judicial, consideration. Much of the common law of England pertains to the English form of government, and the privileges of castes, which are not at all applicable to our form of government; and these are the provisions of the common law, I presume, the legislative assembly had in view in the enactment above referred to as inapplicable. It seems to be contended, by the court below, that the natural wants of man, and the physical and climatic conditions of this Territory, have of necessity changed the common law upon the subject of riparian proprietors, or that these show that that law is inapplicable, in part at least. And it was held by the court below that, in accordance with the demands of our section, the common law was so modified that any one, living upon the banks of a running stream, as a riparian proprietor, can divert the waters thereof, for the purposes of irrigation, to the extent of the land he cultivates; and that he who is nearest to the source of the stream shall have, by virtue of his position, the right to first divert the waters of the same, to the exclusion of those below him thereon, if necessary to irrigate his land, even though those whose lands are nearer the mouth of the stream should have occupied them for years, and spent large sums of money in improving them and making a homestead thereon, prior to the fortunate settler above them. Surely the climatic and physical conditions of this country cannot be such as to create a law so at variance with natural equity and so fatal to the improvement and prosperity of our best agricultural districts. It must be apparent to all that the best agricultural lands in this Territory are not at the sources of the streams. Our broad valleys, as a rule, are better adapted by nature for settlement and agriculture than our narrow and rocky canons and mountain gorges. If we were called upon to say what were the necessities of this country, in regard to the use of water for the purposes of irrigation, we should reply that there was a demand that water should be used for that purpose, and that the considerations of the general welfare of the country and the principles of natural equity should guaranty to the prior appropriator of water

for such use the first right to the use of the same, to the extent of his necessities for domestic purposes, the quenching of the thirst of himself or animals, and for agricultural purposes. We can see no reason why, if the common law is to be changed by the considerations above named, it should not be changed to suit the wants of the country and in accordance with the principles of equity. We hold, however, that a law that is a part of a system of laws which our legislative assembly have adopted cannot be annulled or varied by a court, through any such considerations.

In the second place the common-law, upon the subject of riparian proprietors, is of a general nature.

In the third place, has this law been repealed or modified by the act of the legislative assembly or by act of congress? The congress of the United States, by an act approved July 26, 1866, entitled "An act granting the right of way to ditch and canal owners over the public lands and for other purposes," provides "that whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes aforesaid, is hereby acknowledged and confirmed.'

If the right to the waters of Prickly Pear creek have accrued to and become vested in the plaintiffs by priority of possession, and the right to the same has been acknowledged and recognized by the customs, laws, and decisions of the courts of this Territory, then there is no doubt but that the common-law doctrine, in relation to the rights of riparian proprietors, has been changed. It is not denied in the answer but that the plaintiffs have appropriated a portion of the waters of the said creek. The plaintiffs must recover, if at all, upon their right of appropriation. They have based their right upon this, and not as riparian proprietors. Ever since the settlement of this Territory, it has been the

custom of those who settled themselves upon any portion of the public domain, and devoted any part thereof to the purposes of agriculture, to dig ditches, and turn out the waters of some stream to be used to irrigate the same. This right has been generally recognized by our people. It has been universally conceded that this was a necessity in agricultural pursuits. So universal has been this usage that I do not suppose there has been a parcel of land to the extent of one acre cultivated within the bounds of this Territory that has not been irrigated by water diverted from some running stream. Both plaintiffs and defendants recognize this custom and the necessity of the same. Both are diverting water from the Prickly Pear creek for this purpose. If a practice so universal, and which has so long prevailed, does not establish a custom, it would be most difficult to do so. There have been but few disputes up to this time upon the subject of the use of water for the purposes of irrigation, and in not one of these, as far as we are informed, has the right to devote water to such a use been denied. It may safely be asserted the right to appropriate water for the purposes of agriculture have been recognized and acknowledged by the customs of this Territory.

In the second place, has this right been acknowledged and recognized by law? The first legislative assembly of this Territory passed an act upon the subject of irrigation. The first section of that act is as follows:

"That all persons who claim, own or hold a possessory right or title to any land or parcel of land within the boundary of Montana Territory, as defined in the organic act of this Territory, when those claims are in the banks, margin or neighborhood of any stream of water, creek or river, shall be entitled to the use of the water of said stream, creek or river for the purpose of irrigation, and making said claim available to the full extent of the soil for agricultural purposes."

The second section provides for the right of way for the construction of ditches, for the purpose of taking water out of a stream, creek or river for the purposes of irrigation. See Bannack Stat. 367, §§ 1, 2.

This statute was in force at the time the plaintiffs made their appropriation of water, and at the time the act of congress above referred to became a law. This statute, as far as it could, established and recognized the right of appropriation of water for agricultural purposes. Of course it could not establish this right as against the general government, or any person claiming thereunder. But as against any other parties the plaintiffs would have the right to the use of any water appropriated for that purpose if they are prior appropriators. As far as the legislative assembly of Montana had the power, they repealed the common-law doctrine in regard to riparian proprietors. If it is claimed that this statute does not recognize the doctrine of "prior in time, prior in right," the answer to this is, that when the law gives a man the right to divert water from a stream to irrigate his land to the full extent of the soil thereof, and in pursuance of this law he goes and digs a ditch, or constructs machinery for the purpose of taking water from a stream for this purpose at great expense, the principles of equity come in and say that no other man can come in and divert this water away from him. That he is prior in time in availing himself of the benefits of such a statute, and his rights are prior to any subsequent appropriator. It is claimed by the respondents, and it would appear was held by the court below, that this statute had been decided to be void as in conflict with the organic act of this Territory. The decis ion referred to did not hold that the whole of this statute was void, but only a portion of it. The statute conferred upon certain officers, called commissioners, the right to apportion the water of any creek "having reference to the legal rights of the parties." This court held that this conferred upon these commissioners the power to determine what were the legal rights of the parties, that this was a judicial power, and that the judicial power of this Territory was vested in certain courts by the organic act, and that our legislative assembly had no authority to confer any portion of it upon the commissioners provided for in that act. The declaring of certain provisions of a statute void will not VOL. I.-83

certainly have the effect of declaring all of the provisions of a statute a nullity. One part of a statute may be good and one part bad. We can see no reason for holding any other portions of that statute void at this time than were declared such by the decision referred to. It was a rightful subject of legislation to repeal or modify the doctrine of riparian proprietors in this Territory so far as the same affected the possessory rights to the soil thereof. The fact that this law was subsequently repealed does not affect the decision in this case. The rights of the plaintiff had become vested and had accrued before that repeal. The repeal of a statute will not destroy vested rights. Another act recognizing the same right was enacted in its place. I hold, then, that the law of this Territory did recognize and acknowledge the right to the use of water for the purposes of irrigation, and that it recognized it in the prior appropriator, to the extent his soil could be devoted to agriculture and no further.

Thirdly, has this right been recognized and acknowledged by the decisions of the courts?

In California the courts have sustained the rights to appropriate water for mining purposes. The courts of this Territory have followed and repeatedly approved of those decisions. The legal grounds for sustaining such a right have been based upon the view that the unsurveyed lands of the United States, upon which any community settles, must be treated as belonging to no one. Hence, the one who first appropriates any portion thereof, or incident thereto belonging, for a beneficial purpose, would become the owner thereof until the general government, or some one claiming thereunder, should assert title to the same. The right of the first appropriator to unowned property has always been recognized and protected by the common law. Of course this right can be regulated by law. The California decisions hold that there is no difference between the appropriation of water for mining and milling purposes. Ortman et al. v. Dixon et al., 13 Cal. 33; McDonald & Blackburn v. The Bear River and Auburn Water & Mining Company, id. 220.