Where streams flow through more than one state, it will be
presumed, in the absence of legislation on the subject, that each
allows the same rights to be acquired from outside the state as
could be acquired from within.
The doctrine of appropriation has always prevailed in that
region of the United States which includes Wyoming and Montana; it
was recognized by the United States before, and by those states
since, they were admitted into the Union, and the presumption is
that the system has continued.
In this case, an appropriation validly made under the laws of
Wyoming is sustained as against riparian owners in Montana.
159 F. 651 affirmed.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This suit was brought by the respondent Morris to prevent the
petitioners from so diverting the waters of Sage Creek in Montana
as to interfere with an alleged prior right of Morris, by
appropriation, to 250 inches of such waters in Wyoming. Afterwards
the other respondent, Howell, was allowed to intervene
Page 221 U. S. 486
and make a similar claim. Sage Creek is a small creek, not
navigable, that joins the Stinking Water in Wyoming, the latter
stream flowing into the Big Horn, which then flows back northerly
into Montana again, and unites with the Yellowstone. The circuit
court made a decree that Morris was entitled to 100 inches miner's
measurement, of date April, 1887, and that, subject to Morris,
Howell was entitled to 110 inches, of date August 1, 1890, both
parties being prior in time and right to the petitioners. 146 F.
423. On appeal, the findings of fact below were adopted and the
decree of the circuit court affirmed by the circuit court of
appeals. 159 F. 651.
It was admitted at the argument that, but for the fact that the
prior appropriation was in one state, Wyoming, and the interference
in another, Montana, the decree would be right so far as the main
and important question is concerned. It is true that some minor
points were suggested, such as laches, abandonment, the statute of
limitations, etc., but the findings of two courts have been against
the petitioners upon all of these, and we see no reason for giving
them further consideration. So we pass at once to the question of
private water rights as between users in different states.
We know no reason to doubt, and we assume, that, subject to such
rights as the lower state might be decided by this Court to have,
and to vested private rights, if any, protected by the
Constitution, the State of Montana has full legislative power over
Sage Creek while it flows within that state. Kansas v.
Colorado, 206 U. S. 46
206 U. S. 93
Therefore, subject to the same qualifications, we assume that the
concurrence of the laws of Montana with those of Wyoming is
necessary to create easements, or such private rights and
obligations as are in dispute, across their common boundary line.
Missouri v. Illinois, 200 U. S. 496
200 U. S. 521
Rickey Land & Cattle Co.
v. Miller & Lux,
Page 221 U. S. 487
218 U. S. 258
But with regard to such rights as came into question in the older
states, we believe that it always was assumed, in the absence of
legislation to the contrary, that the states were willing to ignore
boundaries, and allowed the same rights to be acquired from outside
the state that could be acquired from within. Mannville Co. v.
138 Mass. 89; Thayer v. Brooks,
489; Slack v. Walcott,
3 Mason, 508, 516; Stillman v.
White Rock Mfg. Co.,
3 Woodb. & M. 538; Rundle v.
Delaware & Raritan Canal Co.,
1 Wall. Jr. 275,
55 U. S. 14
Foot v. Edwards,
3 Blatchf. 310. See Wooster v. Great
Falls Mfg. Co.,
39 Me. 246, 253; Armendiaz v.
54 Tex. 623; State v. Lord,
16 N.H. 357;
Howard v. Ingersoll
, 17 Ala. 780, 793. There is even
stronger reason for the same assumption here. Montana cannot be
presumed to be intent on suicide, and there are as many if not more
cases in which it would lose as there are in which it would gain,
if it invoked a trial of strength with its neighbors. In this very
instance, as has been said, the Big Horn, after it has received the
waters of Sage Creek, flows back into that state. But this is the
least consideration. 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. It was recognized by the statutes of the United States,
while Montana and Wyoming were such territory, Rev.Stat. §§ 2339,
2340; Act of March 3, 1877, c. 107, 19 Stat. 377, and is recognized
by both states now. Before the state lines were drawn, of course,
the principle prevailed between the lands that were destined to be
thus artificially divided. Indeed, Morris had made his
appropriation before either state was admitted to the Union. The
only reasonable presumption is that the states, upon their
incorporation, continued the system that had prevailed theretofore,
and made no changes other than those necessarily implied or
Page 221 U. S. 488
expressed. See Willey v. Decker,
11 Wyo. 496; Smith
24 Mont. 20.
It follows from what we have said that it is unnecessary to
consider what limits there may be to the powers of an upper state
if it should seek to do all that it could. The grounds upon which
such limits would stand are referred to in Rickey Land &
Cattle Co. v. Miller & Lux, 218 U.
, 218 U. S. 261
So it is unnecessary to consider whether Morris is not protected by
the Constitution, for it seems superfluous to fall back upon the
citadel until some attack drives him to that retreat. Other matters
adverted to in argument, so far as not disposed of by what we have
said, have been dealt with sufficiently in two courts. It is enough
here to say that we are satisfied with their discussion, and
confine our own to the only matter that warranted a certiorari or
suggested questions that might be grave.