In the arid states, the common law doc trine of riparian rights has been repudiated and the law of appropriation prevails. It has been there established as a rule of property governing riparian land that mere priority of occupation or appropriation gives rights superior to those of the riparian own er in the beneficial use of the waters and the beds of streams, whether such appropriation is made upon, or adjacent to, riparian lands owned by the government or those passed to private owners. Not all riparian rights, as such are defined in the common law, are lost by such appropriation. But, generally speaking, the riparian right law does not pre vail in those jurisdictions. The custom of appropriation became a law of property in those states, and as such has been confirmed by congress and the federal supreme court, as applicable to lands there situated, the rule of law having been established by the local jurisdictions and having become the common law of those states through adjudi cations of their own courts ; Act Cong. July 26, 1866 ; Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674 ; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727 ; Isaacs v. Barber, 10 Wash. 124, 38 Pac. 871, 30 L. R. A. 665, 45 Am. St. Rep. 772 ; Ft. Morgan L. & C. Co. v. Ditch Co., 18 Colo. 1, 30 Pac. 1032, 36 Am. St. Rep. 259 ; Boquallis L. & C. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. 493, 53 L. Ed. 822 ; U. S. v. Irrig. Co., 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136.
Although this power of changing the com mon law rule as to streams within its do minion undoubtedly belongs to each state, yet two limitations must be recognized: First, that in the absence of specific author ity from congress a state cannot by its leg islation destroy the right of the United States as the owner of lands bordering on a stream to a continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government prop erty. Second, that it is limited by the su perior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words the juris diction of the general government over inter state commerce and its natural highways vests in that government the right to take all needed measures to preserve the navi gability of all navigable water-courses of the country, even against any state action ; Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.
One who diverts water from a stream for domestic and irrigation purposes must, in order to protect his appropriation, use a reasonable degree of care to prevent loss by evaporation and seepage in conveying it to the place of use, since the law will not countenance a diversion of a volume many times greater than that which is actually consumed ; Sterling v. Ditch Extension Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 238. While a prior appropriator of water can claim only the amount which is neces sary to supply his needs, and can permit no water to go to waste, he is not bound to adopt the best means for utilizing the water or take extraordinary precautions to prevent waste. He is entitled to make a reasonable
use of the water according to the custom of the locality,- and so long as he does so other persons can 'not complain of his acts.' The amount of water required by an appropri ator should be determined by reference to the system used, although it results in a waste of water which might be avoided by the adoption of another system; 3 Farn. Waters & Water Rights 675 ; Rodgers v. Pitt, 89 Fed. 420. But where an appropriation has been made, and the original method of conveying the water was direct and economical, a change of method whereby the waste is mate rially increased cannot be made, to the detri ment of a subsequent appropriator ; Roeder v. Stein, 23 Nev. 92, 42 Pac. 867. He is not liable for water lost by absorption and evap oration, which is necessarily so lost in a well constructed ditch or flume which is kept in good condition ; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Sterling v. Ditch Extension Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 238.
The most essential element of an appro priation of water is application to a bene ficial purpose ; North Fo'rk Water Co. v. Med land, 187 Fed. 163.
Submerged Land. When land is gradually submerged by a river the former owner re tains no rights in it, and the owner of the river bed acquires the absolute title ; Wal lace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317. Where the plaintiff's lot was formerly separated from the Mississippi river by another lot, and he offered to prove that the lot had been gradually but 'totally sub merged by the river, but had afterwards gradually emerged, forming the land in dis pute, it was held that the plaintiff could acquire no land by accretion beyond his original boundary ; Stockley v. Cissna, 119 Fed. 812, 56 C. C. A. 324 ; to the same ef fect; Ocean City Ass'n v. Shriver, 64 N. J. L. 550, 46 Atl. 690, 51 L. R. A. 425. See 16 Harv. L. Rev. 527; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344.
A grant bounded by a navigable water course extends only to high-water mark ; but one bounded by a non-navigable stream extends to the middle thereof ; Ex parte Jen nings, 6 Cow. (N. Y.) 518, 16 Am. Dec. 447; Ball v. Slack, 2 Whart. (Pa.) 508, 30 Am. Dec. 278, 286. See Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428 ; Haight v. Keokuk, 4 Ia. 199 ; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224. When an island is on the side of a river, so as to give the riparian owner of that side only one-fourth of the water, he has no right to place obstructions at the head of the island to cause one-half of the stream to descend on his side of the river, but the owner op posite is entitled to the flow of the remain ing three-fourths ; Crooker v. Bragg, 10 Wend. (N. Y.) 260, 25 Am. Dec. 555.