banks but must make the most efficient use by applying it to his land. The case before us is exceptional, but complainant is not entitled to a continuance of the falls solely for their scenic beauty. The state laws proceed upon more material lines.