THE OMAHA DAILY BEE: THURSDAY, NOVEMBER 29, 1900.
9
THE GENERAL MANAGER'S CONTRIBUTION.
Hy HAMILTON 1'. FAIKMAN,
(Copyright, 1900, by H. P. Pnlrman.)
Wo had been on the road something over
week in nn official private car. The
aislncss part of the trip was over ami the
vcral ofuclals gave themselves up to
ards, checkers, stories and othtir amuse
ments during tho return Journey. Nearly
very one present had related soino thrill
ing adventuro which haa occurred to hlra
or como'withln his notice, but the general
manager. He had dono little In the way
of entertainment and had Joined but re
servedly in the laughter which somo ot thy
tales aroused. As we crossed the Missis
sippi Into Illinois ho In some manner got
possession of a magazine which held his
attention for somo time. Finally ho tossed
It upon the table and observed:
"Well, they may talk all they want to
about dispatchers, but In all my experi
ences 1 have seen but ono man who tilled
the bill In every particular. Ho wa3 the
man whom Old Poxey couldn't fire under
ny consideration. That man was Dobbs,"
ho went on, knocking the ashes off his
cigar. "He's general manager ot the Q-P
ystom now."
"Dobbs always was a railroad man. He
began with tho shovel wh they built tho
K. C. division of tho 1). I C, and when
I met him wo camo togt ner In the dis
patcher's oinco. Ho worked tho second
trick and I tried the third. Hut with all
of bis ability he was a peculiar cuss and
la today. Ho never cared whether he
worked six, eight or fourtocn hours
could relievo hltn whenovcr I chose, It was
11 ono to him, When I put In an appear
ance ho would say something Uko this;
'Had to hold 17 at Mlnden can't get ,ln
on tho siding at Dlalr 'twill lay her out
t5 minutes bo good to her against 2421
Is light,' and take his hat and leave the
office.
"The dispatcher, a man named Marshall,
who died In Mexico a good many years
ago, had learned that he could rely on
Dobbs as he could not do on any ot tho
rest of us. Not a slnglo man on the road
knew the division ns Dobbs did. Every
Inch ot grade, tho length ot every siding,
how many curs wero standing on tho sid
ings, and In fact every detail of the road
and trainmen was catalogued In his mind
Ho knew what engineers ho could depend
upon to make up lost time; Just what could
be expectod of cacti and ovcry crew.
"Ho always called tho dispatcher Billy
with an easy, assured familiarity. 1 re
member one day that 'Dllly' was figuring
out a meeting point for a long local freight
against number 4, the limited. Dobbs was
looking over bis shoulder when ho finished
tho order.
" 'Never do, Dllly. You'll lay out No
27 can't got In at Illrdon fourteen emp
ties on track there.'
" 'She'll have to stay where she Is, then,'
returned the dispatcher, crumpling the
order In his hand.
" 'Lay her out thirty minutes," repllod
Dobbs. 'Let's see. Sho's pulling twenty
three loads and twenty-one empties Qve
scraplron. Let her leavo ten empties and
the Bcraplron at Flat Creek and pick up
tho empties at Dlrdun. Scraplron ain't
perishable Joncs'll pull her ovor all right
and Durns' crow will handle tho cars
And he went on whistling. Not another
man on the division wou.d have dared oven
to criticise 'Dllly,' let alone dlctato orders
to him.
"Out that wasn't what I started to tell
bout. Dobbs, with all his good qualities,
hud ono very bad fault. About onco
month .ho would, absent himself from tho
oftlco ono or two and sometimes throe days.
Ho seldom said nnythlng to any one, but
would simply board No. 0 and pull out
Ho Invariably returned on No. 4.
"On theso occaslous 1 was usually trans
fered to his trick and a new man put In
my place.
"Well, ono day In January, Just as the
Ico began to come down from the north at
the rate of from ten to twenty extra trains
a day, a messenger came for ma to report
In Dobbs' place. When I arlved at tha
office the division superintendent and the
dispatcher wero Just finishing what had evi
dently been an animated conversation.
" 'Ho's the best man that ever worked
a wlro out of this ofllco or any other, for
that matter,' tho dispatcher was saying.
'When he's hern there Isn't the first thing
to worry nboutl'
" 'Yes, I know, but when he Isn't here
there's enough to worry six men, for you
novcr know when he's going or what time
he's coming back. Put Patterson in for
the third trick and keep an eyo on him for
a day or two. When Dobbs comes bach
tend him to me,' and the great man stalked
out of the office.
" 'It's all up with Dobbs, I guess,' re
marked the dispatcher as he gave roo
hurried word plcturo as to how tho trains
were running at that moment.
"Extras north, extras south, extras In
one, two and three sections. It was cer
tatnly the most nervo-trylng day that
ever had put In. I managed to get through
with little discredit, however, and turned
tho devlBlon over to young Patterson in
fairly good shape. He got through all right
aud everything seemed to be working
smoothly.
"Tho next night I took a run down to th
Junction to see a friend there. Our wires
all camo Into that oince, and I listened to
Pattorson as he reeled oft ordurs by th
yard. I could tell that bo was somewhat
nervous, but thought It was only stage
fright. Dut Instead of regaining his com
posure ho kept getting moro rnttlod than
over, Suddenly I heard something Uko thl
ticked off to him:
" 'First nnd second sections of extra south
and second section ot extra north and firs
section ot No. 17 bore. Want orders.' My
hair fairly roso on end. How on earth h
had managed to get all those, trains nt a
little one-horse station , without a wreck
was n wondor to me.
"I grabbed my hat and flow across tho
town for tho ofllco. Whon I got there I
saw Patterson sitting at tho key white ne
a ghost. Ho was sondlng an order 'No.
49 take siding at Rollins to raeot No. 4' he
was saying. Somo ono broko hlra and Bald,
'0, h ; Itolllns siding wont hold half of 49
would havo to back two miles to gel
over the hill.'
"I glanced At tho train sheet. It was
In a hopoless Jumble. Some of the trains
had not beon recorded for two hours had
Jumped clean off tho earth, so to speak. The
dispatcher camo In on a run at that moment,
"The man who broke Patterson now had
tho wire hot. Orders wero flyluB In rapid
succession. The dispatcher reached for the
key and broke In. 'Wh ' 'Keep out I'm
busy,' camo bnck the reply. Ho then
glanced at tho train sheet. One glance was
sufficient
" 'Where's 12?' he gasped.
"Patterson only shook his head. No. 12
was a passenger. The dispatcher then
turned to ma I shook my head also.
"The sounder was rattling at a great rate.
Repeat on No. 5,' we heard ticked oft.
Flvo'a busy.' 'Tako It anyhow,' came back
the quick reply. Five was a commercial
wire.
"To our astonishment tho order was re
peated and 0. K'd over fi, while another
was being sent over tho dispatcher's wlro.
I looked over across the room at the dis
patcher. His features wore drawn and
wrinkled and a cold sweat seemed to stand
out on his brow. A whiter man I never
expect to soa. He was listening Intently to
the Instruments. Suddenly his fact relaxed,
his eyes flashed and he reached across the
desk for his key.
'Hollo, Dobbs,' he called.
'Keep out, Ollly, I'm too busy, came
tho reply.
"Dllly settled back Into a chair with a
sigh of relief. Ills elbows rested on the
arms of the chair and ho folded bis hands
In front of his face. Slowly tho color re
turned t hit face. He seemed half asleep.
At tho first lull of tho sounder, howtver, he
reached for the key again.
" 'Hello, Dobbs, whero aro you?' ho asked.
" 'Down tho lino aways,' came the reply.
It's my trick, Hilly, don't worry, 'ovcry
wheel Is turning, but No. 12. Whero was
sho last?'
" 'Don't know. Off tho sheet.
" 'I'll nnd her. Ooodby, llllly,' replied the
Incorrlglblo Dobbs.
"Wo heard him trace her from station
to station until he found she had left Mar-
ball at l:40. It was then 11 o'clock. North
from Marshall there va3 no night operator
for thirty miles. Ho called tho man at
rlncovlllo.
" 'Havo you see No. 12?'
" 'No,' was tho reply.
" 'do out and sco If you can seo her,'
camo tho order.
'No, sbe aln t In sight,' camo next.
There was u pause.
" 'Gllfcon, Conductor. Extra south.
" 'Leavo train at Prlncevllle tako engine
and crew, look tor No. 12 south of Prlnce
vllle,' was the next order.
No. 12 was found about halt way be
twiea-the two stations with h crippled en
gine. The crow wore chasing about tho
lllage like mud men in search of tho ugent
Iiut ho was not found.
"i iooKeu at tne dispatcher. Ho was
aclecp this time and no mistake. Patter
son sat like a man in a stupor, his bond
btnt forward till his chin rested on his
white shirt front. I woke the dispatcher
and we carried blm away to the hotel. Ho
managed to pull through, but he had lost
all dcslro to gain wealth and glory In the
employ of a railroad und drifted Into the
mercantile business and may bo living yet
for all I know.
Dobbs returned tho next day and after
a stormy time with tho superintendent ro
urncd to his old place. The only remark
he made as ho took his place tho following
day was 'Poor Patterson.'
'Where have you been, Dobbs?" In
quired the dispatcher.
" 'Just away on a short wedding trip,
was tho reply.
"We soon found that ho was telling tho
truth. He had fallen In lovo with a girl
agent away down the line at Cook'a Dcnd.
It was a small, out-of-the-way station and
his monthly pilgrimages had been to this
place. On this particular trip he had gono
with the Intention of bringing Miss Darnes
home with him. Sho afterwards told me the
story.
' 'You see,' she said, 'Dob wasn't tho
youngest fellow In tho world and ho was
afraid of being what he calls "guyed" If
the men at tho offlco knew about It. Ho
actually used to hide when the trains went
through. You sco tho night we wero mar
ried I managed to forgot something at the
depot and we went back together to get It
While wo wero there ho discovered what
trouble the now man was In and ha helped
him out. Ho worked hard, for ho had to re
member everything, having no tlmo to
mn ko a train sheet. Things went pretty
easy after ho found 12. That worried him
a gn-l deal. When ho was In a hurry
O. K'd. the orders over No. 5.' "
And that was the 'sum total of 'tho a
D.'s contribution to our entertainment dur
lng tho entire trip.
LONG UltAWN-OUT LAWSUITS.
Ex
Then Mr. Utter would open a small aper-
turo In tho end ot tho box, to which the
bees would crawl In order to escape. Dut
prlnklcd on tho floor of the box ovor
which tho bees passed was a large quan
tity ot flour. Tho bees, all sticky with
honey, would coat thomselves liberally with
flour and then stagger out of tho box and
fly away homo, looking Uko whlto miller
moths. Mr. Utter would havo a bunch ot
witnesses on hand and they would follow
easily tho white bees until they could see
them fly Into the hives In J. W.'s back
ard. ThUB was the Identity of tho bee
thieves accurately determined, and the
prospects of their owner being nblo to es
tablish an alibi for them removed.
Two hundred and fifty dollars have al
ready beon spent by Kentucky litigants
over two hogs worth $10. Trigg Mooro and
Will Erwln, two farmers living near Stotts
vllle, Ky got Into n dlsputo as to their
ownership, A suit for tho recovery of the
hogs was Instituted by Mooro at Galncs-
Ulo and n verdict gained. This suit cost
$100. Erwln appealed to tho quarterly
court and two moro lawsuits wero had.
both Juries disagreeing, and tho two suits
costing J1G0. Uoth litigants aro deter
mined to fight tho caso to tho end, and tho
strugglo In tho courts over thoso two $10
porkers Is liable to continue, for a long
time if it does not terminate as the nolgh
bors fenr It will, .n a bitter feud that may
cost something besides money.
Mom New ork Is reported a lawsuit that
originated In a light ovor a pinto of hash.
Lawyer Michael Duffy nppoared as com-
cotnplalut In court against Edwnrd nouter,
who owns a restaurant. Itcuter says Duffy
ato a piato of hash and did not pay for It
Duffy eald that Router did not nsk for cay.
tut Bcomod o want to get satisfactory out of
his hldo, as tho restaurant keeper reached
ovor without warning and Btruclt him over
tho head with a chair leg.
W. E. Lyons of Iola, Kan., hns already
Bpont ?20 to recover 40 cent3, nnd will spend
over $40 moro beforo tho final disposition of
tuo caso now pending Is mado. T. F. Strlck
land, tho defendant, had a horso pastured
in icons' pasture lot. He paid for two
months pasturage, but did not take hi
norse away wiion he Intended, owing to
sickness. Tho horso remained three days
longer in Lyons' lot, for which Strickland
tondered to Lyons 40 cents In payment.
Lyons demanded 40 cents moro nnd refused
to lot Strickland tako his horso until the
monoy was paid In the lower court Strlck
land won tho case, but Lyons took an auDeal
and now It will bo trlod by a Jury In tho
district court. It will tnko a day at least
to try tho ense, and tho cost of tho Jury
mono will do $24.
The amount Involved In a lawsuit at Guth-
ne, oki., was evon lo3S than that of
tho Lyons suit for 40 cents. Two citizens of
Guthrie are at law over 5 cents. Tho de
fendant won tho first suit, but tho Judge
ruica mat tho 148 costs should be shared by
both parties to the suit. Now tho plaintiff
nan taiten nn nppeal.
At Sharpsburg, To., Estolla D. Wnener hns
brought suit against the Consolidated Car
company for $10 damages dono to a dress she
was wearing and which was ruined by grease
on mo noor ot a street car vncd by the de
fondant company, and on wnich tho plaintiff
was a passenger.
WIIEIIK TUB SU.V IS MOVING.
Dispute About TrlUca Pile Up
penara In the Courts.
Exchanges havo ot lato told the stories
ot many queer lawBUlts. It seems tncre
aro to bo found In every community people
who are only too ready, ut the slightest
opportualty to rush into court with their
troubles, even though It they were to win
their suit the bills of their lawyers would
acre than equal any money componsa
tlon the courts might award them. In
the majority of tho cases reported the
question of money reimbursement Is not
so much considered as Is the desire to win
by a favorable decision of the courts
moral triumph over the other side.
Dut In other cases the plaintiffs In law
suits aro after money. They consider that
they have beon cruelly wronged and they
want to make tho people who wronged them
"sweat for It." For Instance, there la tho
case of John Bunch, who Is suing the town
ot La Plata, near Macon, Ua. Mr. Dunch
was arrested 'On the 22d day of last August
and incarcerated In the calaboose ot La
Plata. While he was In Jail a swarm of
honeybees, mistaking John's face tor a red
clever patch, alighted upon It and when
he tried to brush them away the honey
bees retaliated upon Mr. Dunch by stinging
him several dozen times. Mr. Dunch
swelled up so from tho offects ot the bee
stings that be could not bo carried out ot
tho door of tho Jail und a section of the
wall of tho calaboose had to be removed
to admit of the carrying to tho hospital
of tho lacerated victim of the beo-lynch-Ing.
Mr. Dunch was labored with for sev
eral days by doctors, who long despaired
of his life. He ways that being locked up
In tho La Plata calabcoso, as ho was on
that fatal day In August, ho had no op
portunity to cscapo from tho terrlblo on
slaught ot tho honeybees and that there
fore tho town Is morally and financially
reoponslble for tho assault.
Another lawsuit concerning bees Is re
ported from Amity, Orange county, N. Y.
In this town llvo two brothers, W. H.
Utter and J. W. Utter, who, in spite of tho
name of their beautiful village, aro not
living In accord. Tho plaintiff, W. II.
Utter, has 4,000 peach trees, whllo his
brother, whose place adjoins, has about
tho name number of busy honeybees. The
plaintiff In tho caso alloges that hta
brother's bees, following the Injunction
to "gather your Bweetness whllo you may,"
como over Into his orchard .and damage
his ripening fruit by drilling, boring, mak
ing, constructing and otherwise causing
numorouH and sundry holes In the peaches
and by stinging, sapping and sipping his
fruit to cause, it to rot and othorwlse to
perish whllo still hanging upon tho bough
and to the great financial loss of the said
W. H, Utter," aud for which ho brings his
suit for heavy damages.
In previous years J. W. Uttor, tho owner
ot tho predatory bees, has refused to listen
to the njaints ot his brother, saying that
the bees that wore robbing tho tatter's
orchard wero wicked bees that belonged to
other hives than his, Ho said his bees wero
honest bees and that they wero far too
Intelligent nnd trustworthy to go know
ingly In broad dayllRht and ptllago the
orchard of their owner's only and dearly
beloved brother.
Tho owner of tho peach orchard this year
prepared a simple device to prove that It
was the bees belonging to his brother that
ruined hl3 peach crop. Mr. Utter would
wait until several hundred bees were feast
ing on some ot his luscious fruit. Then
he would cautiously approach them with a
wlro gauzo sack which he would els1 ''own
over them, making the Insects pr'
Then the next Btep was to libera ho
bees Into a box In which there was a dish
of honev, on which they were permitted
to feed until they thought they had enough
plunder to carry homo to their own hives.
Orb of Day and the IMituetn Traveling
itiwnru i in- Apex.
Moro than a century ago. says Ponulnr
ocienco Aiontniy, air William Ilerschel was
able to fix roughly what wo call tho apex
oi me suns way in spaco, or the nolnt
among tho stars toward which that way
Is directed. Herschol found that a com
parison of old stellar observations scorned
to Indicate that tho stars In a certalu
part of tho sky wero opening out, as It
wore, and that tho constellations In the
opposlto part of tho heavens, seemed to ho
drawing In, or becoming smaller. There
can do nut ono reasonable explanation o
mis. wo must Do moving toward that
part or tho sky whero tho stars aro seDa
rating. Just so a man watching a regiment
of soldiers approaching will see at first
only a confused body of men. Dut as they
come nearer the individual soldiers will
seem to separato until at length each ono
is seen distinct from all tho others.
Hcrschel fixed the position of the apex
uw i yu1Ui ui i ob constellation Hercules
The most recent Investigations of New
comb, published only a few months ago,
oave, on me wnoie, verified Herschel
conclusions. Later Investigators bavo In
creased tho precision of our knowledgo
unui we can now say that the prcsont dl
rection or the solar motion la known withl
very narrow limits, A tiny circle might
do arawn on tne sky, to which an nstrono
mer might point his hand and sny: Yonde
llttlo circle contains the goal toward which
tno sun and planets aro hastcnlne todav
Even the speed of this motion has been
cubj ected to measurement and found to bo
RDout ten miles per second.
The objective point and tho rate of mo
tlon thus stated, exact scletice holds her
peace. Here genuine knowledge stops, aud
we proceed further only by tho aid of that
imagination which men of science need to
euro at every moment.
Dut let no one think that the sun will
ever reach the so-called apex. To do so
would romcan cosmlo motion on a straight
line, wniio every consideration of celes
tial mechanics points to motion on a curve
When shall we turn sufficiently upon that
curve to aetcct its tending? It Is a prob
lem that we must leavo as a rich In
horltaiice to generations that aro to fol
low us. Tho visionary theorist's notion o
a great contral sun, controlling our ow
sun's way In space must bo dismissed art
far too daring. Rut for such a central
sun wo may substltuto a central centor o
gravity, bolonglng to a groat systom o
winen our sun is but nn Insignificant mom
her. Then we reach n conception that has
lost nothing In tho grandeur of Its aim
pllolty nnd Ib yet In accord with tho proba
Diutics ot Boner mechanical science. W
ceaso to bo a lonely world nnd stretch ou
tno Donda or a common relationship t
yonaer stars within the flrmnmcnt.
nussiA'.s jiovi: ox tiiiiiut.
RRIGATION IN NEBRASKA
acts in the Cue Recently Decided by the
State Bupremo Court.
DOCTRINE OF RIPARIAN RIGHTS UPHELD
LckiiI llcrlevr of a Qtu-ntlon of Clrent
Importance to I'eople In the
Seml-Arlil Heuloii 1'iint
LcKlalittlou Annulled.
The citizens of Crawford desired to bring
water down through their ditch for do
mestic uso and also for Irrigation and
manufacturing. In June, 1891, ono oflholr
number mado a filing for a water rlsbt
and began tho construction of tho ditch.
ho ditch was commenced Just above tho
Fort Robinson military reservation and It
was necessary to construct It ucross tho
reservation In order to reach the village.
Shortly after tho work was begun It was
Interrupted by tho olllcer in command ot
the post, bocauso no license, had been ob
tained from tho secretary ot war to cross
tho reservation. Subsequently tbo llcenso
was obtained and tho work proceeded nnd
company was organized and tho canal
was so far constructed that water wao
turned Into It In April, 1S90.
An action was brought In tho district
court of Duwoa county for tho purpose of
adjudicating Whlto river that Is, deter
mining tho ordor In which thoso claiming
water rights would bo. entitled to divert
or uso tho water. All persons who had
filed claims undor tho act of 1889 with tho
county clerks nnd all who claimed rights
under the act of 181)3 by filing claims with
tho secretary of tho Stato Doard of Irrlga
tlon nud nil who claimed tho right to uso
tho water In any way woro raudo partleH
dofendaut. Tho plaintiff alleged priority
of right over all tho defendants. Two mill
owners woro Included with the other de
fendants. Tho plaintiff alleged that those
mills wero private mills and not for tho
use of tho public and that they had not
Instituted ad quod damnum proceedings
and hnd no right to maintain their dams.
Tho plaintiff claimed that tho Irrigation
act of 1877 and tho subsequent net of 1S8'.
and tho net of 1893 had changed tho law ot
riparian rights, so that tho owner of tbo
banks of a stream was not entitled to havo
tho full How of tho stream through his
premises. It was claimed by tho plaintiff
that the doctrine If riparian rights was
abrogated by the passage of tho first act, In
1877, as to all Innds belonging to tho United
States. In 1806 the congress of tho United
States puBsed an act which recognized the
right of tho pcoplo of a statu to take the
water running upon lands of the United
States nnd to use tho samo for agriculture
or mining and manufacturing purposes
This act also authorized tho protection of
such rights existing by local customs. Tho
original section reads as follows:
"Section 2339 Whenovor, by priority of
possession, rights to the uso of water for
mining, agricultural, manufacturing or
other purposes havo vested and accrued
and tho samo aro rccogttlzed and acknowl
edged by the local customs, laws and dc
clslons of courts tho possessors and owners
of such vested rights shall be maintained
nnd protected In the same and tho right ot
way for tho construction of ditches and
canals for tho purposes herein spoclfi d Is
acknowledged nnd confirmed."
Afterwards, this act of congress was
amended by section 17 of the net of July
9, 1870, to that patent granted for public
lands should bo subjeqtto ' vested and ac
crued water rights, or rights to ditches
that It was estopped to ask relief enjoining
the plaintiff from diverting tho water.
There was also an allegation In tho peti
tion that tho mill owners were threatening
to tear out the plaintiff's dam. (This the
friends ot Mr. Hall subsequently did.)
The plaintiff prayed for nn order re
straining tho defendants from Interfering
with the plaintiff's uso of Its dam nnd Inlet
ditch nnd Its means of diverting wntcr.
The plaintiff further prayed "that tho
Irrigation act of April 4, 1S93, Insofar ns
It assumes to confer Judicial powers upon
tho Slnto Hoard of Irrigation, shall bo
dcclnrcd to bo In contravention of tho
constitution of tho stato of Nebrnskn nnd
tho fourteenth amendment to the constitu
tion of the United Stntes of America."
Plaintiff also nlleged In tho petition that
there was not enough water In Whlto river
for domestic purposes nnd Irrigation nnd
to run, thu said nilllB, nnd tho plalutllt
prayed that tho mill owners, If found to
havo nny rights, should bo found to havo
rights second to tho claim of tho plaintiff,
and that if It should bo found that the
mill owners had vested riparian rights and
tho court should so determine then that
n Jury chould bo empnntled to assess their
damages and that tho damages might bo
adjudged ratably nnd nccordlng to tho beno-
flts conferred on tho sovernl priorities of
those vho diverted tho water for agri
cultural purposes.
SyllnlitiN of flic Court.
Tho second, third and fourth points of tho
syllabus prepared by the court aro as fol
lows:
2. Where tho Invalid portion of nn net
formed en Inducement to tho passago of
the rcslduo tho wholo act falls.
3. Ono cannot BucccoBfully rely upon n
Btatuto when he at tho same time Insists
that a material portion thereof Is un
constitutional, where it is obvious that tho
part claimed to bo Invalid formed nn in
ducement for tho passage of the remainder.
4. Chapter 93u, Compiled Statutes of 1897,
did u, i abrogate the common law rights of
riparian owners ns they theretofore ex
isted In tills state.
Tho last point nbovo cited, being in the
syllabus, Is binding upon tho court, under
the decision rendered In Holliday against
Drown, 31 Neb. 232. From this point wo
gather that It Ib tho view of the supremo
court of tho state of Nebraska that tho
doctrine, of riparian rights Is still In force
In this stato, notwithstanding all tho legis
lation upon tho subject of Irrigation. A
perusal of tho body of the opinion would
Boom to lend to tho same conclusion. It
therefore follows that thoro Is no power
upon tho part of tho owner of any ditch to
dlvrt tho water from any creek or river
In tho stato for tho purposes of Irrigation.
Tho doctrine of riparian rights Is that tho
owner ot th. banks of the stream Is en
titled to the full flow of the water In Ha
i.ntural channel, through his premises, un
diminished (u quantity and unimpaired in
quality. Tho conclusion Is that the owner
of any tract of land In tho stato of Ne
brnska, however small, Is entitled to the
full flow of tho voter In Its natural channel
througn his premises and that If nnv per
son nbnve him attempts to divert th, atcr
fr the purposes of Irrigation ho may bo
enjoined by the owner of tho land. It tho
court shnP continue to maintain this view
it means tho end of Irrigation In Nebraska.
Common I.imv Itluhtn.
Chief Justlco Norval, In his opinion, says
"We must conclude that whether this act
Is, or Is not. In derogation of any consti
tutional provision, the suit could not havo
been maintained, Insofar as It sought to
adjudlcato tho rights ot tho parties to tho
waters of this stream, unless tho common
law rights of riparian owners to an unin
terrupted flow of the water of a stream
through or past their realty does not ob
tain In this stato. It Is conceded that if
and reservoirs used in, connection with such the common law principles, applicable to
wator rights as may, have been acquired riparian proprietors, exists, then Hall had
under, or recognized by the ninth section tho right, nt least by prescription, to the
of tho act. of which this Is amendatory." full flow of tho watar of this stream Into
1G Stat. C. 235, Sec. 17. , his mtllpond. Dut It Is contended that this
Plaintiff contended that this was an In- common law doctrine Is not In force hero;
vltatton to tho several states to npproprlnto, 'first, because It Is not applicable to'condl
by custom, or by legislative enactment, the Hons that obtain In this Jurisdiction, nud
running water on. tho public lands of tho second, because It was abrogated by the
tl. - -"- J
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'OS,orrtU'r
ICURES
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oiomac
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im hnmU of the bettttihyslclans. Some
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7T hero art) rarlous preparations used to aid dilution.
Troiibl
umn Jw1 n illtrnaf. turh fit H 4 Fa liftttl (11 OTP At. IlllltltllCDa
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APOLIO
United States.
Irrigation I.cKlalatlon.
This stato, In 1877, accepted this offer
of the general government, by the passage
of tho following act, contained In tho Com
piled Statutes of 1881, at page 159: "Sec.
158. Any corporation, organized under the
laws of this stato, tor the purpose of con
structing and operating canals for Irriga
tion, or wator power purposes, or both, may
acqutro a right of way over or upon any
lands for the necessary construction of such
canal, Including ilama, reservoirs, aud all
other necessary adjuncts to said canal, In
tho same manner ns railroad corporations
may now acquire right of way for the con
struction of railroads, and the provisions
of law applicable to acquiring right of way
by railroad corporations aro hereby de
clared to bo appllcablo to corporations, for
the construction of canals for Irrigation, or
wator power purposes, or both,
"Sec. 159. Canals constructed for Irrigat
ing or water power purposes, or both, nro
horeby declared to bo works of Internal Im.
provoment, and all laws appllcablo to works
of Internal Improvement nro hereby de
clared to bo applicable to such canals." It
was contended by plaintiff that thoso sec
tions, by necessary Implication, recognized
tho right of the people to divert tho wator
from running stroams for tho purposo of
Irrigation, and that as tho right to dlvort
tho water and apply It to Irrigation could
not exist nt tho samo tlmo as the right of
tho owner of tho banks of tho stream to
havo tho full Mow of the water through
his premises, that tho doctrine of riparian
rlghtB had been abrogated by these sections,
Theso sections recognized tho right to con
struct canals for Irrigation, or water power
purposes, nnd necessarily Implied thn rioto
to fill them with wator, and tho right to
fill the canal with water carrlmi with it
Corrranomlritt Wlio grew Thrrlu
!xril- Peril to ICiikIIxIi Hnmirc.
Is thu vail of mystery that has hung so
lonjf over the land of Thibet nnd its Ijxmns
to bo nt Inst swept asldo and Lhasa to bo
entered In the Itinerary of tho commercial
traveler for Manchester tevtil.xi? i,
certainly seem so from the recent stntemrnt
ot a correspondent, says the London Ex
press. Ua says:
'Tor the moment wo frankly admit that
Ituosla in Its secret, stealthy way has
stolen a march upon ub and scored a point
The government of India, by Its oatenta
tloiw neglect of all cjuestlons beyond tho
northern frontier of the peninsula, has con
tributed to Russia's success. When It al
lowed Its agent nt Knshgar. Ocorgo Mr.
i..n moy, iu uu i.uiinicii.iy avnrsnnciowed ny
tho Hiwslan consul general, Mr. Petrovsky.
It might have known that Russia would
never rest satisfied until Its Influenco was
supreme throughout Chinese Turklstnn and
from the time of donernl Prejevalsky It hns
never concealed Ub ambition to pierce the
Thibetan mystery.
"Confident In the security supposed to be
conferred by the Himalayas tho government
of India has remained Indifferent to the
schemes Imputed to Russia; now that thoy
havo mode n step In the direction of reali
zation It mny, perhaps, see reason to re
view the situation."
Ktghteon months ago an accredited niis.
ulan mission entered Lhasa. This la not al
together so extraordinary ns the result, for
"bo supreme and secluded a potentate as
inij wuiui i.aniu nun uecn induced to send
a return mission, which wns recently pre
sented to tho czar nt I.lvadla.
Tho writer, after eumirnr un thn ilnn
of allowing Russia to get n firm footing
thus on our Indian frontier, concludes;
"Tho success of Russia In establishing some
sort of dlplomntla rolatlona with the Dalai
Lama reveals nil Its perilous possibilities at
a flash. Wo nre not going to allow an
Abyssinia to be created at the gates of
liengai, or mo raiiure or Jiunza to be
obliterated In a triumph at Lhasa." And
with this most thinking people will agree.
tho right to tako the water out of tho croek
or tho river, and If the wator was talton
out of tho creek, or tho river, it could not
run mrougn tno naturnl channel on the
premises or tuo man who claimed to own
tno nanus or tho stream.
Contention of I'lnlntlrr..
As tbo law passed by tho legislature of
this state took effect In 1877 It was claimed
by the plaintiff that tho passage of this
law was notlco to any ono who mleht nottin
upon tho public lands of tho United States
in rveurnsKa after that dato that ho took
tho land, If located upon tho banks of a
stream, subject to tho right of nnv nerr.on
above him, who might seo fit to do so, to
take water out of tho Btrcara and use It
tor irrigation purposes.
Hall, the mill owner, In whoso favor tho
decision of tho supreme court is rendered,
entered upon public land of tho United
.states in issi, seven years after the pas
eugo ot hub act, anu it was claimed by the
plaintiff that Mr. Hall know when ho
settled upon tho land ond built his mill
that tho water In White river was1 likely
to bo diverted and used for either domestic
or irrigation purposes, because of this
law, and that he, Mr. Hall, could get no
vesteu right which would ontltlo hlra to a
perpetual uso of tha wator, as against those
who sottled nbovo him. nnd who mleht rnn.
struct dltchos for tho purroso of Irrigating
their farniB and for tho supply of wator lor
domestic purposes to those'who might settle
In villages,
Tho plaintiff, In Its petition, asked the
court, If It should determlno that the mill
owners had vested rights, to allow them to
pay nny damages which tho mill owners
might sustain by reason of tho diversion ot
tha water.
Tho plaintiff also alleged that the mill
owners had stood by and allowed It to Invra1
more than $10,000 In the construction ot lis
ditch tor Irrigation without objection, and
law of 1S77. To tho first argument we (
neswer that this court has u number of
times approved and recognized the common
law rule relative to th" rights of riparian
owners. Clark vs. Cambridge, 45 Nob. 793;
Gill vs. Lcldlgh, 40th Neb. 603; Etdmlller
Ico Co. vs. Guthrie, 42 Neb. 238, and has
no doubt that that Is tho proper rule. Nor
can wo understand how the act of 1877
(sections 47, 48, chapter xvlv, a, Compiled
Statutes 1897), In any degrco either ro
pealed or modified the common law rule
relating to riparian rights."
Tho effect of tho decision would seem to
be to wipe out all legislation upon tho
subject of Irrlgntlon and to firmly estab
lish tho doctrine of riparian rights. !
10 11 eel or tin- Uci'Inioii.
Whllo the court docs not deckle that that
portion of tho act which provides for the
creation of tho State Board of Irrigation la
unconstitutional, becauso in derogation of
section 1 of artlclo vl of tho constitution, It
strongly hints at It. It says: "Without
deciding that that portion ot tho act Is
unconstitutional, wo will assume Its In- i
validity for tho purposes of this case, for '
a cursory examination of tho act will con-
vlnco nnyono that tho Hoard of Irrigation
was ono of the Inducements to Its passago,
nnfi It Is so Interwoven with tho wholo act
as to mako It Impossible to declare this
portion thereof lnvnlld, without also affect-N
lng the destruction of the remainder of tho
net." Tho oxlstenco or non-cxis'enco of tho
bofird wo'ild cccm to bo Immaterial, ub thoro
will bo nothing for It to do, If tho doctrlno
of riparian rights prevails.
under tho decision rendered, no water
mny bo diverted from nny of tho running
streams of Nebraska until it has boon con
domncd nnd taken under legislation yet to
bo passed. It was tho contention of tho
defendant, Hall, that thoro wos no public
wator In Whlto river, nor, Indeed, In any
of tho streams of tho stato until tho state
board should so decldo, nnd this contention
of tho defendant seems to havo been sus
tained, t
As there la probably no stream In the
stato (hat does not run through some
body's laud, It follows thnt thero Is no
Btream In tho stato without having a
rlpprlsn proprlotT en Its bnnks, and, there.
foro, thero Is no stream In tho stato carry
ing water which may bo diverted from lta
channel for Irrigation.
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