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' ELEMENTS 
 
 OF 
 
 WESTERN WATER 
 LAW- 
 
 (REVISED) 
 
 BY 
 
 A. E. CHANDLER 
 
 I* 
 
 Irrigation and Water Right Specialist ; President of California 
 
 State Water Commission; President of 
 
 California Irrigation Board 
 
 TECHNICAL PUBLISHING CO. 
 
 SAN FRANCISCO 
 
 1918 
 
** 
 
 
 Copyright 1912-1918 
 
 Technical Publishing 
 
 Company 
 
PREFACE TO THE SECOND EDITION 
 
 Over five years have elapsed since the text of the first 
 edition was prepared as separate articles for the Journal of 
 Electricity. During that period, the movement for legislation 
 providing a rational control of water rights has notably 
 advanced, and the courts of last resort, in many cases dealing 
 with water rights, have either established new principles or 
 strengthened the old. In this edition, an attempt has been 
 made to revise the text so that the changes due to new legis- 
 lation and judicial opinions may be duly emphasized. 
 
 The idea of the lectures, as originally given to engineer- 
 ing and agricultural students in the University of California, 
 was to so present the "elements" as to acquaint the students 
 with the work and problems found in a state engineer's office, 
 in dealing with the appropriation of water for irrigation and 
 other useful purposes. The aim of this revision is to serve the 
 same purpose by bringing the text to date. 
 
 The writer wishes to express his appreciation of the very 
 material assistance given him by Professor Sydney T. Hard- 
 ing, of the University of California, in preparing the revision 
 for publication. 
 
 San Francisco, January 15, 1918. 
 
CONTENTS 
 
 CHAPTER I 
 
 Early Development of the Doctrine of Appropriation 1 
 
 CHAPTER II 
 
 Riparian Rights in The Western States 9 
 
 Statutory Limitation of Riparian Rights 17 
 
 Lateral Limits 19 
 
 Riparian Right Restricted to Riparian Land 21 
 
 Reasonable Use Among Riparian Owners ,_ 22 
 
 Riparian Rights to Navigable Waters 23 
 
 Summary of Principles 23 
 
 CHAPTER III 
 
 Law of Underground Waters 25 
 
 Statutes Regulating Artesian Wells 31 
 
 Contrast of the California Rules of Percolating Waters and 
 
 of Riparian Rights ,. . 32 
 
 CHAPTER IV 
 
 The Doctrine of Appropriation '. 34 
 
 Right of Access Appropriations Not Restricted to Public 
 
 Lands 34 
 
 Waters Open to Appropriation 35 
 
 Navigable Waters \ 37 
 
 Waters of Lakes 37 
 
 Waters in Artificial Channels and Surface Waters 38 
 
 Waste Water ,. ., 38 
 
 Proceedings to Effect Appropriations 39 
 
 Incomplete Appropriations , 41 
 
 The Measure of the Right 42 
 
 Principles of Prior Appropriation 43 
 
 CHAPTER V 
 
 Loss of Water Rights ' 45 
 
 Abandonment and Forfeiture 45 
 
 Adverse Use or Prescription 48 
 
 Estoppel 50 
 
 Rights of Way by Prescription 51 
 
 CHAPTER VI 
 
 Water Right Legislation 52 
 
 Colorado 52 
 
 Wyoming ,, 56 
 
 Nebraska '59 
 
 Idaho 61 
 
 Utah 65 
 
 Nevada 66 
 
 <ew Mexico, North Dakota, Oklahoma, and South Dakota 68 
 
 ilifornia 70 
 
 Acquirement of Rights 70 
 
 Adjudication of Rights 73 
 
 Distribution of Water 73 
 
 Texas 74 
 
 Washington 75 
 
 Kansas : 75 
 
 Review of Legislation 
 
 Adjudication of Rights 76 
 
 Acquirement of Rights 80 
 
 Distribution of Water 82 
 
 Conclusion . 83 
 
CHAPTER VII 
 
 Water Rights on Interstate Streams 84 
 
 Kansas v. Colorado 86 
 
 Legislation Regarding Interstate Streams 90 
 
 Summary 94 
 
 CHAPTER VIII 
 
 Rights of Way Over Public Lands for Ditches and Reservoirs 96 
 
 Act of March 3, 1891 98 
 
 Act of May 11, 1898 99 
 
 Act of February 1, 1905 100 
 
 Act of February 15, 1901 100 
 
 Comments on Departmental Regulations, Act of February 15, 
 
 1901 , 100 
 
 Indeterminate Licenses 101 
 
 Regulations of Rates and Service 102 
 
 The .Annual Charge 103 
 
 Water Powers on Navigable Streams 107 
 
 Summary 107 
 
 CHAPTER IX 
 
 Commercial and Co-operative Irrigation Enterprises 109 
 
 First Group of Commercial Enterprises Ill 
 
 Second Group of Commercial Enterprises Ill 
 
 Third Group of Commercial Enterprises 112 
 
 Co-operative or Mutual Enterprises 112 
 
 The Regulation of Commercial Enterprises 114 
 
 Who Owns the Water Right 117 
 
 The Future of Commercial Enterprises 119 
 
 CHAPTER X 
 
 The Desert Land Act and the Carey Act 121 
 
 The Carey Act 123 
 
 State Legislation 124 
 
 Development Under the Carey Act 126 
 
 Colorado, Idaho 126 
 
 Montana, Nevada, Oregon, Utah, Wyoming 127 
 
 CHAPTER XI 
 
 The Reclamation Act 128 
 
 The Reclamation Act of June 17, 1902 128 
 
 Act of August 9, 1912 132 
 
 Reclamation Extension Act of August 13, 1914 132 
 
 Judicial Construction of Reclamation Act 134 
 
 Development Under the Reclamation Act , 135 
 
 CHAPTER XII 
 
 Irrigation Districts 138 
 
 The California Irrigation District ACL 138 
 
 Points of Difference in Irrigation District Acts 140 
 
 The Constitutionality of Irrigation District Acts 142 
 
 Early Irrigation Districts in California 142 
 
 Operations Under Irrigation District Acts 143 
 
 The California Irrigation Act 145 
 
 Irrigation Districts on Reclamation Service Projects 146 
 
 Congressional Act of August 11, 1916 148 
 
 The Future of Irrigation Districts 149 
 
 CHAPTER XIII 
 The Desideratum in Legislation Regarding the Public Waters.... 151 
 
 Riparian Rights 151 
 
 Percolating Waters 154 
 
 Irrigation Versus Navigation 155 
 
 Capitalization of Water Rights 155 
 
 Legislation Regarding Appropriations 156 
 
ELEMENTS OF WESTERN 
 WATER LAW 
 
 CHAPTER I 
 
 EARLY DEVELOPMENT OF THE DOCTRINE OF 
 APPROPRIATION 
 
 The doctrine of appropriation is one recognized in the law 
 of waters as governing a class of rights markedly distinct from 
 the riparian rights of the common law. It grew out of the 
 occupancy of the public domain during the mining period and 
 is not accepted outside of the western mining and irrigation 
 states. Although of so recent origin as far as our own people 
 are concerned, the following quotation from Clough v. Wing 
 (2 Ariz. 371) shows its long standing in America: 
 
 And the right to appropriate and use water for iirigation has been 
 recognized longer than history, and since earlier times than tradition. 
 Evidences of it are to be found all over Arizona and New Mexico in 
 the ancient canals of a prehistoric people, who once composed a dense 
 and highly civilized population. These canals are now plainly marked, 
 and some modern canals follow the track and use the work of this 
 forgotten people. The native tribes, the Pimas and Papagos and other 
 pueblo Indians, 'now, as they for generations have done, appropriate 
 and use the waters of these streams to husbandry, and sacredly recog- 
 nize the rights acquired by long use, and no right of a riparian owner 
 is thought of. The only right in water is found in the right to conduct 
 the same through their canals to their fields, there to use the same in 
 irrigation. The same was found to prevail in Mexico among the 
 Aztecs, the Toltecs, the Vaquis, and other tribes at the time of the 
 conquest, and remained undisturbed in the jurisprudence of that 
 country until now. Clough v. Wing, 17 Pac. 453. 
 
 As was to be expected from the great rush to the gold 
 fields following the discovery in January, 1848, legal contro- 
 versies early arose not only in regard to the mining claims 
 but also in regard to the ditches and water rights used in 
 connection therewith. One of the very early cases often 
 
2''"' ELEMENTS CF WESTERN WATER LAW 
 
 quoted is Irwin v. Phillips (5 Cal. 140), decided in 1855, and 
 the following extract from the opinion clearly shows the neces- 
 sity for the doctrine of prior appropriation : 
 
 Courts are bound to take notice of the political and social condi- 
 tions of the country which they judicially rule. In this state the 
 larger part of the territory consists of mineral lands, nearly the whole 
 of which are the property of the public. No right or intent of disposi- 
 tion of these lands has been shown either by the United States or the 
 state governments, and with the exception of certain state regulations, 
 very limited in their character, a system has been permitted to grow 
 up by the voluntary . . . action and assent of the population, whose 
 free and unrestrained . . . occupation of the mineral region, has been 
 tacitly assented to by the one government, and heartily encouraged by 
 the expressed legislative policy of the other. If there are, as must be 
 admitted, many things connected with this system, which are crude 
 and undigested, and subject to fluctuation and dispute, there are still 
 some which a universal sense of necessity and propriety have so firmly 
 fixed as that they have come to be looked upon as having the force and 
 effect of res judicata. Among these the most important are the rights 
 of miners to be protected in the possession of their selected localities, 
 and the rights of those who, by prior appropriation, have taken the 
 waters from their natural beds, and by costly artificial works have 
 conducted them for miles over mountains and ravines, to supply the 
 necessities of gold diggers, and without which the most important 
 interests of the mineral region would remain without development. 
 So fully recognized have become those rights, that, without any specific 
 legislation conferring or confirming them, they are alluded to and 
 spoken of in, various acts of the legislature in the same manner as if 
 they were rights which had been vested by the most distinct expression 
 of the will of the lawmakers. . . . This simply goes to prove what 
 is the purpose of the argument, that however much the policy of the 
 state, as indicated by her legislation, has conferred the privilege to 
 work the mines, it has equally conferred the right to divert the streams 
 from their natural channels, and as these two rights stand upon an 
 equal footing, when they conflict, they must be decided by the fact of 
 priority, upon the maxim of equity, "Qui prior est in tempore, potior 
 est in jure." 
 
 Elsewhere in the above mentioned opinion it is stated : 
 It must be premised that it is admitted on all sides that the 
 mining claims in controversy, and the lands through which the stream 
 runs and through which the canal passes, are a part of the public 
 domain, to which there is no claim of private proprietorship. 
 
 The miners and others were but trespassers on the public 
 domain as Congress had passed no legislation recognizing 
 their claims. It is not surprising that a movement gained 
 weight in the eastern states to have the government assert its 
 ownership to the mines and ditches and other developed works 
 on the public lands. As far as the West is concerned, there- 
 fore, the then critical situation was happily relieved by the 
 
DEVELOPMENT OF DOCTRINE OF APPROPRIATION 3 
 
 passage of the famous Act of 1866, which is now Section 2339 
 of the Revised Statutes of the United States, and reads as 
 follows : 
 
 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 decisions of 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 herein specified is acknowledged and confirmed; but 
 whenever any person, in the construction of any ditch or canal, injures 
 or damages the possession of any settler on the public domain, the 
 party committing such injury or damage shall be liable to the party 
 injured for such injury or damage. 
 
 In 1870 the section which is now Section 2340 of the 
 Revised Statutes, and which is generally construed with Sec- 
 tion 2339, was passed. It is as follows : 
 
 All patents granted, or pre-emption or homesteads allowed, shall 
 be subject to any vested and accrued water-rights, or rights to ditches 
 and reservoirs used in connection with such water-rights as may have 
 been acquired under or recognized by the preceding section. 
 
 It is to be noted that by the two sections above quoted 
 not only were the water rights which had vested and accrued 
 recognized, but also the rights of way for ditches and reser- 
 voirs in connection therewith. 
 
 The first noteworthy judicial construction of the Act of 
 1866 was by the Supreme Court of Nevada in the case of Van 
 Sickle v. Haines (7 Nev. 249) decided in January, 1872. Both 
 parties were the owners in fee of their respective lands. 
 Haines' patent was dated December 28, 1864, and long prior 
 thereto Van Sickle had diverted part of the waters of Daggett 
 Creek, which diversion was interfered with by Haines in 
 December, 1867, under the claim of riparian ownership. The 
 lower court rendered judgment in favor of Van Sickle on the 
 grounds of prior appropriation, but the Supreme Court held 
 that such rights of appropriation were inferior to the riparian 
 rights of Haines and reversed the decision. In reference to 
 the Act of 1866, the Supreme Court said : 
 
 The Act of Congress of July, 1866, if it shows anything, shows 
 that no diversion had previously been authorized, for if it had whence 
 the necessity of passing the Act, which appears simply to have been 
 adopted to protect those who at that time were diverting water from 
 its natural channel? 
 
 Doubtless, all patents issued, or titles acquired from the United 
 States, since July, 1866, are obtained subject to the rights existing at 
 that time, but this is a different case, for if the appellant has any 
 right to the water, he acquired it by the patent issued to him two 
 
4 ELEMENTS OF WESTERN WATER LAW 
 
 years before that time, and with which, therefore, Congress could not 
 interfere. 
 
 On May 28, 1872, the Federal Circuit Court for Nevada 
 decided the case of Union Mill & Milling Co. v. Ferris (2 Saw. 
 176). The mill company, as a riparian owner, brought the 
 action to enjoin Ferris and other farmers in the Upper Carson 
 Valley from diverting the waters of Carson River. Regarding 
 the Act of 1866 the court said : 
 
 For seventeen years prior to 1866, the mineral land of California 
 and Nevada had been occupied by the citizens of the United States, 
 without objection on the part of the government. Canals and ditches 
 were dug at this time, often at great expense, over the public lands, 
 and the water of the streams diverted by these means for mining and 
 other purposes. Local customs grew up in the mining districts, by 
 common consent, and by rules adopted at miners' meetings for govern- 
 ing the location, recording and working of mining claims in the par- 
 ticular mining district. Possessory rights to public lands, mining claims 
 and water were regulated by state statutes, and enforced by the state 
 courts 
 
 But the Act is prospective in its operation, and cannot be con- 
 strued so as to divert a part of an estate granted before its passage. 
 If it be admitted that Congress has the power to divest a vested right 
 by giving a statute a retrospective operation, that interpretation will 
 never be adopted without absolute necessity. 
 
 To appreciate the seriousness of the two Nevada decisions 
 above mentioned, it must be remembered that, by the con- 
 struction therein given, one who received patent prior to July, 
 1866, for riparian land could enjoin diversions above him to 
 non-riparian lands no matter how long such diversions had 
 existed, and also that any one who secured patent prior to 
 July, 1866, to land crossed by a ditch became the owner of 
 such ditch, or at least could stop its operation. 
 
 Fortunately for the early investors, the Supreme Court 
 of the United States did not adopt the Nevada Court's view, 
 as is clearly shown in the case of Broder v. Natoma Water '& 
 Mining Company (101 U. S. 274) decided in October, 1879. 
 The water company had constructed a ditch at an expense of 
 about $200,000 in 1853 on lands then public. Part of the land 
 crossed was within the Central Pacific Railroad grant under 
 the Act of 1864, and Broder became the owner thereof and 
 brought the action to have the canal declared a nuisance and 
 to recover $12,000 damages on account of its maintenance on 
 the land. In construing the provisions of the Act of 1866 in 
 its bearing upon the case, the Court said : 
 
 In reference to his lands held under conveyance from the railroad 
 company, it might be a question of some difficulty whether the right 
 was so far vested in that company before the passage of this Act of 
 
DEVELOPMENT OF DOCTRINE OF APPROPRIATION 5 
 
 1866, that the latter would be ineffectual as regards these lands. But 
 we do not think that the defendant is under the necessity of relying 
 on that statute. 
 
 It is the established doctrine of this court that rights of miners, 
 who had taken possession of mines and worked and developed them, 
 and the rights of persons who had constructed canals and ditches to 
 be used in mining operations and for purposes of agricultural irriga- 
 tion, in the region where such artificial use of the water was an abso- 
 lute necessity, are rights which the government had, by its conduct, 
 recognized and encouraged and was bound to protect, before the pas- 
 sage of the Act of 1866. We are of opinion that the section of the Act 
 which we have quoted was rather a voluntary recognition of a pre- 
 existing right of possession, constituting a valid claim to its continued 
 use, than the establishment of a new one. This subject has so recently 
 received our attention, and the grounds on which this construction 
 rests are so well set forth in the following cases, that they will be 
 relied on without further argument. 
 
 The Broder v. Natoma Water Company decision has 
 continued to be the accepted construction of the Act of 1866, 
 and what uncertainty may have arisen from the Nevada decis- 
 ions was thus removed. 
 
 As the first appropriations on the public domain were by 
 the miners, it became the custom to initiate water rights by 
 posting notices similar to those used for the mineral claims. 
 The fact that the notice in the case of the water claim could 
 hardly be seen except by accident, and was therefore not like 
 the mining notice which could be seen by all prospectors 
 passing the mineral claim, did not appeal to the early miners. 
 The water claims posted in accordance with custom were 
 recorded in the county records long prior to any legislation 
 authorizing or requiring such recordation. 
 
 Reference has been made to Irwin v. Phillips and the 
 rule of prior appropriation. In the following year, 1856, the 
 case of Conger v. Weaver (6 Cal. 548) was decided and estab- 
 lished, as between claimants on government land, the doctrine 
 of relation in regard to appropriations in the following words : 
 
 But, from the nature of these works, it is evident that it requires 
 time to complete them, and from their extent, in some instances, it 
 would require much time; and the question now arises, at what point 
 of time does the right commence, so as to protect the undertaker from 
 the subsequent settlements or enterprises of other persons. If it does 
 not commence until the canal is completed, then the license is value- 
 less, for after nearly the whole work has been done, any one, actuated 
 by malice or self-interest, may prevent its accomplishment; any small 
 squatter settlement might effectively destroy it. 
 
 But I apprehend that, in granting the license which we have pre- 
 sumed for the purpose before us, the state did not intend that it should 
 be turned into so vain a thing, but designed that it should be effectual 
 
6 ELEMENTS OF WESTERN WATER LAW 
 
 for the object in view; and it consequently follows that the same rule 
 must be applied here to protect this right as in any other. 
 
 So, in the case of constructing canals, under the license from the 
 state, the survey of the ground, planting stakes along the line, and 
 actually commencing and diligently pursuing the v/ork, is as much 
 possession as the nature of the subject will admit, and forms a series 
 of acts of ownership which must be conclusive of the right. 
 
 In an earlier case, Eddy v. Simpson (3 Cal. 252) decided 
 in 1853, it was said: 
 
 It is laid down by our law writers, that the right of property in 
 water is usufructuary, and consists not so much of the fluid itself as 
 the advantage of its use. . . . The right is not in the corpus of 
 the water, and only continues with its possession. 
 
 The above decisions are but illustrations of many by the 
 California Supreme Court in the fifties which established the 
 general principles of the law of prior appropriation. As new 
 cases arose the principles were enlarged upon and strength- 
 ened, so that when the California legislature did finally act 
 upon this subject in 1872, the sections adopted were but 
 declaratory of existing law. The sections then enacted became 
 sections 1410 to 1422 of the Civil Code and, with minor amend- 
 ments, governed the appropriation of water in California until 
 December 19, 1914, when the Water Commission Act became 
 effective. Appropriations of water for power purposes were, 
 however, previously governed by a statute effective April 8, 
 1911. Although the sections are not now in force in California, 
 they are quoted here as they were the first general statutes 
 providing for the appropriation of water in the western states, 
 and served as a model for the first legislation along this line 
 in the other western states. 
 
 Sections 1410 to 1422 of the Civil Code of California, as 
 adopted in 1872, are as follows : 
 
 Sec. 1410. The right to the use of running water flowing in a 
 river or stream or down a canyon or ravine may be acquired by appro- 
 priation. 
 
 Sec. 1411. The appropriation must be for some useful or bene- 
 ficial purpose, and when the appropriator or his successor in interest 
 ceases to use it for such a purpose, the right ceases. 
 
 Sec. 1412. The person entitled to the use may change the place 
 of diversion, if others are not injured by such change, and may extend 
 the ditch, flume, pipe, or aqueduct by which the diversion is made to 
 places beyond that where the first use was made. 
 
 Sec. 1413. The water appropriated may be turned into the chan- 
 nel of another stream and mingled with its water, and then reclaimed; 
 but in reclaiming it the water already appropriated by another must 
 not be diminished. 
 
 Sec. 1414. As between appropriators, the one first in time is the 
 first in right. 
 
DEVELOPMENT OP DOCTRINE OF APPROPRIATION 7 
 
 Sec. 1415. A person desiring to appropriate water must post a 
 notice, in writing, in a conspicuous place at the point of intended diver- 
 sion, stating therein: 
 
 1. That he claims the water there flowing to the extent of (giving 
 the number) inches, measured under a four-inch pressure; 
 
 2. The purposes for which he claims it, and the place of intended 
 use; 
 
 3. The means by which he intends to divert it, and the size of 
 the flume, ditch, pipe, or aqueduct in which he intends to divert it. 
 
 A copy of the notice must, within ten days after it is posted, be 
 recorded in the office of the recorder of the county in which it is posted. 
 
 Sec. 1416. Within sixty days after the notice is posted, the claim- 
 ant must commence the excavation or construction of the works in 
 which he intends to divert the water, and must prosecute the work 
 diligently and uninterruptedly to completion, unless temporarily inter- 
 rupted by snow or rain. 
 
 Sec. 1417. By "completion" is meant conducting the waters to 
 the place of intended use. 
 
 Sec. 1418. By a compliance with the above rules the claimant's 
 right to the" use of the water relates back to the time the notice was 
 posted. 
 
 Sec. 1419. A failure to comply with such rules deprives the 
 claimants of the right to the use of the water as against a subsequent 
 claimant who complies therewith. 
 
 Sec. 1420. Persons who have heretofore claimed the right to 
 water, and who have not constructed works in which to divert it, and 
 who have not diverted nor applied it to some useful purpose, must, 
 after this title takes effect, and within twenty days thereafter, proceed 
 as in this title provided, or their right ceases. 
 
 Sec. 1421. The recorder of each county must keep a book, in 
 which he must record the notices provided for in this title. 
 
 Sec. 1422. The rights of riparian proprietors are not affected 
 by the provisions of this title. 
 
 As stated above, under the doctrine of relation laid down 
 in Conger v. Weaver, the right to appropriate water, after the 
 completion of the diversion works with reasonable diligence, 
 dated back to the first steps taken in regard thereto. The 
 statute, in Section 1418, fixed this first step as the posting of 
 the notice (Section 1415). It is well settled (Wells v. Mantes, 
 99 Cal. 583, and a number of later cases) that it was not neces- 
 sary to follow the statute in order to make a valid appropria- 
 tion, but by failure to follow the statute the benefit of the 
 doctrine of relation was lost and the right dated back to the 
 completion of the work only. There was therefore nothing to 
 be gained and much to be lost by not following the statute. 
 
 As is shown by Sections 1415 and 1416, there was no 
 public officer in California concerned in the form or contents 
 of the notice of appropriation and the consequent construction 
 
8 ELEMENTS OF WESTERN WATER LAW 
 
 work. The county records abound in notices under which no 
 construction or survey work was ever done. Such notices are 
 not worthy of the slightest consideration and are in no way 
 "clouds upon the title," as is often claimed. Unless the con- 
 struction work was begun and continued with reasonable 
 diligence to completion, as provided in the statute, no right 
 accrued. 
 
 In regard to the statements required by the three subdi- 
 visions of Section 1415, practically any notice, regardless of 
 form, giving the number of inches claimed, the purposes, place 
 of use, means of diversion and size of conduit, was sufficient. 
 In the records are found examples of empty generalities as 
 well as some of refined details. As an illustration of how 
 little had to be stated, to be accepted as sufficient by the 
 Supreme Court, the following notice from the case of De Wolf- 
 skill v. Smith (5 Cal. App. 175) is quoted : 
 
 Notice of Appropriation of Water. Take notice that the under- 
 signed claims fifteen hundred inches of water measured under a four, 
 inch pressure flowing from and at the wells bored by the San Jacinto 
 Oil Company on the land which would be the northwest quarter of 
 section four, township three south, range two west, San Bernardino 
 meridian, if said land were surveyed by the United States, and I intend 
 to divert said water at the three several points where this notice is 
 posted, to-wit, at each of said wells bored by the San Jacinto Oil 
 Company. 
 
 I intend to use said water for domestic and irrigation purposes on 
 the land which was known as the Rancho San Jacinto Nuevo and the 
 Lorena, Lakeview and Alesandro Colonies and adjoining lands in the 
 county of Riverside, state of California. 
 
 I intend to divert said water by means of ditches of sufficient 
 capacity to carry same, leading from each of said points. 
 
 Dated the thirteenth day of October, 1902. 
 
 ELENA P. deWOLFSKILL. 
 Witness: DAVID G. deWOLFSKILL. 
 
CHAPTER II 
 RIPARIAN RIGHTS IN THE WESTERN STATES 
 
 According to the common law doctrine of riparian rights 
 in the law of waters, each owner along a stream is entitled 
 to have the waters thereof flow in the natural channel, un- 
 polluted in quality and undiminished in quantity. A strict 
 interpretation of the doctrine would therefore forbid any use 
 whatsoever of the waters of the stream. It was early modi- 
 fied in England so that two uses are recognized ordinary 
 or natural, including the use for domestic and stock pur- 
 poses; and extraordinary or artificial, including the use for 
 irrigation along the banks and also for mechanical purposes. 
 For "ordinary" uses the upper riparian owner is allowed to 
 take the entire stream if necessary; but for "extraordinary" 
 uses he is entitled to water only when such use will not 
 interfere with a like use by other riparian owners that is, he 
 must share the stream with others along its banks. 
 
 As shown in the previous chapter, a different doctrine 
 that of appropriation grew up during the early occupancy 
 by the miners of the public domain in the western states. It 
 was also shown that the early California cases establishing 
 the new doctrine were between parties not holding title to 
 any land along the streams; and that the Supreme Court of 
 Nevada in Van Sickle v. Haines (7 Nev. 149) and the Federal 
 Circuit Court for Nevada in Union Mill & Mining Co. v. 
 Ferris (2 Saw. 176) in 1872 held that in cases where title to 
 riparian land had passed from the government, the new 
 doctrine must give way to the older and long recognized (in 
 England and the eastern states) doctrine of riparian rights. 
 
 The basis of the argument for the rule laid down in the 
 two Nevada cases was a statutory provision making the 
 common law of England the rule of decision in all the 
 Nevada courts. It is important to note the following words 
 of Mr. Chief Justice Lewis (in Van Sickle v. Haines) regard- 
 
ELEMENTS OF WESTERN WATER LAW 
 
 lie two doctrines, as they show an erroneous view of 
 the doctrine of appropriation which, unfortunately, has been 
 shared by the courts in many western states : 
 
 It (the common law) is a rule which gives the greatest right ta 
 the greatest number, authorizing each to make a reasonable use of it, 
 providing he does no injury to the others equally entitled to it with 
 himself; whilst the rule of prior appropriation here advocated would 
 authorize the first person who might choose to make use of or divert a 
 stream, to use or even waste the whole to the utter ruin of others who 
 might wish it. 
 
 In marked contrast to the attitude of the Nevada courts 
 in the early cases is that of the Colorado courts. In Coffin 
 v. Left Hand Ditch Co., 6 Colo. 443, decided in 1882, the issue 
 between riparian owners and appropriators was before the 
 court for the first time. Coffin and others were riparian own- 
 ers along the St. Vrain River, who, in the dry season of 1879, 
 interfered with the ditch of the Ditch Company, which di- 
 verted the St. Vrain waters to another watershed. The com- 
 pany being a prior appropriator, Coffin relied upon his riparian 
 right. The opinion is full of strong expressions showing the 
 need of appropriation in an arid section, but a few concluding 
 sentences only are given here : 
 
 We conclude, then, that the common-law doctrine giving the 
 riparian owner a right to the flow of water in its natural channel upon 
 and over his lands, even though he makes no beneficial use thereof, 
 is inapplicable to Colorado. Imperative necessity, unknown to the 
 countries which gave it birth, compels the recognition of another doc- 
 trine in conflict therewith. And we hold that, in the absence of express 
 statutes to the contrary, the first appropriator of water from a natural 
 stream for a beneficial purpose has, with the qualifications contained 
 in the constitution, a prior right thereto to the extent of such appro- 
 priation. 
 
 In the late seventies the case of Jones v. Adams, (19 Nev. 
 78), arose out of the conflict over the waters of Sierra Creek, 
 which, like Daggett Cre^k-5^ the Van Sickle case, is a small 
 mountain stream on the west side of Carson Valley in Ne- 
 vada. It was decided by the Supreme Court of Nevada in 
 1885, and the Van Sickle case was overruled on the ground 
 that the doctrines of the common law were inapplicable "to 
 the wants and necessities of the people, whether engaged in 
 mining, agricultural or other pursuits". The doctrine of 
 riparian rights was thus excluded from the law of waters in 
 Nevada and has so remained. 
 
 The year following the decision in Jones v. Adams, the 
 Supreme Court of California decided the celebrated case of 
 Lux v. Haggin (69 Cal. 255). The extreme length of the 
 opinion (two hundred pages probably the longest in the 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 11 
 
 California reports) is sufficient evidence of its importance and 
 the interest in the issue involved. Lux and others sought to 
 stop Haggin from diverting the waters of Kern River which 
 would naturally flow down Buena Vista Slough, to which their 
 lands were riparian. As in the Van Sickle case, the court 
 had a wrong impression of appropriation and said, "It does 
 not require a prophetic vision to anticipate that the adoption 
 of the rule, so called, of 'appropriation' would result in a 
 monopoly of all the waters of the state by comparatively few 
 individuals. . . ." 
 
 The riparian doctrine as modified in Lux v. Haggin is 
 commonly called the California rule. Its principles, so often 
 quoted, are best given in the words of the Court : 
 
 By the common law the right of the riparian proprietor to the flow 
 of the stream is inseparably annexed to the soil, and passes with it, 
 not as an easement or appurtenance, but as part and parcel of it. 
 Use does not create the right, and disuse cannot destroy or suspend it. 
 The right in each extends to the natural and usual flow of all the water, 
 unless where the quantity has been diminished as a consequence of the 
 reasonable application of it by other riparian owners for purposes 
 hereafter to be mentioned. 
 
 By our law the riparian proprietors are entitled to a reasonable 
 use of the waters of the stream for the purpose of irrigation. What 
 is such reasonable use is a question of fact, and depends upon the cir- 
 cumstances appearing in each particular case. . 
 
 Lux v. Haggin was decided by a divided court of four 
 'to three. It has not only fastened the rule of riparian rights 
 upon California, seemingly for all time, but has been the 
 main reliance of the other western states following the Cali- 
 fornia rule. The following extract from the dissenting opin- 
 ion of Mr. Justice Ross shows how decided was the difference 
 of opinion among the Justices: 
 
 The common-law doctrine of riparian rights being wholly incon- 
 sistent with and antagonistic to that of appropriation, it necessarily 
 follows that when the federal and state governments assented to, 
 recognized, and confirmed, with respect to the waters upon the public 
 lands, the doctrine of appropriation, they in effect declared that that of 
 riparian rights did not apply. The doctrine of appropriation thus 
 established was not a temporary thing, to exist only until some one 
 should obtain a certificate or patent for forty acres or some other 
 subdivision of the public land bordering on the river or other stream 
 of wajter. It was, as has been said, born of the necessities of the 
 country and its people, was the growth of years, permanent in its 
 character, and fixed the status of water rights with respect to public 
 lands. 
 
 The California rule has been adopted in California, Kan- 
 sas, Montana (still doubtful), Nebraska, North Dakota, Okla- 
 
12 ELEMENTS OF WESTERN WATER LAW 
 
 homa, Oregon, South Dakota, Texas and Washington. Parts 
 of each of the states named are so humid that irrigation is not 
 only not necessary, but there is a demand for drainage. In the 
 remainder of the irrigation states Arizona, Colorado, Idaho, 
 Nevada, New Mexico, Utah and Wyoming the doctrine of 
 riparian rights has been abrogated and the so-called Colorado 
 rule followed; that is, the doctrine of appropriation exclus- 
 ively. It may assist one to remember the above classification 
 by noting that the semi-arid or "border" states (that is, 
 bordering the irrigation zone) follow the California rule, and 
 that the strictly arid or "interior" states (that is, well within 
 the irrigation zone) follow the Colorado rule. 
 
 One often hears the remark that there is now no real 
 conflict between the doctrines in California, and it many times 
 comes from a supposedly reliable source. Even the Supreme 
 Court of Nevada in Twaddle v. Winters (29 Nev. 88) decided 
 in 1906, in speaking of the passing of the doctrine of riparian 
 rights, quoted with approval the testimony of a California 
 Congressman in the case of Kansas v. Colorado, in which he 
 said "that there had been a departure from the principles 
 laid down in Lux v. Haggin, because at that time the value 
 of water was not realized; that the decision had been prac- 
 tically reversed by the same court on subsequent occasions, 
 and that the doctrine of prior appropriation and the application 
 of water to a beneficial use is in effect in force now in that 
 state." 
 
 The above statement is entirely misleading, as the Cali- 
 fornia Supreme Court has not only not departed from its 
 position in Lux v. Haggin, but has handed down opinions 
 which almost nullify the doctrine of appropriation under 
 certain physical conditions. 
 
 While the Nevada Supreme Court was writing its opin- 
 ion in Twaddle v. Winters the case of Miller & Lux v. Madera 
 Canal Co. (155 Cal. 59) was before the California Supreme 
 Court. It was finally decided in January, 1909. Miller Lux, 
 as riparian owner along the lower Fresno River, sought to 
 enjoin the Madera Canal Company from diverting the flood 
 waters thereof for storage in reservoirs. The Fresno River 
 drains only the lower mountain area and is, therefore, dry 
 early in the summer. The canal company is the owner of a 
 system of ditches for the lands in the vicinity of Madera. and 
 intended to make use of certain natural depressions as reser- 
 voirs so that the flood waters of May and early June might 
 be stored for use later in the season. The river banks through 
 the Miller & Lux property are so low that the floods annually 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 13 
 
 overflow them and deposit "on such lands large quantities of 
 fertilizing and enriching materials, increasing their produc- 
 tiveness and enhancing their value." 
 
 The canal company argued that it intended to divert and 
 store only the flood waters which could not be considered part 
 of the natural flow to which the riparian owners were entitled, 
 and that the use, if such it could be called, of the flood waters 
 by Miller & Lux was too wasteful and unreasonable to be 
 tolerated. The Court refused to accept this argument in the 
 following language : 
 
 What the riparian proprietor is entitled to as against non-riparian 
 takers is the ordinary and usual flow of the stream. There is no good 
 reason for saying that the greatly increased flow following the annually 
 recurring fall of rain and melting of snow in the region about the head 
 of the stream is any less usual or ordinary than the much diminished 
 flow which comes after the rains and the melted snows have run off. 
 
 The doctrine that a riparian owner is limited to a reasonable use 
 of the water applies only as between different riparian proprietors. 
 As against an appropriator who seeks to divert water to non-riparian 
 lands, the riparian owner is entitled to restrain any diversion which 
 will deprive him of the customary flow of water which is or may be 
 beneficial to his land. He is not limited by any measure of reason- 
 ableness. 
 
 A case even more bewildering to appropriators, if pos- 
 sible, was that of Miller v. Bay Cities Water Company (157 
 Cal. 256), decided one year later February, 1910. Miller 
 was the owner of a small orchard in the Santa Clara Valley 
 and had for years irrigated it by pumping from a well. The 
 water company intended to construct a dam to bed rock 
 across the "lower gorge" of the Coyote River and thus im- 
 pound the flood waters of the stream for diversion to San 
 Francisco or other bay cities. Below the lower gorge the 
 river flows through Santa Clara Valley to San Francisco 
 Bay, so that no lower storage is possible. Miller claimed that 
 the dam would prevent the underground waters from reach- 
 ing the water bearing stratum tapped by his well and sought 
 an injunction. 
 
 The Supreme Court sustained the finding of the lower 
 court that the water bearing stratum below Miller's land has 
 its "intake"' in the vast bed of gravel in the lower gorge and 
 is supplied by the surface and subsurface waters of the 
 Coyote River flowing through said gorge. It accordingly 
 affirmed the decree perpetually enjoining the water company 
 "from arresting or obstructing at or above the lower gorge 
 (excepting for the reasonable use thereof on the lands of said 
 corporation. in the exercise of its riparian rights) any of the 
 
14 ELEMENTS OF WESTERN WATER LAW 
 
 water of the Coyote River which, excepting for said arresting 
 or diverting, would flow on the surface of the bed of said river 
 through said gorge, or would flow or percolate through said 
 gorge underneath the surface thereof". 
 
 In a later chapter it will be shown that the owners of land 
 overlying a water bearing stratum are treated in California 
 as riparian owners, so the Supreme Court held that the water 
 company was properly restrained from diverting to non- 
 riparian lands the water which would flow through the stratum 
 tapped by Miller's well. The water company insisted "that 
 if the plaintiff has a right to enjoin the diversion of the waters 
 of the stream which would otherwise percolate to and supply 
 the artesian stratum underlying his land, the court was not 
 warranted in enjoining the appellants from diverting the flood 
 waters of the Coyote River, which it was claimed were wasted 
 and lost in the bay of San Francisco. 
 
 Regarding this argument the Supreme Court said : 
 All these waters are necessary, of themselves or by their force, 
 to supply underground waters, which they, even now, fail to do to the 
 full capacity of the underlying strata, to which full capacity the plain- 
 tiff and others interested in them are entitled. . . . We are not 
 prepared to say that, even in their flow after passing the gravels in 
 which the intake to these artesian strata lie, they serve no other useful 
 purpose, but certainly these storm waters do not become waste until 
 they have flowed over these gravel beds and are on their way to the 
 bay. It is only there that it may be said that they can perform no 
 further useful service, the only place where they first become waste 
 waters, and where, without apparently invading the rights of anyone 
 they may be diverted. No reasonable objection could be made to the 
 diversion of the waters there because they are then, for all practical 
 purposes, waste waters. 
 
 The above ruling seems to establish so wasteful a policy 
 that Mr. Justice Shaw wrote a concurring opinion and clearly 
 presented the dire need of storage of our flood waters, showing 
 the accomplishment of the triple purpose of lessening damage 
 by overflow, affording irrigation water during the dry season 
 and, through return waters from increased irrigation, bet- 
 tering navigation during the low water period. He held, 
 however, that the conditions in the Santa Clara Valley are 
 not paralleled elsewhere in the state, except it may be in the 
 San Fernando valley, and call for the rule laid down; that 
 the floods when waste occurs are infrequent and such waste 
 small and practically indeterminable; that the storage at 
 chance intervals of such small quantities, subject to heavy 
 evaporation losses, would be of little value; and that grant- 
 ing permission to store such waste while conferring no 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 15 
 
 substantial benefit upon the water company would lessen the 
 value of the valley property overlying the water bearing 
 stratum. 
 
 The two cases above discussed are of particular interest 
 as the era of reservoir building in the states recognizing the 
 riparian doctrine is just beginning. The point to be remem- 
 bered is that each case dealt with such conditions that the 
 court believed actual damage would be done if storage was 
 allowed. This is emphasized in the case of Miller & Lux v. 
 Fresno Flume and Irrigation Co. (158 Cal. 626), decided No- 
 vember 22, 1910, wherein the plaintiff sought to have enjoined 
 the maintenance of defendant's dam and its alleged interfer- 
 ence with the natural flow of Stevenson's Creek, a tributary of 
 the San Joaquin River. 
 
 The plaintiffs quoted many California cases "as establish- 
 ing the proposition that the riparian owner is entitled to the 
 unobstructed flow of a stream at all times, including flood 
 waters .... and that, without regard to damage, it is 
 the right of every riparian proprietor to have the water come 
 to his land through its natural channel, undiminished in 
 quantity and unimpaired in quality, save to the extent that 
 results from reasonable use of the water by other riparian 
 owners upon the stream." 
 
 In answer to this argument the court said : 
 
 But the cases do not support the position which appellants* take. 
 Even if at common law or under the civil law it was a part of the usu- 
 fructuary right of the riparian owner to have the water flow by for no 
 purpose other than to afford him pleasure in its prospect, such is not 
 the rule of decision in this state. . . . 
 
 It will be found, therefore, that the decisions of this state not 
 only do not deny the right to the use of storm and flood waters, but 
 encourage the impounding and distribution of those waters wherever 
 it may be done without substantial damage to the existing rights of 
 owners. 
 
 The court also said : 
 
 In Miller v. Bay Cities Water Co., 157 Cal. 256 (107 Pac. 115), 
 the principle is clearly recognized and declared that an appropriator 
 of water may divert for use to any point beyond the watershed any 
 portion of the waters of the stream which serves no useful purpose 
 either to the riparian owners, or in supplying the underground stratum, 
 or such waters as are in excess of the quantity necessary for such 
 purposes. 
 
 And later in quoting from Miller & Lux v. Madera Canal 
 Company, said: 
 
 That our cases 'decide that an injunction restraining the diver- 
 sion of storm or flood waters will not be granted at the instance of 
 
16 ELEMENTS OF WESTERN WATER LAW 
 
 a riparian owner, when it appears that he will not be injured in any 
 way by such diversion.' 
 
 The Court finally concluded that if the doctrine laid 
 down in the earlier cases confers such rights upon riparian 
 owners as claimed by plaintiffs, then such earlier cases may 
 be considered modified by the later decisions. The Fresno 
 Flume storage was again before the California Supreme Court 
 in San Joaquin and Kings R. C. & I. Co. v. Fresno Flume 
 and Irrigation Co. (169 Cal. 174), decided January 28, 1915, 
 and it is therein held that the former decision (158 Cal. 626) 
 gave the Flume Co. the right to store the flood waters only 
 and not to take waters which would decrease the natural 
 flow. 
 
 So far as the natural flow is concerned, the California 
 Supreme Court has repeatedly held that the diversion of 
 water of the stream is an injury to the freehold of the riparian 
 owner and may be enjoined without a showing of other im- 
 mediate monetary damages (Shurtleff v. Kehrer, 163 Cal. 24). 
 
 The most recent noteworthy California flood water decis- 
 ion is Gallatin v. Corning Irrigation Co. (163 Cal. 405), de- 
 cided August 5, 1912. After commenting upon a number of 
 decisions dealing directly with the question of riparian rights 
 in flood waters, the Court says : 
 
 These decisions in effect establish the just rule that flood waters 
 which are of no substantial benefit to the riparian owner or to his 
 land, and are not used by him, may be taken at will by any person who 
 can lawfully gain access to the stream, and conducted to lands not 
 riparian, and even beyond the watershed, without the consent of the 
 riparian owner and without compensation to him. They are not a part 
 of the flow of the stream which constitutes a "parcel" of his land, 
 within the meaning of the law of riparian rights. 
 
 In Oregon and Washington the courts have followed 
 California in the flood water and storage cases. (Eastern 
 Oregon Land Co. v. Willow River Land and Irrigation 'Co., 
 201 Fed. 203; Still v. Palouse Irrigation and Power Co., 117 
 Pac. 466; Longmire v. Yakima Highlands Irr. & Land Co., 
 163 Pac. 782). In the cases cited, storage was enjoined as the 
 court held that substantial damage would result to complain- 
 ing lower riparian owners. 
 
 The conclusion that must be drawn from the above is 
 that lower riparian owners may not only enjoin the diversion 
 of the natural flow but may also enjoin the storage of even 
 the flood waters if such storage will result in damage, either 
 present or prospective. It is therefore of vital interest to 
 know the limits of riparian lands and the general limitations 
 which other states have placed upon the riparian doctrine. 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 17 
 
 Statutory Limitation of Riparian Rights 
 The modified rule of riparian rights has been followed 
 by California, Kansas, Montana (still doubtful), Nebraska, 
 North Dakota, Oklahoma, Oregon, South Dakota, Texas and 
 Washington; and has been rejected by Arizona, Colorado, 
 Idaho, Nevada, New Mexico, Utah and Wyoming. Its rejec- 
 tion by the above states was not due to constitutional or 
 statutory provisions, but to the fact that the doctrine was 
 entirely unsuited to the physical conditions existing in an 
 arid region, as shown by the quotations from Jones v. Adams 
 and Coffin v. Left Hand Ditch Co. Similar language was 
 used by the courts of the other arid states abrogating the 
 doctrine. 
 
 The only Supreme Court holding that the doctrine has 
 been modified by state statute is that of Nebraska. In 
 Crawford v. Hathaway (67 Neb. 325) decided February 4, 
 1903, it is held: 
 
 The irrigation act of 1889 abrogated in this state the common 
 law rule of riparian ownership in water, and substituted in lieu thereof 
 the doctrine of prior appropriation. This legislation could not and 
 did not have the effect of abolishing riparian rights which had already 
 accrued, but only of preventing the acquisition of such rights in the 
 future. 
 
 The Nebraska irrigation act of March 19, 1889, above 
 referred to, was similar to the California statute of 1872 pro- 
 viding for the appropriation of water. This statute was 
 considered at length in Lux v. Haggin the latter party 
 contending "that the Civil Code gives .... a right to 
 the water superior to that of the riparian proprietor below/' 
 Section 1422 of the Civil Code then contained the following 
 words : "The rights of riparian proprietors are not affected 
 by the provisions of this title." The Court held that: 
 
 Section 1422 of the Civil Code is protective, not only of riparian 
 rights existing when the Code was adopted, but also of the riparian 
 rights of those who acquired a title to land from the State, after the 
 adoption of the Code and before an appropriation of water in accord- 
 ance with the Code provisions. 
 
 Neither a grantee of the United States nor the grantee of a pri- 
 vate person, who was a riparian owner when the Code was adopted, 
 need rely for protection on Section 1422. Such persons are protected 
 by constitutional principles. 
 
 At the first California legislative session (1887) after the 
 decision of Lux v. Haggin, section 1422 was repealed with 
 the proviso "that the repeal of this section shall not in any 
 way interfere with any right already vested." This repeal 
 opened the way for a new attack upon the riparian doctrine 
 
18 ELEMENTS OF WESTERN WATER LAW 
 
 but no serious attempt has been made. If the California 
 Supreme Court could be induced to accept the ruling of the 
 Nebraska Supreme Court in Crawford v. Hathaway, the 
 riparian right would be considered abrogated for all public 
 land not entered in 1887. 
 
 The Congressional Desert Land Act of March 3, 1877, 
 contains the following language in one of its provisos : 
 
 And all surplus water over and above such actual appropriation 
 and use, together with the water of all lakes, rivers and other sources 
 of water supply upon the public lands and not navigable, shall remain 
 and be held free for the appropriation and use of the public for 
 irrigation, mining, and manufacturing purposes subject to existing 
 rights. . . . 
 
 This language was construed by the Supreme Court of 
 Oregon in Hough v. Porter (51 Ore. 318) decided January 5, 
 1909, as follows : 
 
 Construed, then, with the act of 1866 and other provisions of 
 the act of 1877, we are of the opinion that all lands settled upon after 
 the date of the latter act were accepted with the implied understanding 
 that (except as to water for domestic purposes) the first to appro- 
 priate and use the water for the purpose specified in the act should 
 have the superior right thereto. 
 
 Hough v. Porter was referred to by the United States 
 Supreme Court in Boquillas Cattle Company v. Curtis (213 
 U. S. 339) decided April 19, 1909. The case involved a con- 
 flict between a riparian owner and an appropriator and the 
 Court after stating that the riparian doctrine was not applic- 
 able in Arizona, continued: 
 
 The opinion that we have expressed makes it unnecessary to 
 decide whether lands in the arid regions patented after the act of 
 March 3, 1877 . . . are not accepted subject to the rule that 
 priority of appropriation gives priority of right by virtue of that act 
 construed with Rev. Stat. 2339. The Supreme Court of Oregon has 
 rendered a decision to that effect on plausible grounds. 
 
 The Supreme Court of Washington, however, has refused 
 to consider the Hough v. Porter rule sufficiently "plausible" to 
 follow.. In Still v. Palouse Irrigation & Power Co. (117 Pac. 
 466) decided August 19, 1911, the Court had before it a case 
 somewhat similar to Miller & Lux v. Madera Canal Co., ex- 
 cept that the defendant company attempting storage was also 
 a riparian owner. The company contended for the rule laid 
 down in Hough v. Porter, but the court held that "the act 
 itself manifestly relates only to the reclamation of desert 
 lands" and refused to apply the rule as the lands involved had 
 not been entered under the Desert Land Act. As noted above, 
 the Oregon Supreme Court held that the rule applied to all 
 public land, which should be the construction if the decision 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 19 
 
 was rendered on "plausible grounds". The Supreme Courts 
 of California, Montana, North Dakota and South Dakota (the 
 remaining riparian right states to which the Desert Land Act 
 applies) have not as yet been asked to accept the rule of 
 Hough v. Porter and their position is therefore still doubtful. 
 
 Lateral Limits. 
 
 It has been shown previously that an appropriator can 
 neither divert nor store flood waters when such might result 
 in damage, present or prospective, to a riparian owner. Any 
 large project, to protect itself, must therefore purchase the 
 riparian land or the riparian right annexed thereto it being 
 well settled that the riparian right may be sold apart from the 
 land. 
 
 The generally accepted lateral limit of riparian land is 
 the margin of the watershed. The Supreme Court of Oregon, 
 however, in Jones v. Conn (39 Ore. 30) has held that riparian 
 lands are not so limited but extend to the exterior bound- 
 aries regardless of the watershed. It is the only state wherein 
 a riparian owner, under the claim of riparian right, may divert 
 the water of a stream beyond its watershed. The general 
 rule is based on the idea that only those lands which border 
 on and drain into a stream can be considered riparian thereto. 
 
 In two cases the California Supreme Court has materi- 
 ally restricted the lateral limits as shown by the following 
 quotations : 
 
 In the case at bar the stipulation is that these fourteen quarter 
 sections were granted each by a separate patent, each patent being 
 based upon a separate entry, and these fourteen quarter sections 
 therefore constitute fourteen distinct tracts of land, and mere contigu- 
 ity cannot extend a riparian right which is appurtenant to one quarter 
 section to another, though both are now owned by the same person. 
 (Boehmer v. Big Rock Irr. Dist, 117 Cal. 27.) 
 
 If the owner of a tract abutting on a stream conveys to another 
 a part of the land not contiguous to the stream, he thereby cuts off 
 the part so conveyed from all participation in the use of the stream 
 and from riparian rights therein, unless the conveyance declares the 
 contrary. Land thus conveyed and severed from the stream can never 
 regain the riparian right, although it may thereafter be reconveyed to 
 the person who owns the part abutting on the stream, so that the two 
 tracts are again held in one ownership. (Anaheim Union Water Co. v. 
 Fuller, 150 Cal. 331.) 
 
 As later decisions have not modified the above rulings, 
 they may be considered accepted in California. The Nebraska 
 Supreme Court, in Crawford v. Hathaway, considered this 
 question at great length and concluded : 
 
 A riparian owner's right to the reasonable use of water exists 
 solely by virtue of his ownership of the lands over or by which the 
 
20 ELEMENTS OF WESTERN WATER LAW 
 
 stream flows. It is obvious that his right cannot be enlarged or 
 extended by acquisition of title to lands contiguous to the riparian 
 land; nor can a riparian owner, as such, rightfully divert to non- 
 riparian lands water which he has a right to use on riparian land, but 
 which he does not so use. ... It being the policy of the govern, 
 ment to dispose of its public domain in tracts of not less than 40 acres 
 each, why, then, may it not be said that riparian rights are limited to 
 such tracts, even though several of them may be joined together in 
 one certificate of purchase or instrument of conveyance? It is not 
 decided that such should be the rule in this state, as it is deemed 
 preferable to have the question open for maturer investigation and 
 consideration. 
 
 The Supreme Court of Texas in Watkins Land Co. v. 
 Clements (86 S. W. 733) decided April 24, 1905, held that 
 riparian rights "cannot extend beyond the original survey as 
 granted by the government." 
 
 Were it not for the cases wherein lower riparian owners 
 (on a showing of possible damage) have been allowed to 
 stop the storage of flood waters by either riparian owners or 
 appropriators, those interested only in power development 
 might be strongly in favor of the riparian doctrine. Under 
 it they can demand that the waters be allowed to flow to even 
 the mouth of the stream if a power site there exists. The 
 lower sites, however, are exceptional, and as present day de- 
 velopments necessitate storage, prospective power plants are 
 as materially affected by the flood water decisions as irriga- 
 tion projects. If the riparian doctrine must continue in force 
 in so many western states, some relief can be secured by 
 inducing the courts to further restrict the lateral limits. A 
 general acceptance of the suggestion of the Nebraska Supreme 
 Court that riparian rights be limited to forty acre tracts would 
 lessen the difficulties in the way of the newer and larger 
 projects. 
 
 The forty acre suggestion applies, of course, to public 
 lands only. In California there are a great number of large 
 Spanish grants, each of which must be considered a single 
 parcel, and to such the suggestion would not apply. As 
 those grants often extend from watershed to watershed, they 
 contain large areas riparian to streams crossing them. While 
 such a grant remains in a single ownership, the proprietor 
 thereof, under the decisions cited, practically controls the 
 streams as far as appropriators are concerned. 
 
 In the quotation from Anaheim Union Water Company 
 v. Fuller, above, it is stated that in a partition of a riparian 
 tract the part distant from the stream loses its riparian right 
 "unless the conveyance declares the contrary". A number of 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 21 
 
 Spanish grants crossed by streams are now being subdivided, 
 and the deeds are so drawn that the various parcels share in 
 the riparian right, regardless of proximity to the stream. It 
 is well settled that the parcels so conveyed retain the riparian 
 right among themselves, but the western courts have not yet 
 directly passed upon the question as to whether the owner of 
 such a parcel, not touching the stream, can be considered to 
 possess a riparian right as against an appropriator or riparian 
 owner outside the original grant. Mr. Wiel, in the third edi- 
 tion of his splendid work on "Water Rights in the Western 
 States", raises this question and, after an exhaustive study of 
 the cases bearing on the point, concludes that such parcels 
 not bordering upon the stream cannot be considered riparian 
 when in conflict with rights outside of the grant. The con- 
 clusion is certainly based on sound reasoning and conforms 
 to the basic idea that only lands bordering upon a stream are 
 riparian thereto. This question will undoubtedly be raised in 
 the near future and the hope of all appropriators is that the 
 courts will accept Mr. Wiel's conclusion.* 
 
 In those instances where the land along the stream below 
 a reservoir site was secured under the public land laws, the 
 maximum limits of riparian lands (in California, Nebraska 
 and Texas the public lands in the last being state lands only) 
 may be determined by an examination of the land office 
 records, as only those forties which touch the stream, or were 
 included with such forties in the original patent, can be con- 
 sidered riparian. Where the stream passes through lands 
 which were part of a Spanish grant in California, abstracts of 
 title must be examined in order to ascertain the least parcel 
 touching the stream at one time in a single ownership. In 
 the riparian states, other than California, Nebraska and Texas, 
 the ordinary assessor's map showing ownership along the 
 streams will give the riparian lands they being those tracts 
 in single ownership not extending beyond the watershed. 
 The last statement must be modified for Oregon, as there the 
 riparian land is not limited to the watershed. 
 
 Riparian Right Restricted to Riparian Land. 
 On account of the riparian right being so superior ( in the 
 rparian right states) to that of appropriation, there is a popu- 
 lar idea that a riparian proprietor actually owns the water 
 and is not limited to its use on his riparian land. The courts, 
 however, have consistently held to the contrary, as illustrated 
 
 *This paragraph is as it appeared in the first edition. The question has 
 been presented to the Supreme Court of California in the case of Miller & 
 Lux vs. J. G. James Co., now (Dec. 1, 1917) pending. 
 
22 ELEMENTS OP WESTERN WATER LAW 
 
 by the second quotation from Crawford v. Hathaway above. 
 Of the many cases thus holding, one presenting unusual 
 conditions is Duckworth v. Watsonville Water & Light Com- 
 pany (150 Cal. 520). 
 
 The Watsonville Company, in order to protect its divers- 
 ion of the waters of Pinto Lake to Watsonville, had purchased 
 either the riparian land or the riparian right for all the lands 
 bordering on the lake. Duckworth leased a parcel of such 
 riparian land, posted a notice of appropriation, initiated his 
 diversion work and brought an action to have his water right 
 determined as against the company. The company claimed 
 that by the purchase of the riparian lands and the riparian 
 rights, including those belonging to the parcel occupied by 
 Duckworth, it was entitled to all of the waters of the lake. 
 The following extract from the opinion clearly presents the 
 Court's view : 
 
 We have said that the water company is entitled to a judgment 
 protecting its riparian right, although it has not used, and does not 
 immediately propose to use, the water on its riparian land. This rule 
 does not apply to any right which it has acquired by appropriation or 
 use upon other lands, and this appears to be the source of the right 
 which it has been exercising. Such right depends upon use and ceases 
 with disuse. (Civ. Code, 1411.) It extends only to the water actually 
 taken and used. The consequence is that, so far as the protection of 
 this right and the water necessary to supply this use are concerned, 
 the water company is not entitled to prevent an appropriation or use 
 by others of the surplus of waters of the lake, if there is any. 
 
 Attention has been called to language used by the Nevada 
 Supreme Court in Van Sickle v. Haines, and by the California 
 Supreme Court in Lux v. Haggin, which characterized the 
 doctrine of appropriation as one certain to result in monopoly. 
 The passage quoted immediately above tells another story. 
 
 Reasonable Use Among Riparian Owners. 
 As stated in quoting from Lux v. Haggin above, each ripa- 
 rian owner is entitled to a reasonable use of the water of the 
 stream, and such reasonable use is a question of fact depend- 
 ing upon the circumstances of each particular case. In the 
 recent case of Half Moon Bay Land Co. v. Cowell (173 
 Cal. 543), decided October 17, 1916, the California Supreme 
 Court included among the many points to be considered the 
 length of the stream, the volume of water in it, the extent of 
 each ownership along the banks, the character of the soil 
 owned by each contestant, the area sought to be irrigated by 
 each, the practicability of irrigation of the lands of the re- 
 spective parties, the expense thereof and the comparative 
 profit of the different uses which could be made of the water 
 
RIPARIAN RIGHTS IN THE WESTERN STATES 23 
 
 on the land. The Court held in the Half Moon Bay case 
 "that when the water is insufficient for all the land or for all 
 of the uses to which it might be applied thereon, and there is 
 enough only for that use which is most valuable and profit- 
 able, the shares may properly be limited to and measured by 
 the quantity sufficient for that use, and the proportions fixed 
 accordingly". On account of the steep hillsides involved in 
 the case, the trial court found only a small portion of the 
 riparian lands were suitable for profitable irrigation, and the 
 finding was upheld. 
 
 It is occasionally claimed that one using water for the 
 development of electric power upon land riparian to the 
 stream cannot rest for such use upon the riparian doctrine. 
 In Mentone Irrigation Co. v. Redlands, etc. Co. (155 Cal. 
 323) the Supreme Court of California, in answering this 
 claim, said: 
 
 The use of the water in its passage through his land to operate 
 a power plant thereon is as clearly within his rights as is his right 
 to operate a mill thereon with which to grind grain or to operate any 
 other machinery, than which there is no more ancient or well-estab- 
 lished feature of riparian rights. 
 
 Riparian Rights to Navigable Waters. 
 
 The California Supreme Court in the early case of Heil- 
 bron v. Fowler Switch Canal Co. (75 Cal. 432), decided March 
 29, 1888, said: 
 
 We see no occasion to discuss the question as to whether the 
 river is navigable or not. In either event the result would be the 
 same. The riparian owner on a non-tidal, navigable stream has all the 
 rights of a riparian owner not inconsistent with the public easement. 
 
 The above statement can be considered to have the force 
 of a dictum only, as the stream in question (Kings River) 
 was said to be not navigable and the particular point was not 
 argued. The Supreme Court of Washington in State v. 
 Superior Court of Grant County (126 Pac. 945), decided^ 
 October 10, 1912, after a careful consideration of the ques-' 
 tion decided that riparian rights to the use of water do not 
 attach to lands bordering on navigable waters. Just how far 
 other western states will go in following Washington remains 
 for their Supreme Courts to decide. Where the constitutional 
 declaration of state ownership of beds and shores is similar to 
 that of Washington the decision will have very great weight. 
 
 Summary of Principles. 
 
 The riparian doctrine has been abrogated in the seven 
 strictly arid states and has been adopted in the ten semi- 
 
24 ELEMENTS OF WESTERN WATER LAW 
 
 humid states of the irrigation zone. Of the ten, it has been 
 held in Nebraska that the state water appropriation act 
 annulled the riparian rights for public lands then unentered, 
 and in Oregon that the congressional desert'land act did like- 
 wise. 
 
 The doctrine restricts the right to riparian lands and 
 allows a reasonable use of water to all riparian owners, the 
 measure of which will depend upon the conditions of the par- 
 ticular case. The right is not created by use and does not 
 cease with disuse. As between a riparian owner and an ap- 
 propriator, the former is not limited by any measure of 
 reasonableness, and may restrain any diversion or interfer- 
 ence with the flow (including flood waters) by the latter 
 which may result in damage to his riparian land. 
 
 Except in Oregon, riparian lands are limited to the water- 
 shed. In California, Nebraska and Texas the right is further 
 limited to the original tract granted by the government, and 
 in California still further limited to the smallest tract at one 
 time in a single ownership. 
 
 It is not improbable that the lateral limits may be ulti- 
 mately limited in some states to the forty acre tract crossed 
 by the stream, and that other states may follow Nebraska 
 and Oregon in their construction of state and federal stat- 
 utes. It is certain, however, that statutes annulling riparian 
 rights existing prior to their passage are clearly unconstitu- 
 tional. All such changes in the doctrine must be made by the 
 courts and not the legislatures. 
 
CHAPTER III 
 LAW OF UNDERGROUND WATERS 
 
 According to the Thirteenth Census the source of water 
 supply for 433,630 acres of the total of 13,739,500 acres irri- 
 gated in 1909 in the western states was wells. Of this area 
 332,410 acres were irrigated from wells in California, for 
 which state the total acreage irrigated was 2,664,100 acres. 
 Although the area so irrigated is but a small percentage of 
 the total, it is constantly increasing. The surface supply is 
 being rapidly exhausted and future development in certain 
 sections must rest entirely upon the underground supply. This 
 fact is so well recognized in California that the larger power 
 companies have initiated a campaign of education to interest 
 farmers in the use of electric power for pumping. The gas 
 engine and pump manufacturers are equally interested, and 
 through their catalogues are making an effective argument 
 for the introduction of pumping plants for irrigation. 
 
 There are two classes of natural underground waters 
 percolating waters and those that flow in a defined subter- 
 ranean channel. Percolating waters have been well designated 
 "vagrant, wandering drops moving by gravity in any and 
 every direction along the line of least resistance". 
 
 Illustrations of underground waters moving in a defined 
 channel are very familiar, and the so-called "sub-flow" of 
 streams is especially common. In the previous chapter the 
 case of Miller v. Bay Cities Water Company was considered 
 at some length. Although the court therein discusses the 
 California cases on percolating waters, Miller's source of 
 supply was clearly a "subterranean channel", and his right the 
 same as that of a riparian owner on a surface stream. Waters 
 in subterranean channels have always been considered sub- 
 ject to the same legal principles as the waters of surface 
 streams. In most jurisdictions underground waters are pre- 
 sumed to be percolating, and the burden of proving the 
 
 25 
 
26 ELEMENTS OF WESTERN WATER LAW 
 
 existence of a known and denned channel is on the one so 
 asserting. 
 
 The common law rule is that percolating waters belong 
 to the owner of the surface and such rule is generally ac- 
 cepted except as later stated in this chapter. An early Cali- 
 fornia case Hanson v. McCue (42 Cal. 303) adopts the rule 
 in the following language : 
 
 Water filtrating or percolating in the soil belongs to the owner 
 of the freehold like rocks and minerals found there. It exists there 
 free from usufructuary right of others, which is to be respected by 
 the owner of an estate through which a defined stream of water is 
 found to flow. The owner may appropriate the percolation and nitra- 
 tions as he may choose, and turn them to profit if he can. 
 
 It must be appreciated that the task of showing the dif- 
 ference between the two classes of underground waters in a 
 given case is very difficult. It means the introduction of 
 much expert testimony with the usual conflict in scientific 
 views. An excellent illustration is the pioneer case of Los 
 Angeles v. Pomeroy (124 Cal. 597), wherein the city sought 
 to condemn land in the San Fernando Valley for use in con- 
 nection with its water supply system from the Los Angeles 
 River. The city contended that the waters under the surface 
 of the tract in question composed the subterranean flow of the 
 Los Angeles River and therefore belonged to it under its 
 "pueblo right" a right under the Mexican law giving the 
 pueblo paramount interest in the waters of streams. Pomeroy 
 claimed that such waters were but percolating waters and 
 therefore belonged to him as owner of the soil. Very elab- 
 orate models and relief maps were introduced in connection 
 with the expert testimony on each side. The court decided 
 that the evidence showed the existence of a well denned 
 channel and that the underground waters were therefore part 
 of the flow of the Los Angeles River and not percolating 
 waters. 
 
 California and Washington are the only western states 
 which have thus far departed from the common law rule of 
 percolating waters. In the now celebrated case of Katz v. 
 Walkinshaw (141 Cal. 116) the plaintiffs sought "to enjoin 
 defendant from drawing off and diverting water from an 
 artesian belt, which is in part on or under the premises of 
 plaintiffs, and to the water of which they have sunk wells" 
 for water for domestic purposes and for irrigating their lands 
 overlying the artesian water. The defendant diverted "the 
 water for sale, to be used on lands of others distant from the 
 saturated belt". The plaintiffs contended that the subsurface 
 water constituted an underground stream and that they were 
 
LAW OF UNDERGROUND WATERS 27 
 
 riparian thereto. The defendant on the contrary alleged that 
 the water rising in her wells was percolating water and there- 
 fore her property. The original opinion of the Supreme Court 
 in the case, written by Mr. Justice Temple, was handed down 
 November 7, 1902. The court therein held that the artesian 
 body was percolating water and not an underground water 
 course to which riparian rights could attach. Instead of 
 holding, as the lower court had done, that the defendant could 
 not be enjoined, the Supreme Court after citing the authori- 
 ties and dwelling on the difference in conditions "in a country 
 like Southern California, where the relative importance of 
 percolating water and water flowing in definite water courses 
 is greatly changed", concluded that a different rule was re- 
 quired and established the new rule of reasonable use. 
 
 A rehearing was granted in order that additional argu- 
 ments might be presented by those "not parties to the action, 
 but vitally interested in the principle involved", and the final 
 opihion, written by Mr. Justice Shaw, was handed down on 
 November 28, 1903. The opinion is very important on account 
 of its treatment of the common law, in addition to the modifi- 
 cation of the law of percolating waters, as shown by the 
 following extract : 
 
 The idea that the doctrine contended for by the defendant is a 
 part of the common law adopted by our statute, and beyond the power 
 of the court to change or modify, is founded upon the misconception 
 of the extent to which the common law is adopted by such statutory 
 provisions, and a failure to observe some of the rules and principles 
 of the common law itself. In Crandall v. Woods, 8 Cal. 143, the court 
 approved the following rule, quoting from the dissenting opinion of 
 Bronson, J., in Starr v. Child, 20 Wend. 149: "I think no doctrine 
 better settled than that such portions of the law of England as are 
 not adapted to our condition form no part of the law of this state. 
 This exception includes not only such laws as are inconsistent with 
 the spirit of our institutions, but such as are framed with special 
 reference to the physical condition of a country differing widely from 
 our own. It is contrary to the spirit of the common law itself to 
 apply a rule founded on a particular reason to a case where that 
 reason utterly fails." 
 
 (It is a noteworthy point that the language of Mr. Justice 
 Bronson quoted by Mr. Justice Shaw, was also quoted by Mr. 
 Justice Ross in his dissenting opinion in Lux v. Haggin, 
 wherein he argued that the common law rule of riparian 
 rights, being unsuited to the existing conditions, should be 
 rejected in California.) 
 
 After other forcible statements in regard to the adapt- 
 ability and power of modification of the common law, the 
 opinion describes at considerable length the semi-arid con- 
 
28 ELEMENTS OF WESTERN WATER LAW 
 
 ditions existing in a large part of California ("in almost all 
 of the southern half of it"), the insufficiency of the natural 
 streams as sources of irrigation supply, and the absolute need 
 of the utilization of the underground waters. Following the 
 statement that "The claim that the doctrine stated by Mr. 
 Justice Temple is contrary to all the decisions of this court 
 is not sustained by an examination of the cases", it proceeds 
 to analyze the former California cases supposedly upholding 
 the common law rule of percolating waters, beginning with 
 Hanson v. McCue, and concludes: 
 
 In view of this conflicting and uncertain condition of the authori- 
 ties it cannot be successfully claimed that the doctrine of absolute 
 ownership is well established in this State. It is proper to state that 
 in all the opinions which have so readily quoted and approved the 
 supposed common-law rule, that injuries from interference with perco- 
 lating waters were too obscure in origin and cause, too trifling in 
 extent, and relatively of too little importance, as compared to mining 
 industries and the wants of large cities, to justify or require the 
 recognition by the courts of any correlative rights in such waters, 
 or the redress of such injuries, there has been no notice at all taken 
 of the conditions existing here, so radically opposite to those prevail- 
 ing where the doctrine arose. It is also to be observed that in some 
 instances in the eastern states, mentioned in the former opinion in 
 this case, the injustice from the diversion of percolating waters has 
 been so glaring and so extensive that the court there was compelled 
 to depart from its previously decided cases and recognize the rights 
 of adjoining owners. 
 
 The new rule established by the decision is well shown 
 in the following paragraphs : 
 
 In controversies between an appropriator for use on distant land 
 and those who own land overlying the water-bearing strata, there may 
 be two classes of such land owners: those who have used the water 
 on their land before the attempt to appropriate, and those who have 
 not previously used it, but who claim the right afterward to do so. 
 Under the decision in this case the rights of the first class of land 
 owners are paramount to that of one who takes the water to distant 
 land; but the land owner's right extends only to the quantity of water 
 that is necessary for use on his land, and the appropriator may take 
 the surplus. As to those land owners who begin the use after the 
 appropriation, and who, in order to obtain the water, must restrict or 
 restrain the diversion to distant lands or places, it is perhaps best 
 not to state a positive rule until a case arises. Such rights are limited 
 at most to the quantity necessary for use, and the disputes will not 
 be so serious as those between rival appropriators. 
 
 Disputes between overlying land owners, concerning water for 
 use on the land, to which they have an equal right, in cases where the 
 supply is insufficient for all, are to be settled by giving to each a fair 
 and just proportion. And here again we leave for future settlement 
 the question as to the priority of rights between such owners who 
 
LAW OF UNDERGROUND WATERS 29 
 
 begin the use of the water at different times. The parties interested 
 in the question are not before us. 
 
 Katz v. Walkinshaw has been consistently followed in 
 all subsequent percolating water cases arising in California. 
 As far as the establishment of further rules is concerned, the 
 most important of the subsequent cases is Burr v. Maclay 
 Rancho Water Company (154 Cal. 428) decided in 1908, as 
 the question left undecided in Katz v. Walkinshaw was pre- 
 sented. The plaintiff therein "sued to enjoin the defendant 
 company from pumping water from its wells on land adjoin- 
 ing that of plaintiff and transporting such water to distant 
 lands for irrigation". The plaintiff's land consists of three 
 tracts blocks 153, 190, and 191 of the Maclay Rancho Ex- 
 Mission San Fernando. The three tracts overly the body of 
 percolating water. Plaintiff's wells are on block 191 which 
 is an irrigated orchard. For a short time part of block 190 
 was also irrigated. The right is claimed for the irrigation of 
 all of blocks 153 and 190 as well as the present irrigated block 
 191. Defendant's wells are on block 192 and while its pumps 
 are being operated "it is impossible for the plaintiff to obtain 
 any water from his wells by means of his pumps". 
 
 In the consideration of the case the Court comments on 
 the contrast between the new doctrine of percolating waters 
 and the rule of riparian rights in regard to true conservation 
 as follows : 
 
 It is not the policy of the law to permit any of the available 
 waters of the country to remain unused, or to allow one having the 
 natural advantage of a situation which gives him a legal right to 
 water to prevent another from using it, while he himself does not 
 desire to do so. The established and settled law of riparian rights in 
 running streams, which have become vested rights, may compel a 
 different rule with regard to such waters in some instances, but these 
 rules of law do not, of necessity, control rights in percolating waters. 
 
 Certain headnotes used in reporting the case so well set 
 forth the principles established that they are quoted in full : 
 
 Different owners of separate tracts of land, situated over common 
 strata of percolating water, may, each upon his own lands, take by 
 means of wells and pumps from the common strata, such quantity of 
 water as may be reasonably necessary for beneficial use upon his 
 land, or his reasonable proportion of such water, if there is not enough 
 for all; but one cannot, to the injury of the other, take such waters 
 from the strata and conduct it to distant lands not situated over the 
 same water-bearing strata. 
 
 As between an appropriator of percolating water for use on 
 distant land, and an owner of land overlying the water-bearing strata, 
 who was using the water on his land before the attempt to appropriate, 
 the rights of the overlying landowner are paramount. Such rights, 
 
30 ELEMENTS OF WESTERN WATER LAW 
 
 however, extend only to the quantity of water that is necessary for 
 use on his land, and the appropriator may take the surplus. 
 
 After an appropriator of water from a common water-bearing 
 strata has begun to take water therefrom to distant lands not situated 
 over the strata, for use on such distant lands, the owner of other 
 overlying land upon which he has never used the water, may invoke 
 the aid of a court of equity to protect him in his right to thereafter 
 use such water on his land, and thus prevent the appropriator from 
 defeating his right, or acquiring a paramount right by adverse use, or 
 by lapse of time. Such an appropriation for distant lands is subject 
 to the reasonable use of the water on lands overlying the supply, 
 particularly in the case of persons who have acquired the lands 
 because of these natural advantages. 
 
 As against the owners of such overlying lands, either those who 
 have used the water on their lands before the attempt to appropriate, 
 or those who have not previously used it, but who claim the right 
 afterwards to do so, the appropriator for use on distant land has the 
 right to any surplus that may exist. If the adjoining overlying owner 
 does not use the water, the appropriator may take all the regular 
 supply to distant land until such landowner is prepared to use it and 
 begins to do so. 
 
 In controversies between the owners of such overlying lands, and 
 an appropriator of the water for use on distant lands, the court has 
 the power to make reasonable regulations for the use of the water by 
 the respective parties, fixing the times when each may take it and 
 the quantity to be taken, provided they be adequate to protect the 
 person having the paramount right in the substantial enjoyment of 
 that right and to prevent its ultimate destruction. In the present case 
 the judgment is directed to be modified in accordance with these rules. 
 
 Although the new rule of percolating waters is firmly 
 established in California, Washington is the only other 
 western state in which it has been followed. In Patrick v. 
 Smith (134 Pac. 1076), decided September 15, 1913, the 
 Supreme Court of Washington, in accepting the new rule 
 said : 
 
 The principles of natural justice and equity demand the recogni- 
 tion of correlative rights in percolating subterranean waters so that 
 each landowner may use such water only in a reasonable manner and 
 to a reasonable extent upon his own land and without undue interfer- 
 ence with the rights of other landowners to a like use and enjoyment 
 of waters percolating beneath their lands. 
 
 The Supreme Court of Colorado in Smith Canal v. Col- 
 orado Ice Co. (82 Pac. 940) after referring to Katz v. Walk- 
 inshaw, said: 
 
 The law regulating ownership of percolating waters in the arid 
 states is now of great as time passes it will be still greater impor- 
 tance; and, until a proper case is presented calling for it, we decline 
 to announce the rule applicable to our local conditions. 
 
LAW OF UNDERGROUND WATERS 31 
 
 The Supreme Court of Idaho in Le Quime v. Chambers 
 (98 Pac. 415), dealing with the appropriation of spring waters 
 commented on the establishment of the new rule in Cali- 
 fornia, but, as it considered the law of underground waters 
 not necessary to the case before it, did not follow it. In the 
 later Idaho case of Bower v. Moorman (147 Pac. 496) the 
 Court held that under the Idaho statutes percolating waters 
 are subject to the rule of prior appropriation in the same way 
 that the waters of streams are. Idaho is therefore in a class 
 by itself it recognizes neither the common law rule of per- 
 colating waters nor the new California rule of correlative 
 rights, but applies the rule of prior appropriation, "the first 
 in time is first in right". 
 
 As stated in McClintock v. Hudson (141 Cal. 275), the 
 new rule regarding percolating water "makes it to a great ex- 
 tent immaterial whether the waters in this land were or were 
 not a part of an underground stream", provided the with- 
 drawal of such waters by defendant can be shown to sub- 
 stantially affect the source of supply well or stream of 
 plaintiff. The need of distinguishing between the two classes 
 of underground waters still exists in all the western states 
 except California, Idaho and Washington, and there the prob- 
 lem of proving the alleged damage to a source of supply 
 remains and is generally a difficult one. 
 
 Statutes Regulating Artesian Wells. 
 
 As shown above, artesian waters are classed as perco- 
 lating waters. The great potential worth of such wells is so 
 evident that a number of western states have passed statutes 
 declaring an artesian well not equipped with such mechanical 
 appliances as will effectively control the flow from the well to 
 be a public nuisance, and providing in more or less detail for 
 the public regulation of artesian wells. In 1907, in the case of 
 Ex parte Elam, 6 Cal. App. 233, the California District Court 
 of Appeal upheld a California statute approved March 6th, 
 1907, providing for the prevention of waste from artesian 
 wells and prescribing penalties therefor. As the doctrine of 
 correlative rights regarding the use of percolating waters is 
 recognized in California, it was expected that the court would 
 so hold. 
 
 A far more interesting case than the Elam case is Eccles 
 v. Ditto, 167 Pac. 726, decided September 13th, 1917, by the 
 Supreme Court of New Mexico. A New Mexico statute 
 authorizes the Artesian Well Supervisor of each county to 
 repair wells, the waters of which are running to waste, and 
 to bring suit if necessary to collect the expenses of such re- 
 
32 ELEMENTS OF WESTERN WATER LAW 
 
 pairs, which expenses become a lien upon the land. The 
 Eccles case is said to be more interesting than the Elam case 
 for the reason that New Mexico still follows the common law- 
 rule of percolating waters. In upholding the validity of the 
 New Mexico statute in the Eccles case, however, the Su- 
 preme Court did not discuss the question of the ownership 
 of percolating waters, but rested on the argument that the 
 statute is a proper exercise of police power to abate nuisances. 
 The opinion cites many cases from eastern states upholding 
 the validity of statutes designed to prevent the waste of oil 
 and gas. In commenting upon the New Mexico statute, the 
 Court said (p. 728) : 
 
 There are two justifying reasons for the enactment of the statute 
 under consideration by the legislature of this state, the first being 
 the necessity of using water for irrigation and the limited quantity of 
 water available. The artesian waters in a given district come from 
 the same source, and are obtained by sinking wells to the common 
 basin, thereby enabling the. water to find its way to the surface. 
 Necessarily, the waste of water derived from the common source of 
 supply diminishes the amount of water available for legitimate uses, 
 and hence works an injury and a detriment to the general public 
 desiring to make use of such waters. The second reason is that 
 permitting the water to run to waste in large quantities results in the 
 "water logging" of lands, and destroys its productiveness. In the 
 artesian belt in the Pecos Valley, it has been found necessary to con- 
 struct drains at enormous expense to carry away the waters which 
 find their way to the lower lands. Hence we find ample justification 
 for the legislative act regulating the construction and use of such wells, 
 thereby preventing the unnecessary waste of water. 
 
 Contrast of the California Rules of Percolating Waters and 
 of Riparian Rights. 
 
 The owner of land overlying a body of percolating water 
 corresponds to a riparian owner on a surface stream, and an 
 appropriator of percolating waters for use on distant Lands 
 (that is, not overlying) corresponds to an appropriator of 
 surface waters for use on non-riparian lands. Under the rule 
 of riparian rights the riparian owner may perpetually enjoin 
 the diversion or storage of the waters of a stream when such 
 diversion is or may be of injury to him; and in the consid- 
 eration of the question of probable damages the riparian 
 owner cannot be restricted to a reasonable use. Under the 
 new rule of percolating waters the times and amounts of use 
 by overlying owner and appropriator may be fixed by the 
 Court so that the overlying owner will have the first 
 use of a reasonable amount for his overlying land and 
 the appropriator the surplus for the distant land ; and in 
 
LAW OF UNDERGROUND WATERS 33 
 
 cases of present non-use by the overlying owner, the appropri- 
 ator will be allowed to withdraw the water until the former 
 is ready to use it. In brief, the new rule of percolating 
 waters allows the widest possible use of the source of supply, 
 while the rule of riparian rights results in waste. It is rather 
 paradoxical to have the sub-surface supply, which is naturally 
 conserved in the underground reservoirs, regulated by a wise 
 rule, while the surface supply, which unless artificially stored 
 or reasonably used must run to waste, remains unregulated. 
 
 In the previous chapter it was stated that the case of Lux 
 v. Haggin fixed the modified doctrine of riparian rights in Cali- 
 fornia seemingly for all time. This was so written as the gen- 
 eral view, even among those strenuously opposed to the 
 doctrine, is that the Supreme Court of California could not 
 seriously consider the abrogation of the doctrine on account 
 of the extensive rights which have been recognized as vested 
 by the long line of decisions following the lead of Lux. v. Hag- 
 gin. It is believed, however, that the riparian rights of conse- 
 quence to single proprietors belong to the Spanish grants; 
 that the most of these have been long irrigated and therefore 
 fully protected under the doctrine of appropriation; and that 
 those that remain are being or will be subdivided into small 
 tracts, comparatively few of which will retain the riparian 
 right, and which will therefore be better served by the doctrine 
 of appropriation. There remain, in addition to the grants, the 
 public land subdivisions immediately touched or crossed by 
 the streams, and which lie in such narrow strips that usually 
 no feasible irrigation scheme can be made to include them 
 without including non-riparian lands also that is, without 
 resting on the doctrine of appropriation. The abrogation of 
 the riparian rule would therefore not materially injure single 
 proprietors, the aggregate of whose holdings now seriously 
 retards the promotion of storage works. 
 
 Lux v. Haggin fixed the rule of riparian rights for the 
 reason that California had adopted the common law and that 
 it was the doctrine of the common law. Katz v. Walkinshaw 
 rejected the common law rule of percolating waters as un- 
 suited to the conditions existing in California. 
 
 The Court in Lux v. Haggin undoubtedly considered the 
 riparian rule the best for the interests of the state, and looked 
 upon the doctrine of appropriation as one certain to result in 
 monopolies of the water supply. The present day view of this 
 latter doctrine will be presented in the next chapter and, it is 
 believed, the "monopolistic" idea will be shown to be unten- 
 able. 
 
CHAPTER IV 
 THE DOCTRINE OF APPROPRIATION 
 
 Most of the western states have adopted statutes which 
 place the control of water appropriations in the office of the 
 state engineer. In all but a few, such statutes were but rec- 
 ently adopted, so that the great mass of water rights resting 
 on the doctrine of appropriation must be denned by the 
 principles laid down from time to time by the courts. In the 
 first chapter it was stated that the California statutes (Sec- 
 tions 1410 to 1422 of the Civil Code) were but declaratory of 
 existing law (established by the courts). Similar statutes 
 were first adopted in the other western states and the court 
 rulings throughout differ but little. 
 
 Right of Access Appropriations Not Restricted 
 to Public Lands 
 
 In Alaska Juneau Gold Mining Company v. Ebner Gold 
 Mining Company (239 Fed. 638) decided Feb. 5, 1917, the 
 United States Circuit Court of Appeals quoted with approval 
 the following from the Cyclopedia of Law and Procedure: 
 "The right of appropriation extends only to waters upon the 
 public domain of the United States, or upon the public lands 
 of a state, for one cannot acquire a water right on land held in 
 private ownership by another without acquiring an easement 
 in such land." 40 Cyc. 704. In the Alaska Juneau case the 
 Alaska company had posted its notice of appropriation upon a 
 mining claim which later became the property of the Ebner 
 company. The court held that, as the act was without the 
 consent of the owner of the property, it was an act of trespass 
 and could not become the basis of a right to appropriate. In 
 Marshall v. Niagara Springs Orchard Co. (125 Pac. 208), the 
 Supreme Court of Idaho, after quoting with approval Cali- 
 fornia and Montana cases, held that an appropriation of water 
 cannot be made on private premises without the knowledge 
 
 34 
 
THE DOCTRINE OF APPROPRIATION 35 
 
 and consent of the owner thereof. The two cases cited are but 
 illustrations of many from different jurisdictions on the same 
 point. It is from such decisions that the idea has become cur- 
 rent that water can be appropriated on the public lands only. 
 
 During the early mining period all of the appropriators 
 were trespassers upon the public domain, but as the govern- 
 ment, under the act of 1866, recognized the rights which had 
 accrued and allowed later comers to appropriate in the same 
 way, a confusion of ideas has resulted between the right of 
 access and the right to appropriate. The Alaska Juneau case 
 and the Marshall case cited above really deal only with the 
 right of access, and a study of the cases upon which the above 
 quotation from the Cyclopedia of Law and Procedure is based 
 shows that the point involved in such cases was the right of 
 access. Although some of the confusion existing has resulted 
 from decisions of the California Supreme Court, the follow- 
 ing quotation from Duckworth v. Watsonville etc., Co., 
 (150 Cal. 520) is sufficiently definite to clear the situation: 
 
 The right to appropriate water under the provisions of the civil 
 code is not confined to streams running over public lands of the United 
 States. It exists wherever the appropriator can find water of a stream 
 which has not been appropriated and in which no other person has or 
 claims superior rights and interests. 
 
 In regard to appropriations and use on public lands not- 
 open to entry, it has been held by the Supreme Court or 
 Washington in Avery v. Johnson (109 Pac. 1028) that no such 
 right "can be acquired by one illegally occupying land in an 
 Indian reservation, prior to the opening of the reservation to 
 settlement under the homestead law." It will probably be 
 generally held that one wishing to appropriate water for use 
 on the public domain must at least have "some sort of pos- 
 sessory right, good as against everybody but the government," 
 as "the beneficial use contemplated in making the appropria- 
 tion must be one that inures to the exclusive benefit of the 
 appropriator and subject to his complete dominion and con- 
 trol" (Lake Shore Duck Club v. Lake View Duck Club 
 Utah 166 Pac. 309). 
 
 Waters Open to Appropriation 
 
 From many decisions which have been previously cited 
 there can be no question about the right to appropriate the 
 waters of streams on the public domain. In .Sullivan v. 
 Northern Spy Mining Company (11 Utah 438), decided June 
 17, 1895, the Supreme Court of Utah held that percolating 
 waters developed by digging a well on the unoccupied public 
 domain could be likewise appropriated, and that the appropri- 
 
36 ELEMENTS OF WESTERN WATER LAW 
 
 ator acquires the right to take water from such wells as 
 against one who by subsequent location acquires title to the 
 land. 
 
 The Alaska Juneau case is particularly interesting as it 
 illustrates how the courts in one jurisdiction follow the ac- 
 cepted rules of prior appropriation in the other western juris- 
 dictions. Alaska has no statutes governing the appropriation 
 of water, so that the right to appropriate is still governed by 
 the rules of the local mining districts, which rules are pat- 
 terned after the practice of mining districts elsewhere in the 
 west. Although the Utah Supreme Court in the Northern Spy 
 case rests somewhat for its views, regarding the appropria- 
 tion of percolating waters on the public domain, upon a Utah 
 statute, the terms of the statute cannot be considered so 
 special that the rule would not apply in other western states. 
 
 In Bear Lake etc., v. Garland (164 U. S. 1), the Supreme 
 Court of the United States, in support of its statement that 
 rights as against third persons are acquired by priority of 
 possession, and that the government will and does recognize 
 such rights as between the parties, cites the Northern Spy 
 case as one of the many illustrations of the rule, 
 
 It is desired to emphasize the above paragraphs under this 
 caption as there seems to be a tendency of those unfamiliar 
 with the history of the development of the doctrine of prior 
 appropriation to hold that only the waters particularly men- 
 tioned in the state statutes, providing for the appropriation of 
 water, can be legally appropriated. The statutes governing 
 appropriations refer to the waters subject thereto as "running 
 water flowing in a river or stream," "natural water courses," 
 "all waters," or use other expressions of the same nature, and 
 a few enumerate in addition "lakes" and "springs". There 
 have been many cases in both eastern and western jurisdic- 
 tions in which the question of what is a "natural water course" 
 has been given careful consideration. These cases generally 
 deal with the question of damages done by surface or flood 
 waters, and it is seldom that the point has to be carefully 
 scrutinized in regard to the right to appropriate this being so 
 for the reason that practically all waters can be appropriated 
 where one can gain the right of access thereto. One defini- 
 tion of a natural water course often quoted is the following 
 from Los Angeles etc., v. Los Angeles (103 Cal. 466) : 
 
 There must be a stream, usually flowing in a particular direction, 
 though it need not flow continually. It may sometimes be dry. It 
 must flow in a definite channel, having a bed or banks, and usually 
 discharge itself into some other stream or body of water. It must be 
 something more than a mere surface drainage over the entire face 
 
THE DOCTRINE OF APPROPRIATION 37 
 
 of the tract of land, occasioned by unusual freshets or other extraordin- 
 ary causes. It does not include the water flowing in the hollows or 
 ravines in land, which is mere surface water from rain or melting 
 snow (i. e., snow lying and melting on the land), and is discharged 
 through them from a higher to a lower level, but which at other times 
 are destitute of water. Such hollows or ravines are not, in legal 
 contemplation, watercourses. 
 
 Navigable Waters 
 
 The statement that all waters of natural watercourses 
 may be appropriated must be somewhat qualified in the case 
 of navigable streams. In Miller v. Enterprise Company (142 
 Cal. 208) the plaintiff sought to enjoin the defendant, a sub- 
 sequent appropriator, from interfering with his dam and ditch, 
 and the latter defended its action on the ground that plaint- 
 iff's dam obstructed a navigable stream, the San Joaquin 
 River. It was held that as the plaintiff had for many years 
 appropriated water from the river, a navigable stream, with- 
 out complaint from any public authority, state or national, and 
 that while navigation had been interfered with, no person not 
 connected with the government could complain. All cases be- 
 tween individuals raising the question of interference with 
 navigation will undoubtedly be decided in the same way. It 
 is well established, however, that the government may not only 
 stop diversions from the navigable part of a stream, but also 
 even those from the non-navigable part, including tributaries, 
 if such diversions will interfere with navigation. (United 
 States v. Rio Grande D. & I Co., 174 U. S. 690). 
 
 Waters of Lakes 
 
 In actual work lake waters are often appropriated. It was 
 contended in the Duckworth case (above) that such waters 
 were not "running water flowing in a stream", but the court 
 held: 
 
 We think the better doctrine in respect to the character of a 
 stream from which the statute provides for appropriations is that it 
 is not necessary that the stream should continue to flow to the sea 
 or to a junction with some other stream. It is sufficient if there is 
 a flowing stream; and the fact that it ends either in a swamp, in a 
 sandy wash in which water disappears, or in a lake in which it is 
 accumulated upon the surface of the ground, will not defeat the right 
 to make the statutory appropriation therefrom, and we can see no 
 reason why the appropriation in such a case may not be made from 
 the lake in which the stream terminates, and which therefore consti- 
 tutes a part of it, as well as from any other part of the water course. 
 
 In Hough v. Porter (98 Pac. 1083) the Oregon Supreme 
 Court held, contrary to the above, in speaking of riparian 
 rights, that when water spreads, as in a swamp or marsh, 
 
38 ELEMENTS OF WESTERN WATER LAW 
 
 "with no well-defined current it cannot be deemed a water 
 course". As the Oregon statutes now provide for the appro- 
 priation of "all waters" within the state, this ruling cannot 
 affect appropriators. 
 
 Waters in Artificial Channels and Surface Waters 
 
 It is well settled that water in artificial channels or reser- 
 voirs cannot be appropriated, and waters artificially developed 
 as in a mining tunnel and allowed to flow in a natural water 
 course to place of intended use are likewise exempt. It has 
 been held by the Supreme Court of New Mexico in Vandei- 
 work v. Hewes (110 Pac. 567), decided August 9, 1910, that 
 "seepage water or waters from snows, rain, or springs, not 
 traceable to and forming a stream or water course" may be 
 used by the owner of the land on which they rise and are not 
 subject to appropriation without his consent. The rule was 
 followed by the Idaho Supreme Court in King v. Chamberlin 
 (118 Pac. 1099) decided Nov. 3, 1911, where the waters in 
 question were surface waters collected in a reservoir on plaint- 
 iff's land. 
 
 In the first chapter the notice of appropriation from De 
 Wolfskill v. Smith (5 Cal. App. 175) was given. It was for the 
 water flowing from abandoned oil wells on the public domain. 
 The Court held that as the water had gathered into a stream, 
 it was immaterial "whether this stream is supplied by water 
 percolating and filtering through the earth or not." The dif- 
 ference between this case and those cited in the last para- 
 graph is that these waters, though artificially developed, had 
 been abandoned, and the others had been retained in private 
 possession. 
 
 Waste Waters 
 
 Many cases deal with the use of waste waters from upper 
 irrigated land. Such cases are often brought by the lower 
 user of such waters to prevent the upper irrigator from so 
 changing his use or system that the water is no longer avail- 
 able to the lower user. It is well established that the lower 
 user is entitled to no relief in such cases, as the upper irri- 
 gator is under no obligation to so accommodate the lower user 
 unless, of course, there is an express agreement to the con- 
 trary. 
 
 So far as the legal right to use waste or surplus waters is 
 concerned, the following from the Nevada case of Bidleman v. 
 Short (150 Pac. 834) is to the point, and expresses the rule 
 which applies in other western states : 
 
THE DOCTRINE OF APPROPRIATION 39 
 
 It is immaterial that the so-called surplus or waste waters are 
 not subject to appropriation so as to establish a permanent right 
 therein, as in the case of an appropriation of the waters of a natural 
 stream. It may be that under the rule of economical use there should 
 be no surplus or waste waters, neverthelss, so-called surplus or 
 waste waters do at times exist and rights may be acquired therein 
 which may continue so long as there is such waters. The complaint 
 alleges the existence of such waters upon the lands of the plaintiffs 
 Bidleman. So long as such waters exist upon their lands, it is their 
 property, and they may consent to others acquiring rights therein upon 
 their property and in ditches thereupon for the purpose of conveying 
 such waters to the lands of such other parties. 
 
 Proceedings to Effect Appropriations 
 
 An appropriation has been denned as "the intent to take, 
 accompanied by some open, physical demonstration of the 
 intent, and for some valuable use." 
 
 Since the adoption of the early statutes providing for the 
 posting of notices at the point of intended diversion, the "in- 
 tent" is expressed in the notice. Following the notice, the 
 steps are the recording of the notice and the initiation of the 
 construction work within the time designated generally ten 
 and sixty days respectively the prosecution of construction 
 to completion with reasonable diligence and the application to 
 beneficial use. If the steps be followed, the water right dates 
 from the posting of the notice. 
 
 The question of reasonable diligence is a serious one and 
 especially so as a very erroneous view is abroad in the land. 
 A common idea is that all one need do "to hold the claim" is 
 to act about as he would to hold a mining claim, and the re- 
 sult is that the occasional use of a shovel and wheelbarrow are 
 supposed to satisfy the requirement. The error of this view 
 was shown in a very early Nevada case, Ophir Mining Com- 
 pany v. Carpenter (4 Nev. 534) which is often quoted on this 
 question by other courts. The following sentences are very 
 much to the point and picture conditions of far too many of 
 our so-called water claims : 
 
 If the labor of twenty men for three or four months, in a period 
 of two years and a half, constitutes diligence in the prosecution of 
 such a vast enterprise as this, it is difficult, if not impossible, to desig- 
 nate the entire want of diligence. The manner in which this work 
 was prosecuted certainly does not accord with what is generally 
 understood to be reasonable diligence. Diligence is denned to be the 
 "steady application to business of any kind, constant effort to accom- 
 plish any undertaking." The law does not require any unusual or 
 extraordinary efforts, but only that which is usual, ordinary and 
 reasonable. The diligence required in cases of this kind is that con- 
 stancy or steadiness of purpose or labor which is usual with men 
 
40 ELEMENTS OF WESTERN WATER LAW 
 
 engaged in like enterprises, and who desire a speedy accomplishment 
 of their designs. Such assiduity in the prosecution of the enterprise 
 as will manifest to the world a bona fide intention to complete it 
 within a reasonable time. It is doing of an act, or series of acts, with 
 all practicable expedition, with no delay, except such as may be inci- 
 dent to the work itself. . . . The weather would not have pre- 
 vented work upon this ditch ordinarily more than three or four months 
 in the year, hence labor upon it could probably have been prosecuted 
 during eight or nine months out of every twelve. Here, however, there 
 was a period of thirty months, when only about three months' work 
 was done, or one month out of every ten. Rose during this time may 
 have dreamed of his canal completed, seen it with his mind's eye 
 yielding him a great revenue; he may have indulged the hope of provi- 
 dential interposition in his favor; but this cannot be called a diligent 
 prosecution of his enterprise. Surely he could hardly have expected 
 to complete it during his natural life by such efforts as were made 
 through this period. 
 
 As the question of diligence is one of fact it will ordinar- 
 ily, in case of litigation, be decided by a local jury. The jury 
 may have a far less stringent view of "that constancy or stead- 
 iness of purpose or labor," than the ordinary engineer, but it 
 will be obliged to decide on at least a fair degree of it. The 
 size and character of the works, the natural conditions, in- 
 cluding climate and material, and all other modifying ele- 
 ments, must be considered. Illness or lack of money are gen- 
 erally held to be no excuse for delay but the latter has been 
 accepted as a valid excuse in Colorado and Idaho. 
 
 Section 1422 of the Civil Code of California was amended 
 in 1903 to provide that when the "place of intended diversion 
 or any part of the route" is within a national park, forest re- 
 serve or other reservation, the claimant shall have sixty days 
 from the date of approval of his application to occupy such 
 national park, etc., within which to commence work. Al- 
 though not so provided by statute in other states, the delay 
 caused in getting the approval of federal bureaus will be ex- 
 cused in passing upon the question of reasonable diligence. 
 In Grant Realty Co. v. Ham, Yearsley and Ryrie (165 Pac. 
 495), the Supreme Court of Washington held that "condemna- 
 tion for a site for an impounding dam or intake by an appro- 
 priator who does not own such a site is just as much matter 
 incident to the enterprise to which the dam or intake is an es- 
 sential as is the actual construction of the dam or intake" and 
 that, therefore, the delay in actual construction work caused 
 by the prosecution of condemnation proceedings with reason- 
 able diligence is excusable. 
 
 The state statutes providing for posting notices of ap- 
 propriation fix the date of the posting of notice as the incep- 
 
THE DOCTRINE OF APPROPRIATION 41 
 
 tion of the claim under it. Where there are no statutes to 
 govern the specific appropriation the original court rule ap- 
 plies (see quotation from Conger v. Weaver in first chapter), 
 and the right relates back to the first substantial act of the 
 appropriator for the acquisition of the right, whether that act 
 be the actual commencement of construction work or other 
 necessary work incident thereto, provided always that reason- 
 able diligence is exercised in finally perfecting the appropria- 
 tion. This rule was applied by the Supreme Court of Wash- 
 ington in Sumner Lumber and Shingle Co. v. Pacific Coast 
 Power Co. (131 Pac. 220), as the Court held that the appropri- 
 ation statutes of Washington did not require a notice in ap- 
 propriating water for power purposes. As stated in the first 
 chapter, in citing Wells v. Mantes, where the statute does 
 provide posting of notice, one who does not follow the statute 
 loses the benefit of the doctrine of relation and his priority 
 dates only from the completion of the construction work. 
 
 Incomplete Appropriations 
 
 Prior to the completion of the diversion works and the 
 readiness to apply the water to beneficial use the appropria- 
 tion is incomplete. In Rincon Water & Power Company v. 
 Anaheim Union Water Company (115 Fed. 543) Judge Wei- 
 born after quoting Sections 1415 to 1418 of the California Civil 
 Code said : 
 
 It is obvious that a person who intends to become an appropriator 
 under these sections cannot acquire the exclusive right to the use of 
 the water he intends appropriating, nor maintain any suit, either at 
 law or in equity, for its diversion, until all the steps requisite to an 
 appropriation have been taken. . . . From the statutory enact- 
 ments and general principles above quoted and stated, the conclusion 
 is not only fair, but unavoidable, that the only right which a person 
 acquires by posting a notice is the right to prosecute without interfer- 
 ence the works necessary to consummate his intended appropriation. 
 
 The question was more recently before the California Su- 
 preme Court in two cases, resulting from the operations of 
 Los Angeles in the Owens Valley Inyo Consolidated Water 
 Company v. Jess (161 Cal. 516) decided Dec. 11, 1911, and 
 Merritt v. Los Angeles (162 Cal. 47) decided Jan. 19, 1912. 
 The plaintiff in each case had filed a notice of appropriation on 
 a stream within a national forest and had made application to 
 the Forest Service for permission to construct the conduit. 
 No work had been done in either case as the Forest Service 
 had not acted on the application, and Section 1422 of the Civil 
 Code allowed 60 days after the grant of permission from the 
 federal authorities in which to begin construction. Each 
 action was brought to obtain an adjudication of the alleged 
 
42 ELEMENTS OF WESTERN WATER LAW 
 
 conflicting claims, and the lower court, following the early de- 
 cisions, decided that the plaintiff had no property interest on 
 which to base the suit. The Supreme Court, however, decided 
 that the plaintiff had "an incomplete, incipient, conditional 
 right in the water, which is a vested interest in real property, 
 and which may be adjudged to be such in an action to de- 
 termine conflicting claims". In the later case the Supreme 
 Court added : 
 
 Such judgment, of course, should not declare the plaintiff abso- 
 lutely entitled to the water, nor enjoin the defendant from taking or 
 using it during the intervening time prior to the completion of plain- 
 tiff's works to a stage which will enable him to divert and use it. It 
 should only declare and describe the plaintiff's contingent right to use 
 the water and enjoin adverse claims or uses injurious thereto. 
 
 The only effect of the two decisions, therefore, is to secure 
 to the owner of an incomplete right a determination of con- 
 flicting claims. They do not allow interference with either 
 construction of works or actual diversions. 
 
 The Measure of the Right * 
 
 Under a great many of the early decisions not only was 
 the maximum capacity of the ditch decreed, but very often the 
 amount mentioned in the notice, which might be far in excess 
 of the maximum capacity. The holders of these old rights very 
 naturally looked upon the amount decreed as their water/ 
 whether they had use for it or not, and believed that they had 
 the right to sell as desired. No court would tolerate such a 
 view today. It is now generally held that a right to the use 
 of water is limited in time and volume to the extent of the 
 needs of the possessor thereof. 
 
 The rule is well illustrated by the following quotation 
 from McCoy v. Huntley (119 Pac. 481) decided by the Su- 
 preme Court of Oregon Jan. 15, 1912: 
 
 We see no reason why, even in cases involving prior and subse- 
 quent appropriations of water, the courts cannot require the appropri- 
 ators to alternate in the use of the water. The time when water may 
 be used recklessly or carelessly has passed in this State. With 
 increasing settlement water has become too scarce and too precious 
 to justify any but an economical use of it. An appropriator has only 
 the right to use so much as his needs require and at the time his needs 
 require. And if these are satisfied by a use of the whole flow every 
 other day, or every alternate week, he ought not to be heard to com- 
 plain. It is evident that from some cause or from a variety of causes 
 the waters of Pine creek are diminishing in volume at the point where 
 the parties to this controversy are residing. It is now probable 
 that to divide the water, without alternating, would injure both parties. 
 A test, since the preliminary order was made in this case in 1906, 
 
THE DOCTRINE OF APPROPRIATION 43 - 
 
 indicates that by the method adopted both parties can raise good 
 crops and both prosper. 
 
 Another excellent statement of the rule is the following 
 from the Montana case of Conrow v. Huffine (138 Pac. 1094; : 
 
 Under this rule, the extent of the right of the first appropriator 
 is measured by the capacity of the original ditch. After the use has 
 been installed, however, if the capacity of the ditch exceeds the amount 
 required for reasonable use, the necessity for the use, and not tho. 
 size of the ditch, is the measure of the extent of the right * * * The 
 tendency of recent decisions of the courts in the arid states is to 
 disregard entirely the capacity of the ditch and regard the actual 
 beneficial use, installed within a reasonable time after the appropria- 
 tion has been made, as the test of the extent of the right. 
 
 In the Alaska Juneau case the lower court, in its findings 
 of fact, had fixed the capacity of the diversion flume of the 
 Ebner Mining Co. as 3200 inches, but in its decree it awarded 
 said company 10,000 inches the amount stated in the notice 
 of water appropriation posted in behalf of the company. In 
 remanding the cause to the court below, the Circuit Court of 
 Appeals ordered that the decree should be changed to conform 
 to the capacity of the flume. This order is in accordance with 
 the well accepted principle that the first measure of an ap- 
 propriator's right is the amount stated in his notice, but that 
 his right upon the completion of his diversion works is lim- 
 ited to the capacity of such works. 
 
 Principles of Prior Appropriation 
 
 Probably the best judicial summary of the principles of 
 prior appropriation appearing in the reported cases is that of 
 Judge Hawley in Union Mill & Mining Company v. Dangberg 
 (81 Fed. 73), decided May 24, 1897. It was Judge Hawley 
 who, when a Justice of the Nevada Supreme Court, wrote the 
 opinion in Jones v. Adams overruling Van Sickle v. Haines 
 and abrogating the doctrine of riparian rights in Nevada. His 
 opinions in both the law of mines and the law of waters show 
 a deep knowledge of the industries affected and an earnest de- 
 sire to assist in bettering conditions. The reader will find the 
 Dangberg case both interesting and instructive. The sum- 
 mary follows : 
 
 Under the principles of prior appropriation, the law is well set- 
 tled that the right to water flowing in the public streams may bo 
 acquired by an actual appropriation of the water for a beneficial use; 
 that, if it is used for irrigation, the appropriator is only entitled to 
 the amount of water that is necessary to irrigate his land, by making 
 a reasonable use of the water; that the object had in view at the 
 time of the appropriation and diversion of the water is to be consid- 
 ered in connection with the extent and right of appropriation; that, 
 
44 ELEMENTS OF WESTERN WATER IAW 
 
 if the capacity of the flume, ditch, canal, or other aqueduct, by means 
 of which the water is conducted, is of greater capacity than is neces* 
 sary to irrigate the lands of the appropriator, he will be restricted to 
 the quantity of water needed for the purposes of irrigation, for water- 
 ing his stock, and for domestic use; that the same rule applies to an 
 appropriation made for any other beneficial use or purpose; that no 
 person can, by virtue of his appropriation, acquire a right to any more 
 water than is necessary for the purpose of his appropriation; that, if 
 the water is used for the purpose of irrigating lands owned by the 
 appropriator, the right is not confined to the amount of water used at 
 the time the appropriation is made; that the appropriator is entitled, 
 not only to his needs and necessities, at that time, but to such other 
 and further amount of water, within the capacity of his ditch, as would 
 be required for the future improvement and extended cultivation of 
 his lands, if the right is otherwise kept up; that the intention of the 
 appropriator, his object and purpose in making the appropriation, his 
 acts and conduct in regard thereto, the quantity and character of land 
 owned by him, his necessities, ability, and surroundings, must be 
 considered by the courts, in connection with the extent of his actual 
 appropriation and use, in determining and denning his rights; that 
 the mere act of commencing the construction of a ditch with i 
 avowed intention of appropriating a given quantity of water from a 
 stream gives no right to the water unless this purpose and intention 
 are carried out by the reasonable, diligent, and effectual prosecution 
 of the work to the final completion of the ditch, and diversion of the 
 water to soifte beneficial use; that the rights acquired by the appropri- 
 ator must be exercised with reference to the general condition of the 
 country and the necessities of the community, and measured in its 
 extent by the actual needs of the particular purpose for which the 
 appropriation is made, and not for the purpose of obtaining a monopoly 
 of the water, so as to prevent its use for a beneficial purpose by other 
 persons; that the diversion of the water ripens into a valid appropria- 
 tion only where it is utilized by the appropriator for a beneficial use; 
 that the surplus or waste water of a stream may be appropriated, 
 subject to the rights of prior appropriate rs, and such an appropriator 
 is entitled to use all such waters; that, in controversies between 
 prior and subsequent appropriators of water, the question generaliy 
 is whether the use and enjoyment of the water for the purposes to 
 which the water is applied by the prior appropriator have been in any 
 manner impaired by the acts of the subsequent appropriator. (Union 
 Mill & Mining Company v. Dangberg, 81 Fed. 73.) 
 
CHAPTER V 
 LOSS OF WATER RIGHTS 
 
 Water rights, like other real property, may be lost by 
 abandonment, forfeiture, adverse user or prescription, or 
 estoppel. 
 
 Abandonment and Forfeiture 
 
 Abandonment is often denned as "the relinquishment or 
 surrender of rights or property by one person to another", 
 but in the law of waters abandonment simply adds to the 
 unappropriated public waters and the benefits therefrom are 
 not intended to accrue to, a particular person. It consists of 
 the two elements, act and intention; although the latter is 
 generally considered the "essence" thereof. As stated in Utt 
 
 v. Frey (106 Cal. 397) : 
 
 The mere intention to abandon, if not coupled with yielding up 
 possession or a cessation of user, is not sufficient; nor will the nonuser 
 alone without an intention to abandon be_^ held to amount to an aban- 
 donment. Abandonment is a question of fact to be determined by a 
 jury or the court sitting as such. 
 
 The intention to abandon must be shown by nonuse and 
 similar acts, but nonuse, unless continued for an unreasonable 
 period, will not be sufficient. The presumption created by 
 even an unreasonable nonuse may be overcome by satisfactory 
 proofs. The opinion of the Supreme Court of Montana in 
 Smith v. Hope Mining Company (45 Pac. 632) is especially 
 noteworthy as the water to run a mill had not been used for 
 nine years, but the machinery was cared for and maintained 
 in good condition during the period of nonuse. The Court 
 said: 
 
 It is true that the evidence shows without controversy that the 
 Algonquin Company did not use the waters, in their mill or otherwise, 
 for a period of about nine years following 1883. But mere nonuser- of 
 a water right is not abandonment. The nonuser of water for so long 
 a period, and especially a period longer than the statute of limitations, 
 is certainly very potent evidence, if it stood alone, of an intention to 
 
 45 
 
46 ELEMENTS OF WESTERN WATER LAW 
 
 ./ 
 
 abandon. . . . But whatever force the fact of nonuser for nine 
 years may have had in showing an intention to abandon, that force 
 was wholly offset and contradicted by the other evidence in the case, 
 so as to leave, in our opinion, not even a conflict of testimony. 
 
 As riparian rights to the use of water do not depend 
 upon use nor cease with disuse, they cannot be lost by aban- 
 donment, so that this question can only be raised regarding 
 rights by appropriation. Although water rights and ditches 
 are generally thought of as one, they are distinct property in- 
 terests and either may be held without the other. A ditch can 
 accordingly be abandoned without abandoning the water 
 right. Likewise water may be turned into natural water 
 courses for diversion at lower points without it being held an 
 abandonment that is, the waterway may be used as part of 
 the ditch system. It is also held without exception that the 
 point of diversion, the place of use and the manner of use may 
 be changed without loss of right, provided no other user is 
 injured thereby. 
 
 As non-use under the court rulings simply raises the pre- 
 sumption of abandonment, a number of the western states 
 have fixed by statute a definite period for which non-use will 
 work a forfeiture of the right. The prescribed period in Utah 
 is seven years ; in Idaho, Nevada and Wyoming five years ; in 
 New Mexico four years; in California, North Dakota and 
 South Dakota three years ; in Oklahoma two years ; in Oregon 
 one year. Both the Utah and Oregon statutes contain the 
 added provision that a question of abandonment shall be one 
 of fact, to be tried and determined as other questions of fact. 
 The virtue of the two statutes is thereby destroyed as the aim 
 of such statutes is to definitely fix the period of non-use which 
 shall constitute a forfeiture, and thus preclude court proceed- 
 ings to determine the intention. 
 
 Section 46 of the South Dakota irrigation act of 1907 pro- 
 vides that, when a party entitled to the use of water fails to 
 beneficially use all or any portion of the waters claimed by 
 him for a period of three years, such unused waters shall re- 
 vert to the public. The Supreme Court of South Dakota in 
 St. Germain Irrigating Co. v. Hawthorn Ditch Co. (143 N. W. 
 124) held that the section is void as to a riparian owner but 
 valid as to an appropriator. It added, "A riparian right to 
 use such waters of a flowing stream cannot be lost by disuse". 
 
 Section 20a was added to the California water commis- 
 sion act in 1917, and is practically the same as Section 46 of 
 the South Dakota statute, commented on above. Prior to 
 1917 there was no California statute fixing the period of non- 
 use which would ripen into a forfeiture. The case of Smith v. 
 
LOSS OF WATER RIGHTS 47 
 
 Hawkins (110 Cal. 122) is, therefore, still of importance in 
 California, and has been cited as a leading authority on the 
 question of forfeiture, or loss of right through nonuse, in other 
 jurisdictions. The court therein distinguishes between aban- 
 donment and forfeiture, and on account of its importance the 
 following long quotation is given: 
 
 Section 1411 of the Civil Code declares that the appropriation 
 must be for some useful or beneficial purpose, and when the appropri- 
 ator or his successor in interest ceases to use it for such purpose, the 
 right ceases. This section deals with the forfeiture of a right by non- 
 user alone. We say nonuser, as distinguished from abandonment. 
 If an appropriator has, in fact, abandoned his right, it would matter 
 not for how long a time he had ceased to use the water, for the moment 
 that the abandonment itself was complete his rights would cease and 
 determine. Upon the other hand, he may have leased his property, and 
 paid taxes thereon, thus negativing the idea of abandonment, as in this 
 case, and yet may have failed for many years to make any beneficial 
 use of the water he has appropriated. The question presented, there- 
 fore, is not one of abandonment, but one of nonuser merely, and, as 
 such, involves a construction of Section 1411 of the Civil Code. That 
 section, as has been said, makes a cessation of use by the appropriator 
 work a forfeiture of his right, and the question for determination is, 
 How long must this nonuser continue before the right lapses? 
 
 Upon this point the legislature has made no specific declaration, 
 but, by analogy, we hold that a continuous nonuser for five years will 
 forfeit the right. The right to use the water ceasing at that time, the 
 rights of way for ditches and the like, which are incidental to the 
 primary right of use, would fall also, and the servient tenement would 
 be thus relieved from the servitude. 
 
 In this state five years is the period fixed by law for the ripening 
 of an adverse possession into a prescriptive title. Five years is also 
 the period declared by law after which a prescriptive right depending 
 upon enjoyment is lost for nonuser; and for analogous reasons we con- 
 sider it to be a just and proper measure of time for the forfeiture of 
 an appropriator's rights for a failure to use the water for a beneficial 
 purpose. 
 
 In the preceding chapter it was stated that under the 
 doctrine of prior appropriation one is given a reasonable time 
 after the completion of the diversion works in which to apply 
 the water claimed to beneficial use. In the case of an irriga- 
 tion project this application requires a number of years which 
 is definitely fixed in those states where appropriations are 
 made by application to the state engineer, but which, in states 
 where the posting of notices is still tolerated, is limited only 
 by the rule of reasonable diligence. This time limit for the 
 larger projects has seldom been passed upon in the reported 
 cases. The five-year period fixed in Smith v. Hawkins must 
 not be taken as a precedent in cases of incomplete appropria- 
 
48 ELEMENTS OF WESTERN WATER IAW 
 
 tions, as in the latter the right to the full amount of the ap- 
 propriation is conditioned upon the irrigation of all the land 
 under the ditch within a reasonable time. Smith v. Hawkins 
 deals with a right which had become completely vested and 
 later fell into disuse. It is believed that the larger irrigation 
 projects will be allowed a longer period than five years in 
 which to apply all the water to beneficial use, as the settle- 
 ment of such generally necessitates a greater time. 
 
 Adverse Use or Prescription 
 
 These are a very few cases involving the alleged wrongful 
 diversion of water in which a right by adverse use or prescrip- 
 tion is not pleaded. Nevertheless there are very few cases in 
 in which such title is upheld, as it is seldom that a case pre- 
 sents all the elements necessary to prove adverse use. In 
 order to ripen into title the adverse use must be continuous 
 for the statutory period, open, notorious, peaceable, under 
 claim or color of right, and to the damage of the water-user 
 against whom the right accrues. The burden of proof is on 
 the claimant of the adverse title. 
 
 The statutory period referred to is the period provided in 
 the statute of limitations regarding actions pertaining to real 
 property. The period for the western states is as follows: 
 Arizona, three years; California, Colorado, Idaho and Ne- 
 vada, five years; Utah, seven years; Montana, Nebraska, 
 North Dakota, Oregon, Texas, Washington and Wyoming, 
 ten years ; Kansas, fifteen years ; South Dakota, twenty years. 
 By "continuous" is not meant that the use should be unceas- 
 ing for the period, but simply that the claimant used the 
 water during such times as he needed it. In the case of irri- 
 gation the water might be needed but one day during each 
 month of the irrigation season, and such use if made for the 
 statutory period would be held "continuous." 
 
 "Open" and "notorious" signify that the use has not been 
 by stealth but on the contrary "before all the world", so as to 
 be generally known. "Peaceable" (or "uninterrupted") means 
 that the original possessor of the right has not interfered with 
 the adverse use. Any interference or interruption, however 
 slight, will prevent the acquisition of the right. Mere verbal 
 protests, however, are not considered interruptions the lat- 
 ter must be due to some physical act, such as closing down ;i 
 headgate, cutting a ditch bank, or breaking a diversion dam. 
 
 The claimant must consider and treat the right as his 
 own and not acknowledge a superior claim on the part of the 
 original owner. If at any time during the statutory period 
 
LOSS OF WATER RIGHTS 49 
 
 permission to divert the water has been sought, the adverse 
 claim must fail. 
 
 That the use has been to the damage or detriment of the 
 original possessor is generally the most difficult of the many 
 points to prove. Regarding the damage as between appro- 
 priators, Judge Hawley in Union Mill and Mining Company 
 v. Dangberg (81 Fed. 73) said, "There must have been such a 
 use of the water, and such damage, as would raise a presump- 
 tion that complainant would not have submitted to it unless 
 the respondents had acquired the right to use it." 
 
 In the first edition of this book, the writer stated that the 
 current idea, that an appropriator in California by diversion 
 and use for five years secures an absolute right as against 
 lower riparian owners, was erroneous. This statement was 
 based upon decisions of the California Supreme Court made at 
 that time indicating that the diversion by an appropriator will 
 be allowed in all cases where injury, either present or future, 
 would not be done to riparian owners. It was believed that a 
 diversion which did not directly damage the riparian owner 
 could not be considered adverse. The recent California case 
 of Horst Company v. Tarr Mining Co. (163 Pac. 492) clearly 
 shows, however, that the "current view" is the correct one. In 
 that case the lower riparian owners attempted to enjoin the 
 upper appropriators, who had been diverting the waters of 
 Bear River for upwards of fifty years, on the grounds that the 
 diversion had only recently, and within five years of the initia- 
 tion of the suit, deprived the riparian owners of the natural 
 flow of the stream. The Court held, however, that the plaint- 
 iffs were entitled to the full flow of the stream by their lands 
 at all times and that any taking above to non-riparian lands 
 was an invasion of their rights, whether they used the water 
 or not, and regardless of the fact that the water remaining in 
 the stream may have been sufficient for their needs and uses. 
 The diversion for five years, therefore, gave the appropriators 
 "a perfect title in fee, good against all lower riparian propri- 
 etors * * * ." The case is especially strong on this point 
 as the plaintiffs claimed that the defendants in former 
 years had brought from other sources and emptied into Wolf 
 Creek, a branch of the Bear River, water equivalent in amount 
 to that diverted from the main stream, and that for this reason 
 the natural flow of the stream at plaintiffs' land was unaf- 
 fected. 
 
 It should be apparent to all that an appropriator can 
 secure no adverse title against an upper riparian owner, but 
 cases are constantly arising where this plea is made. In Rog- 
 
50 ELEMENTS OF WESTERN t WATER LAW 
 
 ers v. Overacker (4 Cal. App. 333) the California District 
 Court of Appeal in dealing with such -a plea said: 
 
 The rule seems to be as laid down in Bathgate v. Irvine, 126 Cal. 
 135, 77 Am. St. Rep. 158, 58 Pac. 442, and Hargrave v. Cook, 108 Cal. 72, 
 41 Pac. 18, 30 L.R.A. 390. In the first case it was said, approving the 
 latter case, that a lower riparian owner cannot acquire a right, either 
 by prior appropriation or by prescription or adverse user, as against 
 an upper riparian proprietor whose rights antedate the appropriation 
 and user, and the mere nonuser of the water by the upper proprietor 
 and his permitting the water to pass down to the lands of the lower 
 owner cannot make the user of the lower owner adverse or strengthen 
 his claim of appropriation or prescription. 
 
 The expression "as against an upper riparian proprietor 
 whose rights antedate the appropriation and user" refers to 
 the well settled rule that the rights of the appropriator are 
 superior to those of the riparian owner where the former had 
 initiated his appropriation while the riparian land in question 
 was unentered public land. Occasionally, even in the reported 
 cases, the rights of the appropriator are considered superior 
 if initiated before patent issued for the riparian land. The 
 present accepted view is, however, that the riparian owner's 
 rights date from his entry of the land and not from the issu- 
 ance of patent, and, therefore, to be superior, the appropriator 
 must have initiated his rights to the water prior to the time 
 the riparian owner initiated his rights to the land. 
 
 Estoppel 
 
 "Estoppel by silence" arises where a person who, by 
 force of circumstances, is under a duty to another to speak re- 
 frains from doing so and thereby leads the other to believe in 
 the existence of a state of facts in reliance upon which he acts 
 to his prejudice (16 Cyc. 681). 
 
 Although the general principles of appropriation are 
 understood by those diverting or intending to divert water, 
 and especially the rule that the subsequent appropriator takes 
 only what is left, it is very common to have the claim made 
 that no notice of the rights of the opposing party was given 
 and that said party is estopped from setting up a superior 
 right. The courts very early in the mining period expressed 
 themselves strongly to the contrary, but the claim still per- 
 sists. In a comparatively recent California case dealing with 
 underground waters it is said : 
 
 The mere fact that the defendants expended money in sinking 
 the wells and putting in the pumps each upon his own land, with the 
 knowledge of the plaintiffs and without objection by them, creates no 
 estoppel. A mere passive acquiescence when one is under no duty 
 
LOSS OF WATER RIGHTS 51 
 
 to speak does not raise an estoppel. (Verdugo Canyon Water Company 
 v. Verdugo, 152 Cal. 655.) 
 
 Practically the same language has been used in a number 
 of cases where the point was raised. It is theref re established 
 beyond doubt that neither a riparian owner nor an appropri- 
 ator need serve notice of existing rights upon a subsequent 
 appropriator engaged in the construction of diversion or stor- 
 age works. 
 
 Rights of Way by Prescription 
 
 Rights of way for ditches may be acquired by prescrip- 
 tion in the same way as water rights. The most serious ele- 
 ment in so proving is the "color of title". After a ditch has 
 been constructed and operated for years it is very difficult to 
 show that the right does not rest upon permission to occupy 
 given by the owner of the land crossed that is, parol license. 
 The statute of frauds provides that interest in real property 
 can be conveyed only by written instruments. As a ditch 
 right of way is such an interest, the original and strict legal 
 rule is that the right cannot be founded on a parol license; 
 but the rule has been modified, if not reversed, in a great many 
 of the states. 
 
 In the case of Gustin v. Harting (121 Pac. 522), decided 
 Feb. 17, 1912, the Supreme Court of Wyoming considered at 
 great length the question as to whether the plaintiff had ac- 
 quired a right of way for a flume by prescription and also the 
 right to maintain it under an irrevocable license it being ad- 
 mitted that the flume had been constructed with the parol con- 
 sent of the landowner, the defendant. It was held that, under 
 the existing facts, the license was irrevocable and the right to 
 maintain the flume secured by prescription. In reaching its 
 conclusion the Court said : , 
 
 The principle that a parol license, when executed by the expendi- 
 ture of money or labor, if not given for a mere temporary purpose, 
 becomes irrevocable, has been recognized and applied in several other 
 cases involving irrigating works. 
 
 Among the many cases cited and examined in support of 
 the principle are some from California, Colorado, Nebraska 
 and Oregon, showing that they also recognize the modified 
 rule. To these Idaho, Nevada and Utah may be added. 
 
 The Supreme Courts of Montana and Washington refuse 
 to accept the modified rule. In Archer v. Chicago M. & St. P. 
 Ry. Co. (108 Pac. 571), decided April 2, 1910, the Supreme 
 Court of Montana considered cases in favor of the new rule 
 
 but held that, "sound reasoning sustains the 
 
 rule that a parol license of the character of the one under con- 
 sideration is always revocable at the pleasure of the licensor." 
 
CHAPTER VI 
 WATER RIGHT LEGISLATION 
 
 Sections 1410 to 1422 of the Civil Code of California are 
 given in the first chapter to illustrate the earliest legislation 
 governing the appropriation of water. As shown, the sections 
 simply provide for the posting and recording of notices, and 
 for the benefits of the doctrine of relation. They include no 
 provision for public inspection at any stage. They are like- 
 wise silent regarding the adjudication of water rights and 
 the public distribution of water in accordance with decrees. 
 
 A little reflection will convince the reader that the goal 
 sought in water right conflicts is the distribution of water 
 among those entitled to its use. Litigation resulting in an 
 adjudication of water rights is but the means to this end. 
 Likewise, an orderly system for the proper record and con- 
 trol of the initiation of water rights is designed to fix the pri- 
 ority of the new rights so that the water may be distributed in 
 accordance therewith without further adjudication or litiga- 
 tion. 
 
 Legislation regarding water rights to be complete, there- 
 fore, must provide for the three essentials : the acquirement or 
 initiation of rights; the definition or adjudication of existing 
 rights; and the distribution of water among those entitled to 
 its use. In the following paragraphs the main provisions of 
 the legislation covering these three points will be discussed 
 by states, beginning with Colorado. 
 
 Colorado 
 
 Acquirement of Rights. The first statutes regarding 
 water rights adopted in the various western states were pat- 
 terned after those of California. The first state to make any 
 advance was Colorado where the office of state engineer was 
 established in 1881. 
 
 At the same session the so-called "Map and Statement" 
 act was adopted but, owing to a defective title, was held un- 
 
 52 
 
WATER RIGHT LEGISLATION 53 
 
 constitutional in 1899. A second act, very similar to the first, 
 was passed in 1903, and now governs the acquirement of 
 rights. It provides that within sixty days after the commence- 
 ment of the surveys or of the actual construction of any ditch 
 or reservoir or enlargement or extension thereof, a filing must 
 be made in the office of the state engineer of duplicate maps 
 and statements containing the information required by the act 
 and of a form satisfactory to the state engineer. If satis- 
 factory to the state engineer one copy is filed in his office and 
 the other certified and returned to the claimant who must, 
 within 90 days from date of commencement, file it in the office 
 of the county clerk of county in which the headgate or reser- 
 voir lies. It is further provided that a certified copy of the 
 map and statement shall be prima facie evidence of the in- 
 tent of the claimant. The Act of 1881 provided that the right 
 dated back to the commencement of the work upon compli- 
 ance with the act and the exercise of reasonable diligence in 
 construction. The present act is silent on this important 
 point, but where all the prescribed steps are taken the courts 
 will undoubtedly hold that the right dates from the com- 
 mencement of the work. 
 
 The state engineer has issued a circular containing the list 
 of fees (Act of 1911), text of forms, and the rules and regula- 
 tions in regard to the preparation of maps and statements. 
 The circular states, "It is compulsory to use the forms of 
 statements and affidavits as given herein. It will save time and 
 delays." There is no question, therefore, but that the state 
 engineer has a satisfactory record of the intention of new ap- 
 propriators in Colorado, but there his supervision ends. Other 
 than the provision that due diligence in construction must be 
 exercised, the act is silent regarding any record of proof 
 thereof, so that the claimant, in case of dispute, must settle 
 the point in the courts. In regard to the acquirement of 
 rights, therefore, Colorado has but slightly improved upon the 
 old system. 
 
 Adjudication of Rights. Colorado in 1879 and 1881 
 adopted a special procedure for the adjudication of water 
 rights. It was provided that on or before June 1, 1881, every 
 claimant of an interest in a ditch or reservoir within any 
 water district should file with the clerk of the district court 
 having jurisdiction a sworn statement setting forth among 
 other things the date of his appropriation by original con- 
 struction, also by enlargement or extension, the amount of 
 water claimed, the existing capacity of ditch and the number 
 of acres lying under and being or proposed to be irrigated 
 
54 . ELEMENTS OP WESTERN WATER LAW 
 
 by each ditch or reservoir. Since the date for filing such 
 claims, June 1, 1881, an adjudication of all rights to water 
 from a common source within a district is initiated by one or 
 more interested persons (who have filed the required claim) 
 petitioning the district court having jurisdiction. The judge 
 either sets a day for the taking of evidence in open court or, 
 as is the usual practice, appoints a referee to take and report 
 the evidence, make an abstract and findings upon same and 
 prepare the decree. The referee gives notice of the times and 
 places at which he will take the required evidence and proofs 
 of priority. In regard to the facts to be ascertained, the act 
 provides : 
 
 Said referee shall also examine all witnesses to his own satisfac- 
 tion, touching any point involved in the matter in question, and shall 
 ascertain as far as possible the date of the commencement of each 
 ditch, canal or reservoir, with the original size and carrying capacity 
 thereof, the time of the commencement of each enlargement thereof, 
 with the increased carrying capacity thereby occasioned, the length 
 of time spent in such construction or enlargement, the diligence with 
 which the work was prosecuted, the nature of the work as to difficulty 
 of construction, and all such other facts as may tend to show compli- 
 ance with the law in acquiring the priority of right claimed for said 
 ditch, canal or reservoir; and upon all the facts so obtained shall be 
 determined the relative priorities among the several ditches, canals 
 and reservoirs, the volume or amount of water lawfully appropriated by 
 each, as well as by means of the construction, as by the enlargements 
 thereof, and the time when each such several appropriations took 
 effect. 
 
 After closing the testimony the referee prepares the re- 
 port and form of decree and files it with the court, which after 
 properly ordered hearings either approves or modifies the 
 same. 
 
 The act provides in detail for the many steps in the pro- 
 cedure and is sound from the technically legal standpoint. 
 / Its weakest point is that it does not provide for representa- 
 tion of the public or the state. Many rf the older decrees 
 gave to each party the amount of water claimed, which was 
 generally far in excess of the maximum capacity of the ditch. 
 There should have been measurements by the state engineer 
 of the ditches and the acreage irrigated, but he is not men- 
 tioned in the act. Furthermore, the districts with which the 
 act deals do not always include an entire stream, so that the 
 adjudication in such cases is but partial. Aside from the 
 trouble caused by the excess decrees, the act is to be com- 
 mended as providing at so early a period in the history of irri- 
 gation a special procedure whereby most of the rights were 
 determined. 
 
WATER RIGHT LEGISLATION 55 
 
 Distribution of Water. By an act passed in 1879 Col- 
 orado divided its irrigated territory into a number of districts 
 generally comprising a designated creek, or creeks, and tribu- 
 taries. For each district there was provided a water commis- 
 sioner to be appointed by the governor from persons recom- 
 mended by the boards of county commissioners interested. 
 The principal duty of the water commissioner is to divide the 
 waters of a stream among the ditches according to the prior 
 rights of each, and in so doing to wholly or partially shut the 
 headgates of the later apprqpriators to satisfy the earlier 
 rights. He is also authorized to shut off the supply from any 
 ditch so that the water delivered will in his judgment not 
 allow a wasteful or wrongful use. The changing or interfer- 
 ence with any headgate adjusted by the water commissioner 
 is a misdemeanor subject to a fine of $300, or an imprison- 
 ment of 60 days, or both, and the use of water so wrongfully 
 taken through such a headgate is made prima facie evidence 
 of the guilt of the user. The water commissioners are further 
 empowered to arrest persons meddling with headgates or 
 using water procured through such. The salary of the water 
 commissioner is $5 per day and is paid by the counties served. 
 He does not begin work until called on by two or more per- 
 sons controlling ditches in his district, or by the division 
 engineer. He may engage necessary assistants at $2.50 per 
 day. 
 
 In 1887 Colorado was divided into four divisions along 
 drainage lines with a division superintendent in charge of each 
 division. In 1903 the number was changed to five and the title 
 to division engineers, who are now appointed by the governor 
 from a certified list prepared by the state engineer after an ex- 
 amination of applicants. The division engineers receive from 
 $1,500 to $2,500 per year and traveling expenses, and are paid 
 by the state. The division engineers have general control 
 over the water commissioners of the several districts within 
 their divisions, and, under the general supervision of the state 
 engineer, execute the laws relative to the distribution of 
 water. They may make regulations to secure the fair appor- 
 tionment of water in accordance with the rights of priority. 
 They are required to make stream measurements and rate 
 ditches, and to perform such other duties as the state engineer 
 may direct. Ditch owners feeling themselves injured may 
 appeal from the acts of water commissioner to division engin- 
 eer, and from the latter to the state engineer. 
 
 It will be readily appreciated that the task of dividing 
 water among ditches with valuable crops at stake is a serious 
 
56 ELEMENTS OF WESTERN WATER LAW 
 
 undertaking, and an account of the daily variations in the flow 
 of mountain streams requires much local study and experi- 
 ence. Colorado's plan of having a small number of great 
 divisions along drainage lines each with a state official hav- 
 ing jurisdiction therein, and a number of districts within each 
 division of such size that the diversions may be regulated by 
 one man and an assistant or two, was not only the first to be 
 fixed by statute but remains the type to be followed at the 
 present day. 
 
 Colorado has done more in the construction and operation 
 of reservoirs than any other western state. Among the many 
 statutes it has upon this subject is one allowing "the owner 
 of a reservoir to deliver stored water into a ditch entitled to 
 water or into the public stream to supply appropriations 
 from said stream, and take in exchange therefor from the 
 public stream higher up an equal amount of water, less a 
 reasonable deduction for loss, if any there be, to be determined 
 by the state engineer; . . ." 
 
 In the 15th Biennial Report of the state engineer of Col- 
 orado (1909-1910) is a chapter entitled "Running Reservoir 
 Water in Natural Streams," in which the state engineer 
 describes a series of measurements made to ascertain the 
 losses in running water from mountain reservoirs to lower 
 ditches. The question of such losses is an important one in 
 all of the irrigation states, and the work done in Colorado 
 will serve as a guide elsewhere. 
 
 Wyoming 
 
 Acquirement of Rights. The office of territorial engineer 
 in Wyoming was created in 1886 but the existing legislation, 
 of which the state is so proud, came with statehood in 1890. 
 By constitutional provision the state is divided into four 
 divisions (the limits being fixed by the legislature) with a 
 division superintendent at the head of each, the office of state- 
 engineer is provided, and a Board of Control consisting of 
 the state engineer, as president, and the four division superin- 
 tendents, is given "supervision of the waters of the state, and 
 of their appropriation, distribution and diversion" subject to 
 legislation thereon. 
 
 The statutes adopted in 1890 provide a method of ac- 
 quiring rights very different from any then existing in this 
 country. Instead of posting a notice or starting work and 
 thus initiating a right, the intending appropriator is required 
 to make application to the state engineer for permission to 
 make the appropriation. The application is made on a blank 
 form furnished by the state engineer and among other things 
 
WATER RIGHT LEGISLATION 57 
 
 must state the location and description of the proposed ditch, 
 the time within which it is proposed to begin construction, the 
 time required for completion of construction and the time re- 
 quired for complete application of water to proposed use. If 
 for irrigation, the application must also give the legal sub- 
 divisions of land proposed to be irrigated. The state engineer 
 must approve all applications made in proper form and for 
 beneficial purposes, except where there is no unappropriated 
 water, or where the proposed use conflicts with existing 
 rights, or threatens to prove detrimental to the public inter- 
 est in, which cases he must reject the application. 
 
 If approved, the application will be so endorsed and re- 
 turned to the applicant, and constitutes his authorization to 
 begin construction and perfect the appropriation. 
 
 In cases of applications in excess of 25 second feet, or to 
 reclaim over 1000 acres, the state engineer, before acting on 
 the application, may require additional information in regard 
 to the financial ability and the good faith of the applicant. 
 In the endorsement of approval on the application it is re- 
 quired that actual construction must begin within one year 
 from date of approval, that the construction must be com- 
 pleted within five years from said date, and that final proof of 
 beneficial use of water must be submitted within two years 
 after expiration of time allowed by the state engineer for ap- 
 plication to beneficial use. The state engineer has authority 
 to limit the construction period and the period required for 
 application to beneficial use to a less time than asked for, and 
 also, for good cause shown, to extend the time for the com- 
 pletion of works under an issued permit, and also the time for 
 completing the application of water to beneficial use. Any 
 party may appeal from any action taken by the state engineer 
 to the Board of Control, and from an action by the Board to 
 the district court. 
 
 Applications must be accompanied by maps prepared in 
 accordance with the regulations of the state engineer, and 
 profiles and plans may be required also. 
 
 The statutes do not provide the nature of the proof to be 
 submitted by the appropriator on the completion of the works 
 and on the complete application to beneficial use other than it 
 "being made to appear to the satisfaction of the Board of 
 Control that any application has been perfected in accordance 
 with such application, and the endorsement thereon." On 
 such a showing the Board must issue a certificate setting 
 forth the amount of the appropriation and the number and 
 
58 ELEMENTS OF WESTERN WATER LAW 
 
 date of priority thereof, which date shall be that of filing the 
 application in the office of the state engineer. 
 
 In 1903 a statute specially providing for the appropria- 
 tion of water for storage in reservoirs was adopted. The 
 steps outlined above must be followed except that a descrip- 
 tion of the land to be irrigated by the stored water is not 
 required in the primary, or first, permit. Those who are to 
 apply the water to beneficial use may secure the secondary 
 permit allowing them to do so. The latter shall not be given 
 until the state engineer is convinced that the secondary per- 
 mittee has a sufficient agreement with the owner of the reser- 
 voir, the primary permittee. The 1903 statute also provides 
 for special supervision by a water commissioner when such 
 stored waters are allowed to run to points of use through 
 natural channels and where loss through wrongful diversion 
 is probable en route. When deemed necessary for the protec- 
 tion of the various interests involved, the state engineer may 
 appoint an assistant engineer to superintend and direct the 
 construction work on dams for such reservoirs. 
 
 Definition of Rights. Although new to American legisla- 
 tion, the Wyoming method for the acquirement of rights is 
 far less novel than its method for the definition of rights. 
 In 1886 Wyoming, then a territory, adopted the Colorado 
 system of adjudication but rejected it in 1890 for its present 
 system. 
 
 Instead of leaving the determination of water rights to 
 chance cases between two or more claimants, or to a special 
 procedure initiated by a claimant as in Colorado, Wyoming, 
 having by its constitution declared the natural waters to be 
 the property of the state, decided to make its new Board of 
 Control responsible for this most important matter. 
 
 The Board selects the streams on which rights are to be 
 determined and fixes a time for the taking of testimony. The 
 state engineer through assistants makes a survey of the 
 ditches and the land irrigated or irrigable thereunder and 
 measures the stream and carrying capacity of the ditches. A 
 printed form, called "proof of appropriation", is sent to each 
 claimant. The present practice is to have the division super- 
 intendent make the survey and have the claimant make the 
 "proof of appropriation" on the completion of the survey of 
 his individual holding, so that the "proofs" and survey will 
 correspond. 
 
 On the completion of the survey and the taking of testi- 
 mony or "proofs" by the division superintendent, notice is 
 given of a time and place at which the evidence thus as- 
 
WATER RIGHT LEGISLATION 59 
 
 sembled shall be open to inspection of the various claimants. 
 A regular procedure is provided for contests and hearings be- 
 fore the division superintendent, if such are required after the 
 open inspection. 
 
 After the contests, all the evidence, including original 
 proofs and testimony taken at the subsequent hearings, is 
 transmitted to the Board of Control. At its first regular 
 meeting thereafter, the Board examines all the evidence and 
 enters an order establishing the priorities of the water rights, 
 their amounts, and the character of use of each. For irriga- 
 tion rights, the maximum allowance is one-seventieth of a 
 second foot to the acre. Certificates are issued to each claim- 
 ant in accordance with the order of the Board. Appeals from 
 the order may be taken to the district court within sixty days. 
 
 Distribution of Water. As stated above, Wyoming has 
 been divided into four divisions along drainage lines. The 
 superintendents thereof have powers similar to those of the 
 division engineers in Colorado, regarding the division of the 
 waters among ditches entitled thereto. The Board of Control 
 creates districts where necessary and these districts are in 
 charge of water commissioners upon whom the actual duty of 
 closing headgates rests. The entire Wyoming procedure in 
 regard to this matter is copied from that of Colorado and what 
 difference exists is only in minor details. 
 
 Nebraska 
 
 In 1889 Nebraska adopted legislation providing for the 
 appropriation of water by posting notices as in California, but 
 in 1895 introduced an entirely new system closely following 
 that of Wyoming. As the state at that time was in financial 
 straits, it aimed to create as few new offices as possible and 
 therefore provided that its state board of irrigation should be 
 composed of the governor, attorney-general, and the commis- 
 sioner of public lands and buildings. In 1911 the name of the 
 board was changed to "The State Board of Irrigation, High- 
 ways and Drainage." The board appoints an hydraulic engi- 
 neer as secretary and he is known as the state engineer. The 
 striking difference between the statutes of Wyoming and 
 Nebraska is the comparative brevity of the latter otherwise 
 the Wyoming language is closely followed. 
 
 Acquirement of Rights. The sections providing for the 
 acquirement of rights are practically the same as those of 
 Wyoming. The application is made to the board (the secre- 
 tary, or state engineer, acting for the board) on a printed form 
 furnished by the state engineer, and when in proper form is 
 
60 ELEMENTS OF WESTERN WATER LAW 
 
 approved "if there is unappropriated water in the source of 
 supply . . ., . and if such appropriation is not otherwise 
 detrimental to the public welfare." It is elsewhere further 
 provided, however, that "if a prior appropriation has been 
 made to water the same land to be watered by the applicant" 
 the application shall be rejected. 
 
 It was undoubtedly intended by those who drafted the 
 section that a "prior appropriation" meant a perfected appro- 
 priation that is actual use, or potential use, of water on the 
 land. It is rather an empty expression from any practical 
 point of view and is one instance where the Wyoming section 
 was not followed. Unfortunately for the state the expression 
 was construed by its Supreme Court in Farmers' Irrigation 
 District v. Frank (100 N. W. 286), and it was held that the 
 board could not approve an application to irrigate any land 
 described in an approved application. As the law did not 
 provide that an applicant must make any showing of his title 
 or interest in the land described, the effect of the decision was 
 to deprive one of his right to appropriate water for the simple 
 reason that some promoter had described his land in a former 
 application which had been approved without any notice to 
 the land owner. 
 
 In the case cited, Frank had described thousands of acres 
 belonging to residents of the Farmers' Irrigation District. 
 The case was decided in 1904 and although it evoked bitter 
 criticism from those deprived of what they believed to be a 
 "natural right" the section was not amended until 1911, when 
 the following words were inserted: "... and no permit 
 to irrigate any land shall be allowed unless the owner or 
 owners of such land shall give consent to the same in proper 
 form, duly acknowledged before some officer legally quali- 
 fied to take acknowledgements." 
 
 By a 1913 amendment it is provided that the cost of pro- 
 motion and engineering work shall not be considered as part 
 of the cost of construction, and that one-tenth of the total 
 construction work shall be completed in one year. It is also 
 provided that in the case of an application for power pur- 
 poses, the applicant, after the approval of such application, 
 shall file a monthly statement showing the actual amount of 
 moneys expended for "'right of way and land, labor, salaries, 
 material and machinery, not including construction equip- 
 ment, delivered upon the ground. * * *" 
 
 Definition of Rights. The "definition of the priorities of 
 right to use the public waters of the state" is left to the board 
 of irrigation. Instead of fixing a detailed procedure as in Wy- 
 
WATER RIGHT LEGISLATION 61 
 
 oming the statute provides that "the method of determining 
 the priority and amount of appropriation shall be determined 
 by the said state board. The board accordingly has adopted 
 rules to govern the taking of "proofs of appropriation" and 
 hearings in cases of contests. 
 
 As in the case of applications to acquire rights, the real 
 work is left to the state engineer. Most of the determinations 
 of the old rights have been made without actual -surveys by the 
 state engineer. The state was, therefore, quickly covered, 
 but it is probable that in some cases larger acreages were 
 allowed than should have been. 
 
 After the completion of the determination "certificates of 
 appropriation" are issued to appropriators, as in Wyoming, 
 the maximum allotment for irrigation being one second foot 
 for each 70 acres and in no case to exceed three acre feet per 
 year (as amended in 1911). Appeals may be taken to the 
 district court within 60 days of the determination. 
 
 Distribution of Water. The system for dividing water 
 among the ditches entitled to its use is the same as in Colorado 
 and Wyoming. By statute the state has been divided into two 
 divisions with division superintendents in charge. Before 
 1911 the title was "under-secretary". 
 
 Prior to 1911 the state board created districts within the 
 division on the petition of interested parties, but in 1911 the 
 board was empowered to divide the divisions into subdivis- 
 ions and the latter into districts as they believed necessary. 
 The board appoints one water commissioner for each dis- 
 trict. (Prior to 1911 the title was "under-assistant.") In 
 1911 it was provided that appropriators on April first of each 
 year must give the division superintendent a list of the lands 
 to be watered during the year. Until 1915, the water com- 
 missioners were paid by counties. The statute was amended 
 in 1917 to provide for their payment by the state board. Ne- 
 braska is the first state to so provide, but the unanimous 
 recommendation of those in charge of water distribution in 
 all of the western states is that the state, and not the county, 
 should pay the salary and expenses of the water masters, or 
 commissioners. 
 
 Idaho 
 
 The office of state engineer was created in Idaho in 1895, 
 but his duties were principally in regard to operations under 
 the Carey Act until the adoption of the "new legislation" in 
 1903. 
 
 Acquirement of Rights. Idaho follows the system intro- 
 duced by Wyoming of making intending appropriators apply 
 
62 ELEMENTS OF WESTERN WATER LAW 
 
 to the state engineer on printed forms furnished by him. The 
 instructions issued by the state engineer state that "applica- 
 tion will not be accepted nor permit granted thereunder, un- 
 less the following instructions are carefully carried out, in 
 preparing the application blank and maps" it being required 
 that duplicate maps must be filed before the permit will be 
 granted and where the application is for more than 25 second 
 feet the maps must be prepared from actual surveys. 
 
 As the Idaho constitution provides that "The right to 
 divert and appropriate the unappropriated waters of any 
 natural stream to beneficial uses, shall never be denied," the 
 right of rejecting applications deemed detrimental to the pub- 
 lic welfare, etc., has not been delegated to the state engineer, 
 but he must approve all applications made in proper form and 
 contemplating application to beneficial use. 
 
 The maximum allowance for irrigation purposes is one 
 second foot to 50 acres, and for storage 5 acre feet per acre. 
 The maximum time allowed to complete the construction of 
 works is five years and that for applying water to beneficial 
 use six years (four years in the 1903 statute) in addition there- 
 to. If application to beneficial use is not completed within 
 the period allowed, the date of priority is advanced from the 
 date of filing by an amount equal to the additional time 
 which elapses before such application is complete. Delays 
 due to government legislation or litigation operate to ex- 
 tend the time allowed for completion of construction. A 
 1915 statute provides that, for applications involving more 
 than 25,000 acres, proof of application to beneficial use may 
 be made at any time within ten years after the completion of 
 the works ; and that in such cases it is only necessary to show- 
 that the quantity of water applied for has been used within 
 the limits of the project, regardless of whether each acre 
 within the project has been irrigated. 
 
 It is further required that one-fifth of the construction 
 work shall be done in one-half the time allowed and adverse 
 claimants may contest the right when this is not done. For 
 appropriations not in excess of 25 second feet construction 
 work must be commenced within sixty days of issuance of the 
 permit, and for other appropriations a bond in an amount to 
 be fixed by the state engineer, not exceeding $10,000, must 
 be filed within the said sixty days with the state engineer 
 as a guarantee that the work will be 'completed as provided 
 in the permit. In order to clear the records of the state 
 engineer's office of permits on which the owner has fai'ed 
 to comply with the requirements as to date of commencement 
 
WATER RIGHT LEGISLATION 63 
 
 of work, filing of bond, completion of one-fifth of the work in 
 one-half the time or final completion, the state engineer shall 
 notify the owner giving the grounds on which concellation is 
 proposed and allowing 30 days to show cause why the permit 
 should not be cancelled. Unless sufficient showing is made 
 by the owner of the permit the state engineer may cancel it, 
 the owner if aggrieved having the right of appeal to the dis- 
 trict court. 
 
 The 1903 Idaho statute was the first to provide a regular 
 procedure for proofs of completion of construction and also 
 proofs of complete application to beneficial use. At least sixty 
 days prior to the date set for the completion of the works the 
 holder of the permit must notify the, state engineer of readiness 
 to submit proof, on a form furnished by him containing among 
 other information the amount of water such works can carry 
 and, if for irrigation, the description of the land which can be 
 irrigated. In cases of diversions in excess of 50 second feet 
 the facts set forth in the notice must be certified to by a com- 
 petent irrigation engineer. If the application is for over 6.4 
 second feet, the notice is published by the state engineer in a 
 paper of general circulation in county where works are sit- 
 uated and such publication also states the time and place of 
 submission of final proof. Before the time set the state engi- 
 neer has the works inspected and after such time, and the 
 consideration of any protests which may be made, he issues a 
 certificate stating among other things the purpose of works, 
 the quantity of water which can be carried to place of use, 
 and, if for irrigation, a description of the lands for which water 
 has been made available by the works. 
 
 The same procedure is followed in submitting proof of 
 complete application to beneficial use. If satisfied that the 
 law has been complied with after an examination of all the 
 evidence in relation to such final proof, the state engineer 
 issues a license confirming such use. The date of priority of 
 right under such license is that of filing of application in state 
 engineer's office. 
 
 Adjudication of Rights. The 1903 Idaho statute left the 
 adjudication of water rights to the" courts, but provided that 
 actions could be initiated by a water commissioner for the 
 adjudication of rights to the waters of a stream which had 
 been partly adjudicated. 
 
 It was also provided that whenever a suit to adjudicate 
 rights is filed the court "shall request the state engineer to 
 make an examination of such stream, and the canals and 
 ditches diverting water therefrom, and of all the land being 
 
64 ELEMENTS OF WESTERN WATER LAW 
 
 irrigated by such canals and ditches and other works," and 
 the map and report resulting from such examination shall be 
 "accepted as evidence in the determination of such rights by 
 such court." 
 
 The provision for the initiation of actions by a water 
 commissioner was declared unconstitutional in Bear Lake v. 
 Budge (75 Pac. 615). In Boise City Irrigation & Land Com- 
 pany v. Stewart (77 Pac. 25) the provision for requesting the 
 state engineer to examine and report upon the physical condi- 
 tions was held to be merely directory and not mandatory. The 
 preparation of physical data by the state engineer has been 
 so satisfactory, however, that it is certain that the court will 
 request his services in most cases. The costs of his work are 
 apportioned by the court among the parties to the suit, become 
 a lien against the real property in question, and, if necessary, 
 are collected as ordinary taxes. 
 
 Distribution of Water. The 1903 act provided for three 
 water divisions, for the appointment by the governor of a 
 water commissioner for each division, and for a state board of 
 irrigation to be composed of the three water commissioners 
 and the state engineer. The board had authority to divide the 
 divisions into water districts and to "devise all needful rules 
 for the distribution of water." In 1915 the sections providing 
 for the water commissioners and prescribing the duties thereof 
 were repealed, and the duties of the commissioners were 
 vested in the state engineer. 
 
 Utah 
 
 As the first Mormon settlements in Utah were absolutely 
 dependent upon agriculture, and that upon irrigation, the need 
 of legislation regarding water rights was early recognized. 
 The first territorial legislature, in 1852, gave the control of all 
 "water privileges" to the county courts and authorized them 
 to "exercise such powers as in their judgment shall bes-t 
 . - . . subserve the interests of the settlements in the dis- 
 tribution of water for irrigation or other purposes." The 
 court of Salt Lake County was the only one to act under the 
 statute and it granted water rights, settled disputes in regard 
 thereto and appointed water masters to distribute water 
 according to decrees. The court at that very early date acted 
 about as the Board of Control does in Wyoming today, and 
 if the other county courts had done likewise there would have 
 been no need of further legislation. 
 
 Due to the neglect of the courts, other than that of Salt 
 Lake County, to enforce the law, other legislation was adopted 
 in 1880 and in 1897 the latter following the 1872 California 
 
WATER RIGHT LEGISLATION 65 
 
 statute. The office of state engineer was also created in 1897, 
 but he had little authority regarding water rights until 1903 
 when the present statute was adopted. 
 
 Acquirement of Rights. The present system of acquiring 
 water rights in Utah is based on that of Wyoming and Ne- 
 braska. The application contains the additional information 
 of "the time during which it (the water) is to be used each 
 year" that is the right is, or may be, restricted to certain 
 periods within the year. A notice of the application must be 
 published for 30 days in a newspaper of general circulation 
 within the watershed so that a protest may be made to the 
 state engineer by parties claiming prospective injury and thus 
 assist him in determining whether the new appropriation will 
 conflict with existing rights. 
 
 The 1903 statute provided for a hearing in case of protests, 
 but in 1904 such a procedure was prohibited by court order. 
 No appeal was taken to the supreme court and the provision 
 was omitted when the law was re-enacted in 1905. 
 
 In 1903 statute also authorized the state engineer to 
 reject an application which he deemed detrimental to the 
 public welfare. Following such an action in 1904 the state 
 engineer was reversed by court decree and, again, the case 
 was not appealed and the provision was omitted in the 1905 
 statute. By an amendment of 1911, the state engineer must 
 approve all applications except where they will conflict with 
 existing rights, or where, after submission of the question to 
 court, the latter decides that the application is not for the 
 most beneficial use of the water. 
 
 By an amendment of 1911, Utah follows the 1903 Idaho 
 statute regarding time of beginning and completing work and 
 application to beneficial use, but the state engineer is author- 
 ized, for good cause shown, to extend the five-year and four- 
 year periods to a maximum aggregate allowance of fourteen 
 years from date of approval of application. 
 
 Proof of completion of work is made on regular forms, 
 attested by two witnesses, and accompanied by certified 
 detailed maps. The state engineer issues a certificate of 
 appropriation when satisfied that "the appropriation has been 
 effected." 
 
 Adjudication of Rights. Under the system adopted in 
 1903, the adjudication of rights is initiated by the state engi- 
 neer making a complete survey of the "river system or water 
 source" and collecting all necessary tlata. After completion 
 of survey a statement is filed with clerk of district court, 
 who mails form for statement of claim to each claimant. The 
 
66 ELEMENTS OF WESTERN WATER LAW 
 
 state engineer tabulates the claim and files such with clerk of 
 court. The court may appoint a referee to take further testi- 
 mony. The decree is rendered by the court based on the maps 
 and data of state engineer, the statements of claims, and the 
 testimony taken before referee. A certificate is issued to each 
 owner in accordance with the decree. 
 
 The system has not yet been fairly tried as the surveys 
 and collection of data have not been completed for the first 
 stream chosen the Weber River. The early work was done 
 on an elaborate scale, and the funds necessary for completion 
 are not available. 
 
 Distribution of Water. The state engineer is authorized 
 to divide the state into water districts and a water commis- 
 sioner is appointed by the governor for each district from 
 persons recommended by the state engineer. These water 
 commissioners have the same duties as in the states already 
 discussed, the only innovation is that the state has not been 
 divided into large divisions with superintendents in control. 
 
 Nevada 
 
 Nevada first legislated regarding water claims in 1866 
 when it provided for the filing of certificates and plats by 
 intending appropriators. Further legislation was adopted in 
 1889 and in 1899 the latter being copied after the Wyoming 
 statute, but, as the county instead of the state was made the 
 unit, nothing was done. In 1903, through the efforts of Sen- 
 ator Newlands, who had been probably the foremost leader in 
 securing the passage of the National Reclamation Act of 
 June 17, 1902, the Nevada legislature created the office of 
 state engineer and provided for the definition of water rights 
 and the distribution of water. The influence of the expected 
 benefits of the Reclamation Act on the passage of the 1903 
 Nevada act is shown by the preamble to the latter, wherein 
 the entire Reclamation Act is recited and in addition many 
 paragraphs are included presenting the opportunities for irri- 
 gation development in Nevada and the need of a determination 
 of rights before national aid could be given. 
 
 Acquirement of Rights. The 1903 statute contained no 
 provision for the acquirement of rights, but it was supple- 
 mented in 1^05 by sections so providing copied from the Wyo- 
 ming and Nebraska statutes and containing the requirement 
 of publication first adopted in Utah. In 1907 the maximum 
 quantity which could be appropriated for irrigation purposes 
 was fixed at three acre-feet per acre per year. This maximum 
 annual allowance was changed in 1909 and 1913, and is now as 
 follows : 
 
WATER RIGHT LEGISLATION 67 
 
 
 
 Where water is diverted for direct irrigation, not to exceed one 
 one-hundredth of one cubic foot per second for each acre of land irri- 
 gated; the measurement to be taken where the main ditch enters or 
 becomes adjacent to the land to be irrigated; due allowance for loss 
 to be made by the state engineer in permitting additional water to be 
 diverted into said ditch. Where water is stored, not to exceed four 
 acre feet for each acre to be supplied; that is, four acre feet per acre 
 stored in the reservoir, the losses of evaporation and transmission to 
 be borne by the appropriator. 
 
 Adjudication of Rights. The 1903 statute provided a 
 method for defining rights which followed the Wyoming sys- 
 tem except that no details of procedure were prescribed it 
 being, in that respect, similar to the 1895 Nebraska statute. 
 In 1913 the "water code" was re-enacted in much expanded 
 form, and details of procedure in determining rights were 
 provided. The Supreme Court of Nevada in Anderson v. 
 Kearney (142 Pac. 803) held that the order of determination 
 (under the 1913 statute) was administrative only that with- 
 out a decree of court an order of an administrative officer was 
 not final. The "code" was accordingly amended in 1915 to con- 
 form to the new Oregon procedure (described herein under 
 "Oregon"). 
 
 Distribution of Water. In 1901 a state board of irrigation 
 consisting of the governor, attorney-general and surveyor- 
 general was created to co-operate with federal bureaus in 
 stream gauging and irrigation investigations. In 1903 the 
 state engineer was made a member and secretary of the board. 
 Formerly the board had authority to divide the state "into 
 such water divisions or water districts as seem to it advisable," 
 and to appoint water commissioners to divide the waters of 
 streams according to priorities, but the power to define dis- 
 tricts is now in the state engineer and the power to appoint 
 is in the governor. 
 
 New Mexico, North Dakota, Oklahoma and South Dakota 
 
 In accordance with resolutions adopted by the legisla- 
 tures of Oregon and Washington in 1903-1904 a commission 
 was appointed by the governor of each state to draft a water 
 code. As a result of a joint session of the two commissions 
 with officials of the United States Reclamation Service, Mr. 
 Morris Bien, supervising engineer of the Service in charge of 
 land and legal matters, agreed to prepare a draft for the com- 
 missions. Mr. Bien's draft was widely circulated in order to 
 receive the benefit of the criticism of many interested in the 
 subject. The corrected draft is generally referred to as the 
 "Bien Code," and, although Mr. Bien aimed to take what he 
 
68 ELEMENTS OF WESTERN WATER LAW 
 
 
 
 considered best from all the existing codes, most closely fol- 
 lows the 1903 Utah statute. It was not adopted in Oregon and 
 Washington but was in North Dakota, Oklahoma and South 
 Dakota in 1905 and in New Mexico in 1907. 
 
 Acquirement of Rights. As provided in the 1903 Utah 
 statute, applications must be made to the state engineer who, 
 for stated causes, has the power of rejection. Notice of appli- 
 cation is published and evidence of interested parties consid- 
 ered. In case of approval the state engineer fixes the time 
 for completion of works and for application to beneficial use, 
 not exceeding five years and four years additional respectively 
 from date of approval. He has the power, for causes stated, 
 to extend such times three years and two years respectively. 
 Regarding the proof of completion of works and application 
 to beneficial use the code follows Idaho. 
 
 Adjudication of Rights. That part of the code dealing 
 with the determination of water rights is restricted to five 
 short sections. The state engineer makes "hydrographic sur- 
 veys and investigations of each stream system . . . obtain- 
 ing and recording all available data for the determination, 
 development and adjudication of the water supply of the 
 state." Upon completion of survey, the state engineer deliv- 
 ers what data is deemed necessary to the attorney general who 
 enters "suit on behalf of the state for the determination of all 
 rights to the use of such water, in order that the amount of 
 unappropriated water subject to disposition by the state under 
 the terms of this act may become known." 
 
 In any suit over water rights all claimants must be made 
 parties and, when such suit is filed, the court shall direct 
 the state engineer to make surveys and assemble the neces- 
 sary data. The aim of the sections is to allow the state 
 engineer to secure a determination of the rights on streams 
 most used for irrigation and also to provide for a complete 
 determination on those streams where suit is entered by pri- 
 vate parties. 
 
 Distribution of Water. The distribution of water is 
 cared for as in the states previously discussed. The state is 
 divided by the legislature into three or more divisions along 
 drainage lines. A commissioner is appointed for each division 
 and the commissioners with the state engineer form the board 
 of water commissioners. The state engineer divides each 
 division into districts and the commissioner appoints a water 
 master for each district. In 1913 the office of commissioner in 
 South Dakota was abolished, and the duties thereof given to 
 the state engineer. 
 
WATER RIGHT LEGISLATION 69 
 
 Oregon 
 
 As stated above, Oregon appointed a "water code commis- 
 sion" in 1903, but little was done at the 1905 session of the 
 legislature beyond creating the office of state engineer. In 
 1907 a second commission recommended the "Bien Code," but 
 it did not pass. In 1909, following the recommendation of a 
 commission which had its disposal the able assistance of 
 Clarence T. Johnston, then State Engineer of Wyoming, a 
 code was adopted which varies but little from that of Wyo- 
 ming. 
 
 The state is divided into two water divisions with a divis- 
 ion superintendent in charge. The two superintendents and 
 the state engineer form the board of control (now called "state 
 water board"). Contrary to the uniform practice elsewhere 
 all three officers are elected instead of appointed. 
 
 The only striking departure from the Wyoming system 
 is the procedure for denning rights. The sections in regard 
 thereto are almost word for word the Wyoming sections up 
 to and including the determination of rights by the state water 
 board. Instead of considering such final unless appealed from, 
 the Oregon statute provides that a certified copy of the deter- 
 mination and the original evidence shall be filed with the 
 clerk of the circuit court which fixes a time for hearing the 
 determination. The court after the necessary hearings either 
 affirms or modifies the determination of the board. 
 
 A minor difference in the method of adjudication is that 
 the determination in Oregon is initiated not by the board of 
 its own motion, but by petition of one or more water users 
 upon the stream. As the board always has before it more peti- 
 tions for determination than it can act upon, it is clear that the 
 change in procedure is of no practical importance. 
 
 The new legislation adopted in the western states prior to 
 the 1909 statute in Oregon, is silent in regard to riparian 
 rights, although such rights are recognized in Nebraska, Okla- 
 homa and the Dakotas. The Oregon statute, however, pro- 
 vides that the use of riparian proprietors shall be limited to 
 the extent of the beneficial use prior to the passage of the act 
 or, where works were under construction at the date of pas- 
 sage, to the amount of water applied to beneficial use in a 
 reasonable time as fixed by the state water board. In Oregon 
 it is well settled that a riparian owner may elect to rely upon 
 his riparian rights or upon his rights by appropriation, but he 
 cannot do both as in California. (In re Sucker Creek, 163 
 Pac. 430.) Probably on account of this necessity of choosing 
 between the two and also on account of the time limitation of 
 
70 ELEMENTS OF WESTERN WATER LAW 
 
 the riparian doctrine fixed in Hough v. Porter (see Chapter 
 II), very few claimants appearing before the water board 
 claim as riparian owners. Prior to March 1, 1917, the water 
 board had determined the rights of 3664 claimants, a very 
 limited number of whom had set up riparian rights and, with 
 one exception, all proved rights by appropriation. 
 
 California 
 
 Acquirement of Rights. The office of state engineer was 
 established by the California legislature in 1878 for "the 
 acquirement of data upon which the state might formulate the 
 policy and frame legislation respecting irrigation matters." 
 Although the office continued for 10 years and assembled 
 much valuable data, it was unsuccessful in securing any new 
 legislation. In 1900 the California Water and Forest Asso- 
 ciation, in co-operation with Irrigation Investigations of the 
 United States Department of Agriculture, made a study of 
 water right conditions on eight typical California streams, and 
 in 1902 framed a draft of a "water code" for submission to the 
 legislature of 1903. The antagonism to the proposed bill was 
 so bitter that it was not introduced. 
 
 In 1911 an act governing the appropriation of water for 
 power purposes only was passed. Applications to appropriate 
 were made to a board of three, called the State Board of Con- 
 trol. At a special session of the legislature in 1911-1912, the 
 name of the board was changed to State Water Commission. 
 Under the original 1911 act licenses for power purposes were 
 limited to twenty-five years. Under the amended 1911-1912 
 act, the license period was extended to forty years. 
 
 The Conservation Commission of California was created 
 in 1911. One of its duties was "to prepare and recommend 
 to the legislature laws, statutes, and constitutional amend- 
 ments revising, systematizing, and reforming the laws of this 
 state upon forestry, water, the use of water, w r ater power, 
 electricity, electrical and other power. . . ." As a result 
 of the work of the Conservation Commission, the State Water 
 Commission Act was passed by the 1913 legislature, but was 
 withheld by referendum and did not go into effect until De- 
 cember 19, 1914. 
 
 The act is similar to the new legislation followed in 
 Wyoming in regard to the initiation of rights, except that a 
 commission of three members passes upon such applications 
 instead of the state engineer. In its declaration of waters 
 which are public waters and subject to appropriation, the act 
 excepts such waters as "have been or are being applied to 
 useful and beneficial purpose upon, or in so far as such waters 
 
WATER RIGHT LEGISLATION 71 
 
 are or may be reasonably needed for useful and beneficial pur- 
 poses upon lands riparian thereto." Regarding use upon ripa- 
 rian lands, the act further provides: 
 
 If any portion of the waters of any stream shall not be put to a 
 useful or beneficial purpose to or upon lands riparian to such stream 
 for any continuous period of ten consecutive years after the passage 
 of this act, such nonapplication shall be deemed to be conclusive pre- 
 sumption that the use of such portions of the waters of such stream 
 is not needed upon said riparian lands for any useful or beneficial pur- 
 pose, and such portion of the waters of any stream so nonapplied, 
 unless otherwise appropriated for a useful and beneficial purpose is 
 hereby declared to be in the use of the state and subject to appropria- 
 tion in accordance with the provisions of this act. 
 
 Section 20 of the act contains a provision not found in the 
 other western water codes. It is that at any time after the 
 expiration of 20 years after the granting of a license "the 
 state or any city, city and county, municipal water district, 
 irrigation district, lighting district or, political subdivison of 
 the state" shall have the right to purchase the works and 
 property used under said license, and the licensee or permittee 
 shall accept such permit or license "under the conditions 
 precedent that no value whatever in excess of the actual 
 amount paid to the state therefor shall at any time be assigned 
 to or claimed for any permit or license granted or issued under 
 the provisions of this act," in case of public service regulation 
 or in case of sale to the public units enumerated above. Sec- 
 tion 20 also provides that the application for a permit by 
 municipalities for the use of water "for domestic purposes 
 shall be considered first in right, irrespective of whether they 
 are first in time." 
 
 Section 23 of the 1913 act was also amended at the 1917 
 session. Before amendment section 23 provided for an appli- 
 cation fee of $2.50 per theoretical horsepower up to 100 horse- 
 power, of $500 from 100 to 10,000 horsepower, and of $1000 
 above 10,000 horsepower, and of $10 for purposes other than 
 power. It also provided for an annual charge, after the issue 
 of license, of 25 cents for each theoretical horsepower, and of 
 ten cents per miner's inch for other purposes. The section as 
 amended provides for a filing fee of $5 and, upon the issue of 
 a permit, the additional fee of 10 cents per theoretical horse- 
 power up to 100 horsepower, of 5 cents per horsepower from 
 100 horsepower to 1000 horsepower, and of one cent per horse- 
 power above 1000 horsepower; also, if for agricultural pur- 
 poses, of 5 cents per acre up to 100 acres, of 3 cents per acre 
 from 100 to 1000 acres, and of two cents per acre above 1000 
 acres. The annual charge has been eliminated. The applica- 
 
72 ELEMENTS OF WESTERN WATER LAW 
 
 tion and permit fees are similar to those in force in Nevada, 
 Oregon and Washington (1917) the permit fees for power 
 purposes being the same as those in Washington, and the 
 permit fees for agricultural purposes being the same as those 
 in Nevada. 
 
 The California water commission made the above recom- 
 mendation regarding change in filing fees as applications for 
 power purposes were discriminated against under the existing 
 system. Applicants for purposes other than power had to pay 
 a filing fee of $10 only regardless of the size of the proposed 
 project. Irrigation, municipal and similar applications mean 
 a proposed complete depletion (excepting "return waters") of 
 available water supply by the amount to be diverted. Power 
 applications on the contrary contemplate a return of the 
 diverted water for further use below. Section 23, as amended, 
 places the filing fees for irrigation and power purposes on 
 somewhat the same basis. 
 
 The annual charge has been eliminated under licenses for 
 the diversion of water for any purpose as no sound argument 
 could be found for its retention. It was probably originally 
 based on the idea that the state owned the water and, there- 
 fore, should secure a return on its use. In approving a permit 
 or issuing a license, however, the state gives no guarantee of 
 the water right, and the holder thereof must protect himself 
 if litigation be initiated by riparian owners or prior appropria- 
 tors. The Supreme Court of California in Palmer v. Railroad 
 Commission (167 Cal. 163, 167) expressed itself as follows on 
 this point: 
 
 The theory that the water of a non.navigable stream in this state 
 is in some sense "public water" has been advanced before. It has been 
 claimed that a diversion of water under the provisions of the Civil 
 Code (sees. 1410 to 1422) constitutes a grant of the water by the state 
 to the appropriator. The idea may have arisen from the statement 
 sometimes made in the decisions that the riparian owner has no right 
 in the corpus of the water (Eddy v. Simpson, 3 Cal. 252, 58 Am. Dec. 
 408), and that running water cannot be made the subject of private 
 ownership, that the right to use the water of a stream "carries no spe- 
 cific property in the water itself." (Kidd v. Laird, 15 Cal. 179 [76 
 Am. Dec. 472]). This is far from saying that the property in the water 
 is vested in the public, either for general use, or as property of the 
 state. The doctrine that it is public water, or that it belongs to the 
 state because it is not capable of private ownership, has no support in 
 the statutes of the state or in any decision of this court. 
 
 In a petition for rehearing the attention of the Court was 
 directed to the 1911 amendment of Section 1410 of the civil 
 code, adding the words : "All water or the use of water within 
 
WATER RIGHT LEGISLATION 73 
 
 the state of California is the property of the people of the 
 state of California." The Court's interpretation follows : 
 
 The amendment may possibly be effective as a dedication to 
 general public use of any riparian rights which the state, at the time 
 it was enacted, may still have retained by virtue of its ownership of 
 lands bordering on a stream, rights in the stream which it would in 
 such cases have in common with owners of other abutting land. It 
 could not affect the riparian rights of the other owners, nor the rights 
 of any person or corporation claiming under them, nor rights previ- 
 ously acquired from riparian owners by prescription, nor rights ac- 
 quired from the state prior to that time by appropriation under the 
 code, in reliance upon the implied offer of the state to allow its riparian 
 rights to be acquired in that manner, as indicated in the opinion. 
 
 No western state, other than California and Oregon, has 
 attempted to levy an annual charge for the appropriation of 
 water. The Oregon statute (1911) applies to all water power 
 plants and not only to new ones as first provided in 1909. 
 
 Adjudication of Rights. The procedure for the adjudica- 
 tion of rights provided in the 1913 act was unsatisfactory and 
 was amended in 1917 to conform to the new Oregon and 
 Nevada procedure except that the adjudication is specifically 
 restricted to rights by appropriation. 
 
 Distribution of Water. The only provision in the act 
 regarding the distribution of water is Section 37, which is as 
 follows : 
 
 The power to supervise the distribution of water in accordance 
 with the priorities established under this act, when such supervision 
 does not contravene the authority vested in the judiciary of the state, 
 is hereby vested in the state water commission. 
 
 In 1917 an act was introduced amending Section 37 so 
 that the system of distribution used in Colorado and other 
 western states might be followed. The act provided that the 
 water masters should be paid by the state, as this recommen- 
 dation had been made by practically every state engineer in 
 response to inquiries from the California water commission. 
 The matter of distribution was so little understood by the 
 California legislators, however, that the act was not pressed. 
 Many of the opponents of the measure thought it was an 
 attempt to distribute water without first securing an adjudica- 
 tion of the rights. This is probably the only instance where 
 there has been objection to that part of suggested water codes 
 governing distribution of water. 
 
74 ELEMENTS OF WESTERN WATER LAW 
 
 Texas 
 
 In 1913, Texas passed legislation creating a board of 
 water engineers consisting of three members, one from each of 
 the three water divisions into which the act divided the state. 
 Under this act the board was authorized to pass upon applica- 
 tions to appropriate in the same general way as is a state engi- 
 neer in other western states. In 1917, the 1913 act was re- 
 enacted and supplemented to include the Wyoming adminis- 
 trative method for determining rights, and the usual system of 
 water masters to distribute water in accordance with decreed 
 rights. 
 
 As stated in Chapter II, the riparian doctrine is recog- 
 nized in Texas. Section 3 of the 1917 act authorizing the 
 diversion of water contains the proviso: "that such ordinary 
 flow and underflow shall not be diverted to the prejudice of 
 the rights of any riparian owner without his consent, except 
 after condemnation thereof in the manner hereinafter pro- 
 vided." Section 83 of the act provides that a permittee who 
 applies the water appropriated to beneficial purposes for 
 three years "shall be deemed to have acquired such appropria- 
 tion by limitation, as against any and all other claimants of 
 water from the same stream * * *, and as against all riparian 
 owners." The benefits of the section also extend to those who 
 appropriated water according to law prior to the passage of 
 the 1917 act. 
 
 Section 129, providing for the forfeiture of water rights 
 of those who fail for a three-year period to submit evidence 
 of claim, contains the following : 
 
 Provided that nothing herein contained shall be held to in any 
 way destroy, infringe or impair the right of any riparian owner to the 
 use of the water from such stream for domestic purposes and use or 
 for the use of stock, and it shall not be necessary for the claimant of 
 this right to appear or assert his right to such use, but the same shall 
 be respected. 
 
 Section 136 is as follows : 
 
 Nothing in this act shall be construed as a recognition of any 
 riparian right in the owner of any lands the title to which shall have 
 passed out of the state of Texas subsequent to the first day of July, 
 A. D. 1895. 
 
 The date, July 1, 1895, is the effective date of a statute 
 declaring the unappropriated waters, within those portions of 
 Texas in which "irrigation is beneficial for agricultural pur- 
 poses," to be the property of the public (see references to 
 Crawford v. Hathaway and Hough v. Porter in Chapter II). 
 
WATER RIGHT LEGISLATION 75 
 
 Washington 
 
 As previously stated, the "Bien Code" was prepared as a 
 result of a joint conference between commissions appointed in 
 Oregon and Washington in 1903-1904 to draft a water code. 
 The act introduced in 1905 as a result of the commission's 
 work failed to pass. Another commission was appointed to 
 draft a bill for introduction in 1913. The bill failed in 1913 and 
 again in 1915, but in amended form passed at the last session, 
 1917. 
 
 The new act provides a "state hydraulic engineer" with 
 authority regarding the initiation of rights and the distribution 
 of water similar to that of other western state engineers 
 especially Nevada and Utah, as water masters report directly 
 to the state hydraulic engineer. The method of adjudication 
 is also similar to that of Utah one point of difference being 
 that in Washington the act provides that the state hydraulic 
 engineer, "or his duly authorized deputy," shall be the referee 
 appointed by the court. 
 
 The act recommended by the commission placed limita- 
 tions upon the exercise of riparian rights as in the Oregon 
 code. The limitations, however, were stricken out by the leg- 
 islature, so that the only mention of riparian rights in the act 
 as adopted is the following from Section 1 : 
 
 * * Nothing contained in this act shall be construed to lessen, enlarge 
 or modify the existing rights of any riparian owner, or any existing 
 right acquired by appropriation, or otherwise. They shall, however, 
 be subject to condemnation as provided in section 4 hereof, and the 
 amount and priority thereof may be determined by the procedure set 
 out in sections 14 to 26 inclusive hereof. 
 
 Kansas 
 
 In 1917, the Kansas Water Commission was created to 
 investigate "the problems of flood prevention, drainage, 
 domestic water supply, water power, navigation and irrigation 
 in the state of Kansas." The commission is composed of three 
 members the governor, as ex-officio chairman, and two civil 
 engineers appointed by him to hold office for four years. The 
 appointed members serve without compensation, except actual 
 traveling expenses. 
 
 Section 6 of the act creating the commission provides that 
 surface or underground waters of the state may be appropri- 
 ated "upon application to the commission, and in accordance 
 with rules and regulations it may prescribe." Section 7 pro- 
 vides that "the commission shall study the laws of the state 
 relating to floods, drainage and irrigation with a view of 
 
76 ELEMENTS OF WESTERN WATER LAW 
 
 making such provisions as may be necessary to accomplish the 
 ends prescribed in this act." 
 
 Kansas has therefore passed from the "posting notice" 
 stage to that of making applications to a water commission. 
 As the powers given to the commission are very broad regard- 
 ing new appropriations, it is probable that the commission's 
 recommendation for a well-rounded irrigation code will be 
 accepted by the next legislature. 
 
 Review of Legislation 
 
 Adjudication of Rights. In May, 1904, the state engi- 
 neers of the eight states then having the office formed the 
 Association of State Engineers. The first regular meeting 
 was held at Boise, Idaho, in September, 1904. As a result of 
 a close examination of the provisions of the various statutes, 
 it was then agreed that the only difference of importance was 
 in the method of determining rights, and the same view is 
 held today. 
 
 In Wyoming, Nebraska, Nevada (until 1915), and Texas, 
 rights are determined by a state engineer or engineering board, 
 subject to review by the courts on appeal. The method has 
 the advantage of freedom from embarrassing procedure as 
 the officials collect the necessary field data and proofs, and are 
 so familiar with the essentials that the irrelevant is summarily 
 eliminated. The rights are accordingly determined with com- 
 parative speed and at low cost. 
 
 In Colorado, Idaho, Utah, North Dakota, Oklahoma, 
 South Dakota, New Mexico and Washington, adjudications 
 are made by the courts after the assembling of physical data 
 by the state engineer^except in Colorado where- the state 
 engineer has no connection with the adjudication. The chief 
 argument of the proponents of this legislation is that no other 
 method is legally sound. It so happens, however, that the 
 board or administrative method has been upheld by the 
 supreme courts of Wyoming and Nebraska, and the court 
 method has been held unconstitutional in Idaho and South 
 Dakota the only cases in which it has been before the courts 
 (again excepting Colorado). 
 
 The constitutionality of the Wyoming statute providing 
 for the new system of defining rights was questioned in Farm 
 Investment Company v. Carpenter (61 Pac. 266) decided May 
 26, 1900 after the statute had been in operation ten years. 
 The Supreme Court in upholding the statute made the follow- 
 ing pertinent statement regarding the efficiency of the two 
 methods: 
 
WATER RIGHT LEGISLATION 77 
 
 As between an investigation in the courts and by the board, it 
 would seem that an administrative board, with experience and peculiar 
 knowledge along this particular line, can, in the first instance, solve 
 the questions involved, with due regard for private and public inter- 
 ests, conduct the requisite investigation, and make the ascertainment 
 of individual rights, with great facility, at less expense to interested 
 parties, and with a larger degree of satisfaction to all concerned. 
 
 In the same case it was contended that although the sys- 
 tem might be valid for denning rights which had accrued sub- 
 sequent to the adoption of the constitution, it was certainly 
 invalid for denning rights accruing prior thereto and the 
 Court answered : 
 
 It follows from what has already been said that in this regard 
 there exists no difference between claimants whose rights accrued 
 prior to, and those acquiring rights after, the adoption of the constitu- 
 tion and the statute in question. 
 
 In Crawford v. Hathaway (93 N. W. 781) the validity of 
 the Nebraska statute was attacked and the Supreme Court 
 said: 
 
 The Wyoming statute, from which ours is borrowed, has been 
 subjected to judicial construction and is upheld by the Supreme Court 
 of that state on the express ground that the powers authorized therein 
 are not judicial, but administrative. . . . With this authoritative 
 construction of the statute, and a decision of the very question raised 
 in the case at bar upon reasoning quite convincing and satisfactory, 
 it would seem that the question should be regarded as at rest. The 
 primary object of the board is for the purpose of supervising the appro- 
 priation, distribution and diversion of water. This is obviously an 
 administrative rather than a judicial function. 
 
 In Bear Lake v. Budge (75 Pac. 614) the Idaho Supreme 
 Court held invalid that part of the 1903 statute providing for 
 the initiation by a water commissioner of suits to determine 
 water rights, in the following words : 
 
 Said provision also violates the provision of our statutes which 
 requires suits to be brought in the name of the real party in interest. 
 The water commissioner, a public official, is not the real party in inter- 
 est in a suit to quiet title or to determine adverse interest in property 
 not claimed by or belonging to him or the state. 
 
 In St. Germain Irrigating Co. v. Hawthorne Ditch Co. 
 (143 N. W. 124), the Supreme Court of South Dakota consid- 
 ered that part of the "water code" dealing with the adjudica- 
 tion of water rights. The code provides that "when any such 
 suit has been filed the court shall direct the state engineer to 
 make or furnish a complete hydrographic survey of such 
 stream system" and that the costs of such surveys shall be 
 charged against the parties in proportion to the water right 
 allotted. The court held that such provisions are "void as 
 
78 ELEMENTS OF WESTERN WATER LAW 
 
 tending to deprive individuals of property rights and property, 
 by way of costs and expenses, without due process of law." 
 The section in question is practically the same as Sec. 4620 
 of the Code of Civil Procedure of Idaho, which has been up- 
 held on the grounds that the constitution does not prohibit 
 the legislature from providing for such surveys and their use 
 as evidence and the prorating of the costs thereof by the trial 
 court. (Boise, etc. Co. v. Stewart, 77 Pac. 25). 
 
 The new Oregon method (now followed in Oregon, 
 Nevada and California) is designed to meet the objections of 
 those who contend that only a regular judicial tribunal should 
 establish water rights. As stated above, the 1907 Oregon stat- 
 ute provides for an immediate affirmance or modification of 
 the determination of the board by the circuit court. The pro- 
 visions of the Oregon act regarding this method of determin- 
 ation have been upheld by the Oregon Supreme Court in 
 Pacific Livestock Company v. Cochran (144 Pac. 668) and 
 In Re Willow Creek (144 Pac. 505), and have likewise been 
 upheld by the U. S. Supreme Court in Pacific Livestock Co. v. 
 Lewis (36 Sup. Ct. Rep., 637). In the last case the Court 
 said, in commenting upon the relation between the proceed- 
 ings before the board and before the court : 
 
 A serious fault in this contention is that it does not recognize the 
 true relation of the proceeding before the board to that before the 
 court. They are not independent or unrelated, but parts of a single 
 statutory proceeding, the earlier stages of which are before the board 
 and the later stages before the court. In notifying claimants, taking 
 statements of claim, receiving evidence, and making an advisory 
 report, the board merely paves the way for an adjudication by the 
 court of all the rights involved. /A~s the supreme court of the state 
 has said, the board's duties are isuch like those of a referee. (And 
 see Washington ex rel. Oregon R. & Nav. Co. v. FalrdSil5f^24 U. S. 
 510, 526, 527, 56 L. ed. 863, 868, 869, 32 Sup. Ct. Rep. 535.) All the 
 evidence laid before it goes before the court, where it is to be accorded 
 its proper weight and value. That the state, consistently with due 
 process of law, may thus commit the preliminary proceedings to the 
 board and the final hearing and adjudication to the court, is not debat- 
 able. And so, the fact that the board acts administratively and that 
 its report is not conclusive does not prevent a claimant from receiv- 
 ing the full benefit of submitting his claim and supporting proof to the 
 board. That he is to do this at his own expense affords no ground for 
 objection; on the contrary, it is in accord with the practice in all 
 administrative and judicial proceedings. 
 
 In the recent case of Bergman v. Kearney (24 Fed. 884) 
 the validity of the 1915 Nevada act was attacked on the 
 ground, among others, that certain sections of the statute "are 
 invalid, because thereby they seek to confer upon a non- 
 
WATER RIGHT LEGISLATION 79 
 
 judicial officer judicial powers ; and by the terms of the statute 
 the district courts of the state are deprived of their original 
 jurisdiction * * *; and that it makes of the district courts 
 appellate courts * * *." In reaching his conclusions in the 
 case, Judge Farrington presents a careful analysis of constitu- 
 tional and statutory provisions regarding water in Wyoming, 
 Nebraska, Oregon and Nevada, and says: 
 
 Under our law, with even more reason than under that of Oregon, 
 Wyoming or Nebraska, may it be said that the proceeding for the 
 adjudication of water rights is integral; it is one; its preparatory and 
 initial stages are before the state engineer; the final steps are 
 in the district court. It is initiated by an order of the state engineer, 
 without waiting for controversies to arise. He seeks no legal or equit- 
 able relief, either for himself or for the state which he represents. 
 No recovery of the whole or any part of the rights to be investigated, 
 is demanded. He sets up no title to be established or quieted in him- 
 self or in the state; he alleges no rights which have been infringed or 
 violated. The purpose of the proceeding is to promote the public wel- 
 fare by regulating the use and preventing the waste of the waters of 
 the state. His findings and determination, though they are obtained 
 judicially, have none of the elements of finality and conclusiveness 
 which are the sine qua non of judicial power. As an ascertainment of 
 relative rights, it is not effective for the administrative purpose of 
 regulating and controlling distribution and diversion, until it is filed 
 in court. * * * Untiljt is so fil^d^Jt^a^no_more_^orce than the 
 findings of a referee. It is not a decree or judgment in the sense that 
 it terminates the litigation on the merits between parties; therefore, 
 there is nothing to appeal from. When it reaches the court, there is 
 no necessity for an appeal; there its principal function is to serve as 
 one of the pleadings. * * * 
 
 I am therefore of the opinion that the act of 1913, as amended in 
 1915, in so far as it authorizes the state engineer to take evidence and 
 determine water rights for administrative purposes, is not unconstitu- 
 tional. The power exercised in the ascertainment of water rights for 
 administrative purposes only, is not judicial power in the constitutional 
 sense ; nor in so far as the engineer is authorized to take evidence and 
 determine water rights for the final adjudication of the titles of various 
 claimants among themselves, is he vested with judicial power. What 
 he does is merely preliminary, the initial step in a proceeding which 
 culminates in a final decree by the district court; thus it is not the 
 engineer, but the court, which exercises the judicial power of the 
 state of Nevada. 
 
 As viewed from the practical standpoint, the argument is 
 entirely in favor of the administrative board method (includ- 
 ing the Oregon method). ^Excepting Colorado, where the 
 system is clearly defective in that it does not provide for 
 representation by the state, practically nothing has been done 
 in the states adopting statutes providing for the adjudication 
 
80 ELEMENTS OF WESTERN WATER LAW 
 
 by a regular court, after the preparation of physical data by 
 the state engineer. Very decided progress has been made 
 in Nebraska, Nevada, Oregon and Wyoming, where the rights 
 are determined by the board of control or the state engineer, 
 at least in the first instance. Realizing the excellent work 
 accomplished in the states last named, Idaho and Utah in 1915 
 appointed commissions to recommend new legislation. On 
 account of lack of funds no commission was appointed by the 
 governor of Utah during the period 1915-1916. In 1917, how- 
 ever, an act providing for such a commission and appropriating 
 $18,000 for the expenses thereof was passed, and the commis- 
 sion has been appointed and is now at work. 
 
 The Idaho commission in its report (1915) says: 
 The Commission therefore proposes a plan that, while it is in a 
 measure revolutionary so far as the state of Idaho is concerned, vari- 
 ous features of it have been in operation in Wyoming and Oregon and, 
 though severely criticised, apparently are successful there. The plan 
 as proposed by the Commission would effect a change whereby the 
 administration and adjudication of the waters of the state would be 
 placed in the hands of a board composed of the state engineer and two 
 other members appointed by the governor from different irrigated sec- 
 tions of the state. 
 
 Acquirement of Rights. It has been stated that the 
 following states have central offices (state engineer, water 
 commission or water board) to which applications on fur- 
 nished printed forms must be made by intending appropria- 
 tors: Wyoming, Nebraska, Idaho, Utah, Nevada, North 
 Dakota, Oklahoma, South Dakota, New Mexico, Oregon, 
 California, Texas, Kansas and Washington. The central 
 office of each of the above states will send an application blank 
 and instructions on request, and every intending appropriator 
 should follow the directions carefully and thus avoid later 
 trouble. To the above list Colorado should be added, as the 
 state engineer issues instructions regarding maps and state- 
 ments to be filed within sixty days after the commencement 
 of surveys or actual construction of any ditch or reservoir. 
 
 There remain but two states, Arizona and Montana, in 
 which the old method of posting notices is still valid. In Ari- 
 zona, a copy of the notice of appropriation must be recorded 
 in the office of the county recorder of the counties in which 
 the ditch or reservoir lies, and also in the office of the secretary 
 of state. No time limit is specified for the recording of notices, 
 and the work must begin within a reasonable time and be 
 prosecuted with reasonable diligence to completion. In Mon- 
 tana, a verified copy of the notice of appropriation must be 
 filed in the office of the county clerk of the county where 
 
WATER RIGHT LEGISLATION 81 
 
 posted within twenty days, and work must begin within forty 
 days. In case of appropriation from adjudicated streams, the 
 new appropriator, within forty days after completion, makes 
 application to the clerk of the district court, who orders an 
 examination by a competent engineer. A hearing, after pub- 
 lished notice, is held, and the court limits the appropriation in 
 accordance with its findings. This procedure was adopted in 
 1907. Montana has had a state engineer since 1903, but his 
 duties are confined mainly to operations under the Carey act 
 and to state highway work. It is gratifying to note that in 
 both Arizona and Montana comprehensive "water codes" were 
 introduced in 1917. It is certain that, on account of the cam- 
 paign of education now being waged in the two states, the 
 chances of passage at the 1919 session are very good. 
 
 Following the early California cases and prior to the 
 introduction of the new legislation, it was the accepted rule 
 that a valid appropriation of water could be made without 
 fo 1 lowing the statutes providing for the posting of notices of 
 appropriation. Except in Idaho, the new legislation aims to 
 make the statutory method exclusive the diversion of water 
 except by virtue of an approved application being generally 
 declared unlawful. The question has been raised before the 
 Supreme Court of Idaho only. In a number of cases, of which 
 the last is Crane Falls Power & Irrigation Co. v. Snake River 
 Irrigation Co. (133 Pac. 655), the Supreme Court of Idaho has 
 held that the old rule still applies, and that an appropriation 
 may be made by actual diversion without applying to the state 
 engineer for a permit. By following the statute the benefits 
 of the doctrine of relation are secured, and the priority of the 
 right is fixed as of the date of the filing of the application. 
 When the statute is not followed, the priority dates from the 
 application of the water to beneficial use the statutory 
 method being the exclusive method by which the right can 
 relate back to the filing of the application. As a practical 
 matter, therefore, no project of any size will be undertaken 
 except under permit from the state engineer. Not only would 
 it be impossible to finance a project with no evidence of water 
 right, but no rights of way over government land can be 
 secured without such. As the constitution of Idaho provides 
 that the right to appropriate shall never be denied, the Idaho 
 cases cannot be considered a precedent in the other states 
 having the new legislation. 
 
 Except as indicated under the discussion of the Utah laws, j 
 the new legislation authorizes the central offices to reject anj 
 application which is deemed detrimental to the public welfare. I 
 
82 ELEMENTS OF WESTERN WATER LAW 
 
 As previously stated, this provision was held unconstitutional 
 by a district court in Utah, but it has been upheld by the 
 Supreme Courts of New Mexico and Oregon (Young v. Hin- 
 derlider New Mexico 110 Pac. 1050; Cookinham v. Lewis 
 Oregon 114 Pac. 90, 115 Pac. 343). 
 
 The new legislation generally provides that the central 
 office may cancel a permit under which work is not being 
 prosecuted in accordance with the conditions thereof. A very 
 comprehensive statute covering this point was adopted in 
 Idaho in 1909. Its validity was questioned in Speer v. Steph- 
 enson (102 Pac. 366) on the ground that it confers judicial 
 power upon the state engineer, and that the procedure pre- 
 scribed is not due process of law. The Court held that "the 
 granting as well as the cancellation and voiding of permits are 
 acts of administration and clearly within the power which may 
 be given to the state engineer in supervising and administering 
 a law regulating the appropriation of the public waters." The 
 sufficiency of the procedure was also upheld. 
 
 The rule was early established that an appropriator may 
 change the place or means of diversion, the place of use and 
 purpose of use, without loss of priority, provided no other 
 claimant is injured thereby. As the matter of injury is one 
 of fact to be determined in a given case, the new legislation 
 in a number of the states provides a procedure to be followed 
 after application to the state engineer for permission to make 
 such change. In Pueblo of Isleta v. Tondee (137 Pac. 86) the 
 Supreme Court of New Mexico held, with reference to the 
 sections of the 1907 New Mexico statute providing for such 
 changes, that the provision applies only to appropriations 
 initiated under the 1907 act, and not to those existing at the 
 date of its passage. Mr. Chief Justice Roberts dissented, hold- 
 ing that all appropriations are subject to the sections con- 
 strued, and his opinion seems to be supported by both the 
 administrative practice and by the courts in other states 
 having such legislation. 
 
 Water rights initiated by application to the state engineer 
 are based upon beneficial use and perpetual unless abandoned 
 or forfeited through non-use as was the case prior to the 
 adoption of the new legislation. Oregon (1909) and California 
 (1911) formerly restricted new appropriations for power pur- 
 poses to a term of forty years, but such statutes are no longer 
 effective, having been repealed in Oregon in 1915 and in Cali- 
 fornia in 1913. 
 
 Distribution of Water. Every western state, with the 
 exception of Arizona, Kansas and Montana, has now adopted 
 
WATER RIGHTS ON INTERSTATE STREAMS 83 
 
 a system of distribution of water in accordance with deter- 
 mined or decreed rights, following the method first introduced 
 by Colorado the California statute on this point, however, 
 must be supplemented. The title, incidental duties, method of 
 appointment and payment of the "police officers" involved in 
 the distribution of water differ in the various states, but the 
 underlying principle is the same. The general method of 
 having the "police officers" paid by the counties has been 
 severely criticized by the central offices, but, as previously 
 stated, the only state which has thus far authorized the pay- 
 ment of such "police officers" from state funds is Nebraska. 
 So necessary, and in fact indispensable, is a public systSflftf 
 distribution after rights have been defined or decreed, that 
 many judges have taken it upon themselves to insist upon the 
 appointment of commissioners to divide the waters in accord- 
 ance with decrees. The Supreme Court of the United States, 
 in passing upon an Arizona case in which the lower court had 
 ruled that the parties to a suit should share the payment of 
 the salary of the commissioner appointed by the court to dis- 
 tribute the water, approved such action "in view of the absence 
 of legislative action on the subject and of the necessity which 
 manifestly existed for supervising the use of the stream. * * " 
 (Montezuma Canal Co. v. Smithville Canal Co., 218 U. S. 371.) 
 Conclusion. It should be emphasized in closing that the 
 "new legislation" which has been discussed is dictated solely 
 by good business sense. Instead of endless litigation regard- 
 ing existing rights and no system worth considering regulating 
 new appropriations, the new plan provides a full determin- 
 ation of existing rights in a single proceeding, the proper 
 distribution of water by state officials according to such deter- 
 mination, and a complete control of the acquirement of new 
 rights by a central office. It rests upon the same legal basis 
 as the old, and in no way attempts to interfere with or limit 
 vested rights. It is applicable to any condition of topography 
 or climate, as is illustrated by its acceptance by Nebraska in 
 the east and Oregon in the west, by North Dakota in the north 
 and Texas in the south. It leads the way from chaos and strife 
 to order, harmony, and efficiency. 
 
CHAPTER VII 
 WATER RIGHTS ON INTERSTATE STREAMS 
 
 The principles of either the doctrine of riparian rights 
 or of that of prior appropriation have been thus far consid,- 
 ered as developed within the various western states and no 
 mention has been made of the right to use the waters of inter- 
 state streams. A little consideration only is necessary to re- 
 call to one the great number of rivers which either flow from 
 state to state, or form the boundary line between them. The 
 Snake from its headwaters in the mountain lakes of Wyom- 
 ing meanders across Idaho, crosses and re-crosses the Idaho- 
 Oregon boundary line, flows through southeastern Washing- 
 ton and finally joins the Columbia, which is the boundary 
 between Washington and Oregon. The tributaries of the 
 Missouri rise in Wyoming and the main stream flows through 
 or touches Montana, North Dakota, South Dakota, Nebraska 
 and Kansas. The principal tributaries of the Colorado, the 
 Green and the Grand, rise in Wyoming, and after their con- 
 fluence in Utah the main river flows into Arizona and becomes 
 the boundary between Nevada and Arizona, and also between 
 California and Arizona. The Rio Grande rises in Colorado 
 and flows through New Mexico into Texas. 
 
 The waters of all of the great rivers mentioned are used 
 to some extent in irrigation, but with the exception of the 
 Rio Grande, and possibly the lower Colorado, there is no 
 likelihood of trouble in the near future between states regard- 
 ing their use. The interstate streams which have been in con- 
 troversy are the small mountain tributaries whose small flow 
 was early appropriated. On such streams it is very common 
 to find ditches heading in the upper state and irrigating lands 
 in both the upper and lower states. Willey v. Decker (73 Pac. 
 210) dealt with Young's Creek flowing from Montana into 
 Wyoming and back again into Montana, and the Supreme 
 Court of Wyoming therein held (as reported in a head note) : 
 
 84 
 
WATER RIGHTS ON INTERSTATE STREAMS 85 
 
 In the absence of statutory provisions, owners of land in Montana 
 may acquire a legal right by prior appropriation to the use of the waters 
 of a stream having its source in that state, and flowing thence . . . 
 in Wyoming, by joining with owners of land in Wyoming in the con- 
 struction of a ditch, and thereby diverting the waters of the stream 
 at a point within Wyoming for the irrigation of lands in Montana and 
 Wyoming. 
 
 Sage Creek is another small stream rising in Montana and 
 flowing into Wyoming. In Howell v. Johnson (89 Fed. 556) 
 the defendants contended that the plaintiff, having a water 
 right under the laws of Wyoming, could not have a federal 
 court enforce the same, and also that the rights to water 
 were under the control of the legislature of Montana. The 
 court, however, applied the doctrine of appropriation regard- 
 less of state lines and held for the plaintiff diverting in the 
 lower state, Wyoming. The lower prior diversion was like- 
 wise protected in Hoge v. Eaton (135 Fed. 411) wherein ap- 
 propriators from Sand Creek in Wyoming complained of a 
 later diversion of the creek in Colorado. The Court therein 
 said: 
 
 The right to divert running waters for irrigating lands in an arid 
 country is not controlled or affected by political divisions. It is the 
 same in all states through which the streams so diverted may pass. 
 
 The waters of Sage Creek were again in controversy in 
 Bean v. Morris which was decided by the United States Su- 
 preme Court May 29, 1911 (221 U. S. 485). The Supreme 
 Court therein said: 
 
 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 legis- 
 lation to the contrary, that the states were willing to ignore boun- 
 daries, and allowed the same rights to be acquired from outside the 
 state that could be acquired from within. . . . 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 consid- 
 eration. 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, . . . 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 the appropriation before either 
 state was admitted to the Union. The only reasonable presumption 
 is that the states, upon their incorporation, continued the system that 
 
86 ELEMENTS OF WESTERN WATER LAW 
 
 had prevailed theretofore, and made no changes other than those 
 necessarily implied or expressed. 
 
 The cases thus far referred to did not raise the doctrine 
 of riparian rights, although it has not been definitely abro- 
 gated in Montana. The conflict of doctrines was before the 
 United States Circuit Court in Anderson v. Bassman (140 
 Fed. 10), wherein the plaintiffs were farmers using the waters 
 of the West Carson River in Nevada and the defendants were 
 irrigators from the same stream in California. In the decision 
 Judge Morrow points out that the doctrine of appropriation 
 is alone recognized in Nevada, while California uses the dual 
 system of appropriation and riparian rights. On account of 
 the conflict of accepted systems no attempt was made to ascer- 
 tain individual rights of priority, but the case was decided by 
 allowing the farmers in California the use of the entire stream 
 for five days out of ten and a like use to those in Nevada. 
 
 Kansas v. Colorado 
 
 By far the most important case dealing with the use of 
 the waters of an interstate stream is Kansas v. Colorado (206 
 U. S. 91) decided by the United States Supreme Court May 
 13, 1907. It was initiated on May 20, 1901, by Kansas charg- 
 ing Colorado with the wrongful diversion of the waters of the 
 Arkansas River. On May 21, 1904, the United States inter- 
 vened in behalf of its operations under the Reclamation Act 
 of June 17, 1902. 
 
 Kansas claimed that the waters of the Arkansas should 
 be allowed to flow as they were accustomed to flow, and that 
 by the diversions in Colorado not only were the property own- 
 ers along the river deprived of its surface flow, but all land 
 owners within the drainage area were deprived of the bene- 
 ficial influence of the subterranean flow. 
 
 Colorado contended that under the provisions of its con- 
 stitution it is the owner of all waters within its borders. It 
 further contended that the Arkansas River is substantially 
 two rivers the Colorado Arkansas rising in the Rocky Moun- 
 tains and sinking, in times of low water, in the sands of 
 Western Kansas, and the Kansas Arkansas which is formed 
 by springs and surface drainage in Western Kansas east of 
 the sink of the Colorado Arkansas. 
 
 The United States in its petition in intervention set forth 
 the vast acreage of public lands to be reclaimed under the pro- 
 visions of the Reclamation Act, the reliance of the arid west 
 upon the doctrine of prior appropriation, the inapplicability 
 of the riparian doctrine where irrigation is necessary, the con- 
 tention of Kansas that it is entitled to have the waters of the 
 
WATER RIGHTS ON INTERSTATE STREAMS 87 
 
 Arkansas flow uninterrupted and unimpeded into Kansas, the 
 contention of Colorado that it is the owner of all waters with- 
 in the State, and closed with the following: 
 
 That neither the contention of the state of Colorado nor the 
 contention of the state of Kansas is correct; nor does either contention 
 accord with the doctrine prevailing in the arid region in respect to the 
 waters of natural streams and of flood and other waters. That either 
 contention, if sustained, would defeat the object, intent, and purpose 
 of the reclamation act, prevent the settlement and sale of the arid 
 lands belonging to the United States, and especially those within the 
 watershed of the Arkansas River west of the ninety-ninth degree west 
 longitude, and would otherwise work great damage to the interests of 
 the United States. 
 
 Mr. Justice Brewer, who wrote the opinion, after show- 
 ing that the case is one over which the Supreme Court has 
 jurisdiction, said: 
 
 Turning now to the controversy as here presented, it is whether 
 Kansas has a right to the continuous flow of the waters of the Arkansas 
 River, as that flow existed before any human interference therewith, 
 or Colorado the right to appropriate the waters of that stream so as 
 to prevent that continuous flow, or that the amount of the flow is 
 subject to the superior authority and supervisory control of the United 
 States. ... Is the question one solely between the states or is 
 the matter subject to national legislative regulation, and, if the latter, 
 to what extent has that regulation been carried? . . . The primary 
 question is, of course, of national control. 
 
 The power of congress to preserve the navigability of 
 streams is first examined with the conclusion : 
 
 It follows from this that if in the present case the national gov- 
 ernment was asserting, as against either Kansas or Colorado, that the 
 appropriation for the purposes of irrigation of the waters of the Arkan- 
 sas was affecting the navigability of the stream, it would become our 
 duty to determine the truth of the charge. But the government makes 
 no such contention. On the contrary, it distinctly asserts that the 
 Arkansas River is not now and never was practically navigable beyond 
 Fort Gibson in the Indian Territory, and nowhere claims that any 
 appropriation of the waters by Kansas or Colorado affects its nav- 
 igability. 
 
 The Court then proceeds to examine "the question 
 whether the reclamation of arid lands is one of the powers 
 granted to the general government", pays particular atten- 
 tion to that part of section three of article four of the consti- 
 tution reading: "The congress shall have power to dispose 
 of and make all needful rules and regulations respecting the 
 territory or other property belonging to the United States 
 * ... .", and concludes that the section grants to con- 
 gress no legislative control over the states, but gives it author- 
 
88 ELEMENTS OF WESTERN WATER LAW 
 
 ity over federal property within their limits. It is stated 
 that the constitution is silent regarding the reclamation of 
 arid lands as no such problem existed at the time of its adop- 
 tion, that with the extension of national territory large areas 
 of arid lands have been included, and that "it may well be 
 that no power is adequate for their reclamation other than that 
 of the national government. But if no such power has been 
 granted, none can be exercised." 
 
 It is the last sentence quoted which has led many to 
 believe that the Supreme Court in this case declared the Rec- 
 lamation Act unconstitutional. The validity of that Act, 
 however, was not in issue, but the question of national, con- 
 trol that is, the superior right of congress to legislate re- 
 garding the reclamation of arid lands was. This should be 
 clear from the following quotation which is from the para- 
 graph immediately following the sentence referred to : 
 
 It does not follow from this that the national government is 
 entirely powerless in respect to this matter. These arid lands are 
 largely within the territories, and over them by virtue of the second 
 paragraph of section three of article four heretofore quoted, or by 
 virtue of the power vested in the national government to acquire 
 territory by treaties, congress has full power of legislation, subject 
 to no restrictions other than those expressly named in the constitution, 
 and, therefore, it may legislate in respect to all arid lands within their 
 limits. As to those lands within the limits of the states, at least of 
 the western states, the national government is the most considerable 
 owner and has power to dispose of and make all needful rules and 
 regulations respecting its property. We do not mean that its legisla- 
 tion can override state laws in respect to the general subject of recla- 
 mation. While arid lands are to be found, mainly if not only in the 
 western and newer states, yet the powers of the national government 
 within the limits of those states are the same (no greater and no less) 
 than those within the limits of the original thirteen, and it would be 
 strange if, in the absence of a definite grant of power, the national 
 government could enter the territory of the states along the Atlantic 
 and legislate in respect to improving by irrigation or otherwise the 
 lands within their borders. Nor do we understand that hitherto 
 congress has acted in disregard to this limitation. 
 
 After quoting from Gutierres v. Albuquerque Land Com- 
 pany (188 U. S. 545) the Court continues: 
 
 But it is useless to pursue the inquiry further in this direction. 
 It is enough for the purposes of this case that each state has full 
 jurisdiction over the lands within its borders, including the beds of 
 streams and other waters. ... It may determine for itself whether 
 the common law rule in respect to riparian rights or that doctrine 
 which obtains in the arid regions of the west of the appropriation of 
 waters for the purposes of irrigation shall control. Congress cannot 
 enforce either rule upon any state. 
 
WATER RIGHTS ON INTERSTATE STREAMS 89 
 
 It is certain from the above that the state and not the 
 nation is superior regarding legislation concerning the use of 
 public waters not navigable. As stated, the Supreme Court 
 believed it to be the "primary question" involved in the case 
 and, after such careful and direct consideration, the decision 
 must be accepted as final. 
 
 Coming to the direct issue between the two states, it is 
 held that the dispute must be so adjusted "upon the basis of 
 equality of rights as to secure as far as possible to Colorado 
 the benefits of irrigation without depriving Kansas of the 
 like beneficial effects of a flowing stream". Tables are set 
 forth in the opinion showing the increase in population, acre- 
 age irrigated, and value of farm products in the counties of 
 eastern Colorado traversed by the Arkansas River. The 
 court comments on the marked development thus evidenced 
 and says that, as shown by the testimony, it is undoubtedly 
 due to irrigation. A like examination is made of the census 
 statistics for the counties of western Kansas with the con- 
 clusion that the use of the water in Colorado has not been of 
 serious detriment to such counties. 
 
 The substance of the decision is well presented in the 
 following paragraphs : 
 
 Summing up our conclusions, we are of the opinion that the 
 contention of Colorado of two streams cannot be sustained; that the 
 appropriation of the waters of the Arkansas by Colorado, for purposes 
 of irrigation, has diminished the flow of water into the state of Kan- 
 sas; that the result of that appropriation has been the reclamation 
 of large areas in Colorado, transforming thousands of acres into fertile 
 fields and rendering possible their occupation and cultivation when 
 otherwise they would have continued barren and unoccupied; that 
 while the influence of such diminution has been of perceptible injury 
 to portions of the Arkansas Valley in Kansas, particularly those por- 
 tions closest to the Colorado line, yet to the great body of the valley 
 it has worked little, if any, detriment, and regarding the interests of 
 both states and the right of each to receive benefit through irrigation 
 and in any other manner from the waters of this stream, we are not 
 satisfied that Kansas has made out a case entitling it to a decree. At 
 the same time it is obvious that if the depletion of the waters of the 
 river by Colorado continues to increase there will come a time when 
 Kansas may justly say that there is no longer an equitable division of 
 benefits and may rightfully call for relief against the action of Colo- 
 rado, its corporations and citizens in appropriating the waters of the 
 Arkansas for irrigation purposes. 
 
 The decree which, therefore, will be entered will be one dismiss- 
 ing the petition of the intervenor, without prejudice to the rights of 
 the United States to take such action as it shall deem necessary to 
 preserve or improve the navigability of the Arkansas River. The 
 
90 ELEMENTS OF WESTERN WATER LAW 
 
 decree will also dismiss the bill of the state of Kansas as against all 
 the defendants, without prejudice to the right of the plaintiff to insti- 
 tute new proceedings whenever it shall appear that through a material 
 increase in the depletion of the waters of the Arkansas by Colorado, 
 its corporations or citizens, the substantial interests of Kansas are 
 being injured to the extent of destroying the equitable apportion- 
 ment of benefits between the two states resulting from the flow of the 
 river. 
 
 It must be emphasized that the Supreme Court in its de- 
 cree did not attempt to make an equal division of the waters 
 of the stream, but rather an equitable apportionment of bene- 
 fits. Neither the rule of prior appropriation nor that of ripar- 
 ian ownership is followed, but the case is allowed to rest on 
 the "cardinal rule of equality of right" not to the means but 
 to the results. 
 
 Legislation Regarding Interstate Streams 
 Interstate complications over the use of water must have 
 been very much in the legislative mind in 1911. In that year 
 California enacted legislation making it unlawful to transport 
 the waters of any lake or stream of the state "into any other 
 state, for use therein"; Colorado authorized a joint legislative 
 committee to investigate the interference by the federal gov- 
 ernment or any state, corporation or individual with the 
 control by Colorado of the waters within its borders; and 
 Wyoming authorized its attorney general, under the direc- 
 tion of the governor, to bring such actions "as he may deem 
 expedient to maintain the rights of the state and its citizens 
 in the waters of intersate streams." Oregon was the only 
 state in which the spirit of reciprocity was visible. There, by 
 the act of February 23, 1911, it was provided that no permit 
 for the appropriation of water shall be denied because the 
 point of diversion, or any portion of the works, or the place of 
 intended use, or any lands to be irrigated may be situated in 
 some other state; "provided, however, that the state engineer 
 may in his discretion, decline to issue a permit where the 
 point of diversion described in the application is within the 
 State of Oregon but the place of beneficial use in some other 
 state, unless under the laws of such state water may be law- 
 fully diverted within such state for beneficial use in the State 
 of Oregon." 
 
 The constitutionality of the 1911 Colorado statute was 
 questioned in Stockman v. Leddy (129 Pac. 220) which was 
 brought to compel the Auditor of Colorado, Leddy, to issue a 
 warrant for services rendered the legislative committee created 
 by the statute. The constitution of Colorado provides : "The 
 
WATER RIGHTS ON INTERSTATE STREAMS 91 
 
 water of every natural stream, not heretofore appropriated, 
 within the State of Colorado, is hereby declared to be the prop- 
 erty of the public, and the same is dedicated to the use of the 
 people of the state, subject to appropriation as hereinafter pro- 
 vided." Although the Supreme Court was obliged to hold 
 the statute invalid as it conferred "purely executive power 
 upon a collection of members of the legislative department", 
 it said that the general purpose of the act "is not only praise- 
 worthy, but strictly within the legislative field." In support 
 of the last statement it said : 
 
 The state has never relinquished its right of ownership and claim 
 to the waters of our natural streams, though it has granted to its 
 citizens, upon prescribed conditions, the right to the use of such 
 waters for beneficial purposes and within its own boundaries. The 
 property right, however, in the natural streams, and the waters flowing 
 therein, has never been renounced or relinquished by the state, and it 
 has at all times asserted not only its right of ownership, but the unre- 
 strained right, within its own boundaries, to distribute its waters to 
 those who have, under its authority, acquired, by* perfected appropria- 
 tions, the right to their use. * * * 
 
 The federal government, by its lawmaking and executive bodies, 
 knew that the natural streams of this state are, in fact, nonnavigable 
 within its territorial limits, and practically all of them have their 
 sources within its own boundaries, and that no stream of any impor- 
 tance whose source is without those boundaries, flows into or through 
 this state. The entire volume of these streams is therefore made up 
 of rains and snows that fall upon the surface of lands included within 
 the exterior lines of this state and of springs which issue from the 
 earth within the same area. Such being the peculiar conditions, the 
 state was justified in asserting its ownership of all the natural streams 
 within its boundaries. 
 
 In accordance with the 1911 act, Wyoming has brought 
 suit in the United States Supreme Court against Colorado 
 and two individual defendants regarding the diversion in Col- 
 orado of waters of the Laramie River, which flows from Colo- 
 rado into Wyoming. On March 6, 1917, the Supreme Court 
 ordered that the case be restored to the docket for reargu- 
 ment. (State of Wyoming v. State of Colorado, 37 Sup. Ct. 
 Rep. 379.) Wyoming is contending for the application of the 
 principle of prior appropriation regardless of state lines, while 
 Colorado insists upon being allowed to use all of the waters 
 within its boundaries regardless of priority. On account of 
 the great interest of the United States Reclamation Service 
 in the questions presented, the Attorney General of the 
 United States will undoubtedly be represented in the re- 
 argument. The case differs from Kansas v. Colorado in that 
 
92 ELEMENTS OF WESTERN WATER LAW 
 
 both Wyoming and Colorado have abrogated the doctrine of 
 riparian rights, which is in force in Kansas. 
 
 Walbridge v. Robinson, State Engineer (125 Pac. 812) 
 was brought to compel the state engineer of Idaho to issue a 
 certificate of completion of diversion works from Bear Creek, 
 an Idaho stream (not an interstate stream), to lands in Mon- 
 tana. In holding that the state engineer was not authorized 
 to issue the certificate, the Court said: 
 
 There is no doubt in our minds but that the state in its sovereign 
 capacity is the owner of the waters flowing in the stream thereof and 
 may exercise its authority over the same. If the foregoing proposi- 
 tions be correct, the state has the right to prohibit the diversion of 
 the waters of its streams for use outside of and beyond the boundaries 
 of the state. 
 
 The above case was decided July 3, 1912. In 1915, Idaho 
 passed a statute, similar to the 1911 Oregon statute, authoriz- 
 ing the state engineer to issue permits for the diversion of 
 Idaho waters for use in another state, provided such state has 
 legislation "whereby water may be appropriated within such 
 sister state for use within the state of Idaho." Two years 
 previously, in 1913, Nevada passed a statute of the same re- 
 ciprocal import. California, in 1917, repealed its prohibitory 
 measure of 1911, and added a new section, 15a, to the water 
 commission act, as follows: 
 
 The state water commission shall allow the appropriation of 
 water in this state for beneficial use in another state only when, under 
 the laws of the latter, water may be lawfully diverted therein for 
 beneficial use in the state of California. Upon any stream flowing 
 across the state boundary a right of appropriation having the point of 
 diversion and the place of use in another state and recognized by the 
 laws of that state, shall have the same force and effect as if the point 
 of diversion and place of use were in this state; provided, that the 
 laws of that state give like force and effect to similar rights acquired 
 in this state; provided, that nothing in this act be so construed as to 
 apply to interstate lakes, or streams flowing in or out of such lakes. 
 
 That Utah may be counted upon to join Oregon, Nevada, 
 Idaho and California in the near future is evident from the 
 following extract from the biennial report of the State Engin- 
 eer of Utah for 1913-1914 (Pg. 32), and the added fact that a 
 water commission is now at work on recommendations for 
 new legislation : 
 
 Under the existing laws the state engineer cannot consider an 
 application on an interstate stream which contemplates the appropria- 
 tion of water within this state to be used beneficially in an adjoining 
 state. There are several interstate streams in Utah, and in most of 
 them the water naturally flows into an adjoining state. Under the 
 present law, the state engineer, by having to refuse to accept such 
 
WATER RIGHTS ON INTERSTATE STREAMS 93 
 
 applications, may at times block a really meritorious scheme of devel- 
 opment. During the past two years several applications of this nature 
 have been submitted, notably on Bear River, but, on advice of the 
 attorney general, they were not accepted, for the reason that the 
 present law gives the state engineer no authority over such applica- 
 tions. I think that this matter should be taken up with the adjoining 
 states with a view of securing uniform legislation covering this class 
 of appropriations. The allowing of applications of this nature should, 
 however, rest with the state engineer. He should have authority to 
 investigate the scheme proposed by such an application, and if found 
 to be meritorious and its granting will in no way be detrimental to 
 the state, nor deprive the state of a water supply that can be econom- 
 ically and beneficially used on land within this state, the application 
 should be granted. 
 
 Legislation similar to that of Oregon, Nevada, Idaho and 
 California should be enacted by all the states where rights are 
 initiated by an application to the state engineer. Cases are 
 constantly arising where applications are made for proposed 
 systems lying partly within two states. Without definite leg- 
 islation the state engineer has no guide to action some engi- 
 neers have approved such applications, others have rejected 
 them. In New Mexico the territorial engineer approved an 
 application for the irrigation of lands in New Mexico by a 
 ditch heading in the Animas River in Colorado about six 
 miles above the interstate line. The matter reached the 
 courts and the Supreme Court of New Mexico decided that 
 "the territorial engineer was without authority to approve 
 the application in question." (Turley v. Furman, 114 Pac. 
 278.) 
 
 Not only is legislation necessary in regard to the initia- 
 tion of rights for interstate ditches in order to protect the one 
 so appropriating water, but it is badly needed in the interest 
 of the general public in dividing the public waters among 
 ditches entitled thereto. At present, the only means provided 
 by statute for distributing the waters of streams is the author- 
 ity given the water commissioners, or water masters, to close, 
 or partly close, headgates so that the later and upper ditches 
 cannot take the waters belonging to prior appropriators. As 
 such officers cannot act beyond the borders of their state, they 
 are powerless to control a ditch heading above their state 
 line. The state engineer of Nebraska reports that one ditch 
 diverting water from the North Platte in Nebraska near the 
 state line was extended so that it headed in Wyoming about 
 two hundred feet above the state line. It thereupon pro- 
 ceeded to take all the water desired while the ditches heading 
 below in Nebraska and having earlier rights had their supply 
 
94 ELEMENTS OP WESTERN WATER LAW 
 
 regulated, and in some cases entirely cut off, by the state 
 officials in charge. 
 
 To remedy this condition the state engineer of Nebraska 
 has recommended "that every canal flowing into this state 
 have a controlling gate and measuring flume just within the 
 state and in addition thereto a return canal whereby the water 
 sought to be appropriated may flow back to the stream from 
 which diverted." Other state engineers have made similar 
 suggestions. In many cases the construction of a "return 
 canal" would necessitate heavy expenditures and appear pro- 
 hibitive, but the situation on many streams is sufficiently 
 serious to warrant drastic action. 
 
 In 1917, Colorado passed a statute, similar to the 1911 
 California statute, making it unlawful to divert Colorado 
 waters to another state for use therein. The 1911 California 
 statute was copied from a statute adopted in New Jersey in 
 1905. The constitutionality of the latter was upheld by the 
 United States Supreme Court in Hudson Water Company v. 
 McCarter (209 U. S. 349). It is specifically stated in the opin- 
 ion therein, however, that "The problems of irrigation have 
 no place here . . . .", so the decision will not necessarily 
 control in attacks upon the validity of such statutes in the 
 western states. In further support of their validity it is im- 
 portant to note that most of the earlier decisions regarding 
 rights on interstate streams lay down the rule of prior ap- 
 propriation regardless of state lines in the absence of statutory 
 provisions to the contrary. The argument against such pro- 
 hibitive legislation must be based on reasons of policy rather 
 than those of law. As suggested in the quotation from Bean 
 v. Morris above, each state stands to lose just as much as it 
 can gain by such statutes although, as stated above in 
 Stockman v. Leddy, Colorado believes that it stands to lose 
 only. 
 
 Summary. From a consideration of the cases dealing 
 with interstate streams (the leading ones only being men- 
 tioned above), the following conclusions are justified. The 
 state and not the nation is superior regarding legislation con- 
 cerning the use of public waters, excepting only the matter 
 of navigation, wherein the nation controls. Between private 
 appropriators in two states recognizing only the doctrine of 
 prior appropriation, it is very probable that that doctrine will 
 be applied regardless of state lines. Between private appro- 
 priators in two states, one or both of which recognize the 
 doctrine of riparian rights, the priority of appropriations will 
 not be established, but the waters will be distributed on an 
 
WATER RIGHTS ON INTERSTATE STREAMS 95 
 
 attempted equitable basis suggested by the particular facts of 
 the case. In a controversy between two states in their sover- 
 eign capacities the principle established in Kansas v. Colorado 
 will undoubtedly be applied and the Supreme Court will decide 
 in accordance with what the facts of the case indicate to be 
 an equitable apportionment of benefits. Legislation forbid- 
 ding the diversion of waters from within a state to another 
 state is probably legally sound but is based upon such short- 
 sighted policy that it cannot prevail. 
 
CHAPTER VIII 
 
 RIGHTS OF WAY OVER PUBLIC LANDS FOR 
 DITCHES AND RESERVOIRS 
 
 As stated in the first chapter, the first congressional leg- 
 islation regarding rights of way over the public domain was 
 the Act of 1866, now Section 2339 of the Revised Statutes of 
 the United States. It acknowledges and confirms rights of 
 way for ditches used in connection with "vested and accrued" 
 water rights for "mining, agricultural, manufacturing, or 
 other purposes". It is still in force for all unreserved public 
 lands for purposes other than the generation of power. 
 
 By virtue of the provisions of the Act of 1866, one may 
 go upon the public domain, dig his ditch, divert and apply 
 water to beneficial use, and thus secure right of way over the 
 land occupied. As the act recognizes only rights of way for 
 ditches used in connection with vested water rights, it has 
 been argued that no right of way attaches until the comple- 
 tion of the works so that the water can be diverted. The 
 California Court of Appeals has held otherwise, however, in 
 de Wolfskill v. Smith (5 Cal. App. 175). The plaintiff had 
 posted notices of water appropriation at abandoned oil wells, 
 on unoccupied public land, from which water was flowing. 
 She proceeded with her ditch construction with due diligence 
 until enjoined by the defendant Smith, who had made home- 
 stead entry on the land soon after the notices were posted. 
 Although the court points out that the posting of a notice 
 "does not constitute an appropriation" and that the "right to 
 water depends upon . . . making an actual appropria- 
 tion of its use", it holds : 
 
 By posting the notice appellant (plaintiff) from that time became 
 vested with the right to the use of the stream of water then flowing 
 from these wells, together with the right to construct over and across 
 the land the necessary ditches to divert and conduct the same to the 
 place of intended use. 
 
 96 
 
RIGHTS OF WAY OVER PUBLIC LANDS 97 
 
 In Lynch v. Lower Yakima Irrigation Co. (131 Pac. 
 389), the Supreme Court of Washington has held that Sec- 
 tion 2339 gives the right to continued possession, even though 
 the ditch had not been completed when the land to be oc- 
 cupied by the ditch was entered. It is, therefore, in accord 
 with the deWolfskill case. 
 
 It is certain that as against the government the water right 
 is not considered vested until the diversion works are com- 
 pleted and ready for use. Under the provisions of the Recla- 
 mation Act the public lands within a reservoir site, known as 
 Alkali Lake, in Antelope Valley, California, were withdrawn 
 from entry. The Rickey Land and Cattle Company owned all 
 the private land within the site and also irrigation ditches 
 running from the West Walker River to the site, which it in- 
 tended to use for storage purposes. It applied for right of 
 way. over the public land within the reservoir site under the 
 Act of 1891, and, after the rejection of its application by the 
 Secretary of the Interior, it proceeded with the construction 
 of a tunnel outlet, claiming that its rights were vested under 
 the Act of 1866. The government, in the interest of the 
 Reclamation Service, thereupon instituted suit and the com- 
 pany was enjoined from prosecuting the construction work. 
 (U. S. v. Rickey Land & Cattle Company, 164 Fed. 496.) In 
 this case it was impossible to use the reservoir before the 
 completion of an outlet tunnel and channel for the return of 
 the stored waters to the West Walker River. After quoting 
 Sections 2339 and 2340 of the Revised Statutes, the Court 
 says : 
 
 It is very clear that no one can under these sections acquire as 
 against the government, a vested easement in and to public lands, for 
 a reservoir site, until the actual completion of the reservoir, so that 
 the waters to be impounded therein may be applied to the beneficial 
 uses, contemplated by the irrigation system of which it forms a part. 
 
 This was the construction placed upon these sections by the 
 Supreme Court, in Bear Lake Irrigation Company vs. Garland, 164 U.S., 
 pages 1, 18 and 19, in which case it was said: 
 
 It is the doing of the work, the completion of the well, or the 
 digging of the ditch, within a reasonable time from the taking of pos- 
 session, that gives the right to use the water in the well or the right 
 of way for the ditches or the canal upon or through the public land. 
 Until the completion of this work, or, in other words, until the per- 
 formance of the condition upon which the right to forever maintain 
 possession is based, the person taking possession has no title, legal 
 or equitable, as against the government. 
 
 Regardless, therefore, of the California and Washington 
 cases, no one planning any material diversion work should 
 rest upon the Act of 1866, but should secure his right of way, 
 
98 ELEMENTS OF WESTERN WATER LAW 
 
 or permission to occupy public lands, before initiating actual 
 work. 
 
 Act of March 3, 1891 : The Act of March 3, 1891, grants 
 rights of way over public lands and reservations for irriga- 
 tion ditches and reservoirs upon the approval of applications 
 by the Secretary of the Interior. Such applications must be 
 filed with the registrar of the land district in which the ditch 
 or reservoir is to be located. The required contents of papers 
 and maps forming the application are specified in detail in the 
 regulations of the General Land Office, and the applicant must 
 follow the directions to the letter. (Copies of the regulations 
 will be sent on request -to the General Land Office, Wash- 
 ington, D. C.) The right of way granted extends, where 
 necessary for construction or maintenance, "fifty feet on each 
 side of the marginal limits" of the ditch or reservoir, and the 
 term "marginal limits" has been construed to mean the high 
 water line. The right is also given to take from the adjacent 
 public land material, earth and stone necessary for the con- 
 struction work, but it has been held that this right is for con- 
 struction work only and not for repairs or improvements. 
 
 The act specifically provides that "the privilege herein 
 granted shall not be construed to interfere with the control 
 of water for irrigation and other purposes under authority of 
 the respective states and territories." The land office accord- 
 ingly does not attempt to regulate appropriations of public 
 waters, but simply insists upon a showing by the applicant 
 that the state or territorial laws governing water rights have 
 been complied with. 
 
 The act further provides that if any part of the ditch shall 
 not be completed within five years after its location, the right 
 of way for such part shall be forfeited. Regarding such for- 
 feitures, the Secretary of the Interior has held that the juris- 
 diction of the Interior Department is lost upon the approval 
 of an application, and any action looking to the cancellation 
 or annulment of the right of way must be brought in the 
 courts. The regulations call for the filing of affidavits on the 
 completion of the ditch or reservoir. If the line of the right 
 of way as granted has been departed from, new maps and 
 field notes must be filed and the right to the original but 
 unused line relinquished. 
 
 The act also provides "that no such right of way shall be 
 so located, as to interfere with the proper occupation by the 
 government of any such reservation, and all maps of location 
 shall be subject to the approval of the department of the gov- 
 ernment having jurisdiction of such reservation." Under 
 
RIGHTS OF WAY OVER PUBLIC LANDS 99 
 
 this provision the Forest Service has prepared special regula- 
 tions governing rights of way through the national forests. 
 No construction work in a national forest will be allowed on 
 such rights of way until the application has been approved by 
 the Secretary of the Interior, or unless permission for such 
 work has been specifically given, and as a condition precedent 
 to such approval the applicant must enter into such stipula- 
 tion and execute such bond as the Forest Service may require. 
 For ditches and reservoirs occupying part of government res- 
 ervation other than national forests, no application for right of 
 way will be approved by the Secretary of the Interior until 
 it has been approved by the department in charge. If the 
 right of way is upon unsurveyed lands, the map must be filed 
 within twelve months after the official survey thereof, and no 
 application for such right of way can be .approved prior to the 
 official survey. 
 
 The following paragraph from the regulations clearly 
 states the nature of the grant of right of way under the act 
 of 1891 : 
 
 The right granted is not in the nature of a grant of lands, but is a 
 base or qualified fee. The possession and right of use of the lands 
 are given for the purposes contemplated by law, but a reversionary 
 interest remains in the United States, to be conveyed by it to the 
 person to whom the land may be patented whose rights will be subject 
 to those of the grantee of the right of way. All persons settling on a 
 tract of public land, to part of which right of way has attached for a 
 canal, ditch, or reservoir, take the land subject to such right of way, 
 and at the total area of the subdivision entered, there being no author- 
 ity to make deduction in such cases. If a settler has a valid claim to 
 land existing at the date of the filing of the map of definite location, 
 his right is superior, and he is entitled to such a reasonable measure 
 of damages for right of way as may be determined upon by agreement 
 or in the courts, the question being one that does not fall within the 
 jurisdiction of this Department. Section 21 of the act of March 3, 1891, 
 provides that the grant of a right of way for a canal, ditch, or reservoir 
 does not necessarily carry with it a right to the use of land 50 feet 
 on each side, but only such land may be used as is necessary for con- 
 struction, maintenance, and care of the canal, ditch, or reservoir. The 
 width is not specified. 
 
 Act of May 11, 1898: The Act of May 11, 1898, author- 
 izes the use of rights of way granted under the Act of 1891 
 for purposes subsidiary to the main purpose of irrigation, as 
 is shown by the following clause from section two of the act : 
 
 And said rights of way may be used for purposes of water trans- 
 portation, for domestic purposes, or for the development of power, as 
 subsidiary to the main purpose of irrigation. 
 
100 ELEMENTS OP WESTERN WATER LAW 
 
 In all cases the applicant must prove to the satisfac- 
 tion of the Interior Department that the intended use, other 
 than irrigation, is really subsidiary thereto, and the proof must 
 be especially clear where the development of power is con- 
 templated. 
 
 Act of February 1, 1905: Section four of the Act of 
 February 1, 1905, authorizes the Secretary of the Interior to 
 grant rights of way through national forests to citizens and 
 corporations of the United States "for municipal or mining 
 purposes and for the purposes of milling and reduction of 
 ores." The nature of the grant is the same as that under the 
 Act of March 3, 1891, except that no right is given to take 
 any material, earth, or stone for construction or other pur- 
 poses, and that the right of way is restricted to the strip neces- 
 sary for the construction and maintenance of the works. Appli- 
 cations are made in the same way as those under the Act of 
 1891. 
 
 Act of February 15, 1901 : Although other uses are spec- 
 ified in this act, it is now of importance only in regard to 
 rights of way through the public lands and reservations for 
 reservoirs and canals for the generation of electric power, and 
 for electric transmission, telephone and telegraph lines. It is 
 provided in the act that any permission given thereunder may 
 be revoked by the Secretary of the Interior in his discretion. 
 The right granted is a mere license, revocable at any time, 
 and does not carry with it permission to take material, earth, 
 or stone from the public lands or reservations for construc- 
 tion or other purposes. 
 
 The Act of February 1, 1905, transferred the administra- 
 tive control of the national forests from the Interior Depart- 
 ment to the Department of Agriculture, so that the latter 
 department has jurisdiction over all applications under the 
 act of February 15, 1901, for permission to occupy lands in 
 national forests. Public lands of the United States chiefly 
 valuable for power purposes may be withdrawn from settle- 
 ment or entry and reserved for power purposes under the 
 withdrawal act of June 25, 1910, as amended by act of 
 August 24, 1912, or under Sections 13 and 14 of the omnibus 
 Indian Act of June 25, 1910. 
 Comments on Departmental Regulations Act of Feb. 15, 1901 
 
 The most recent regulations governing applications under 
 the act of 1901 are those of the Agricultural Department, 
 issued December 14, 1915, and those of the Department of 
 the Interior, approved March 1, 1913. The regulations of the 
 two departments are practically the same and permit the 
 
RIGHTS OF WAY OVER PUBLIC *.i 
 
 right of occupancy for a period of fifty years, "unless sooner 
 revoked by the Secretary". 
 
 Under the regulations, preliminary power permits are 
 issued for the purpose of securing the data required for an 
 application for final permit. Final power permits allow the 
 occupancy of the lands for the purpose of constructing, main- 
 taining and operating power plants. Applications for permits 
 to occupy lands other than national forest lands are made to 
 the local land office of the land district in which the lands are 
 situated. Applications for permits to occupy national forest 
 lands are made to the district forester of the district in which 
 the lands are situated. 
 
 In issuing final power permits a date is fixed for the be- 
 ginning and for the completion of construction work. In 
 some of the western states, notably California and Oregon, 
 there is a co-operative agreement between the state engineer 
 (or water board or commission) and the federal departments, 
 under which state and federal officers act together in passing 
 upon applications for power purposes and fix the same time 
 periods for beginning and completion of construction in issu- 
 ing permits the state office issuing the "water permit", and 
 the federal office the "land permit." 
 
 That both departments recognize that water appropria- 
 tions are in the control of the state is clear from the following 
 paragraph, which is contained in the two sets of regulations in 
 the enumeration of items forming the application for prelim- 
 inary permit : 
 
 A duly certified copy of such notice of application, if any, as is 
 required to be posted or filed, or both, to initiate the appropriation of 
 water under the local laws. This notice or application should provide 
 for use, by the applicant for a power permit or by his predecessors, of 
 sufficient water for the full operation of the project works. Int. Dept. 
 Reg. 10 (L). 
 
 Indeterminate Licenses 
 
 Although, as stated in the regulations, the permit is for 
 fifty years only, that the tendency of the two departments is 
 towards the indeterminate license is indicated by the follow- 
 ing paragraph from the regulations of the Interior Depart- 
 ment (the regulations of the Agricultural Department being 
 but slightly different upon this point) : 
 
 Upon demand in writing by the Secretary to surrender the permit 
 to the United States or to transfer the same to such state or municipal 
 corporation as he may designate, and to give, grant, bargain, sell, and 
 transfer with the permit all works, equipment, structures, and property 
 then owned or held by the permittee on lands of the United States 
 occupied or used under the permit, and then valuable or serviceable in 
 
102 . ELEMENTS . OF WESTERN WATER LAW 
 
 the generation, transmission, and distribution of power: Provided, (1) 
 That such surrender or transfer shall be demanded only in case the 
 United States or the transferee shall have first acquired such other 
 works, equipment, structures, property and rights of the permittee as 
 are dependent in whole or in essential part for their usefulness upon 
 the continuance of the permit; (2) that such surrender or transfer shall 
 be on condition precedent that the United States shall pay or the 
 transferee shall first pay to the permittee the reasonable value of all 
 such works, equipment, structures, and property to be surrendered or 
 transferred; (3) that such reasonable value shall not include any sum 
 for any permit, right, franchise, or property granted by any public 
 authority in excess of the sum paid to such public authority as a pur- 
 chase price thereof; and (4) that such reasonable value shall be deter- 
 mined by mutual agreement of the parties in interest, and in case 
 they can not agree, by the Secretary under a rule, which, except as 
 modified by the requirements of this paragraph, shall be the then 
 existing rule of valuation for power properties in condemnation pro- 
 ceedings in the state in which the properties to be surrendered or 
 transferred are located. But nothing herein shall prevent the United 
 States or any state or municipal corporation from acquiring by any 
 other lawful means the permit or the works, equipment, structures, or 
 property then owned or held by the permittee on lands of the United 
 States occupied or used under the permit. Int. Dept. Reg. 14 (S). 
 
 In a permit issued in favor of the International Power 
 and Manufacturing Company on Clark Fork of Pend d'Oreille 
 River in the State of Washington under date of July 22, 1913, 
 and executed by both the Secretary of the Interior and the 
 Secretary of Agriculture, it is provided that the permit shall 
 be indeterminate, but revocable for non-payment of annual 
 taxes or for violations of other provisions. It is added, how- 
 ever, in the same section of the permit that, "It is further 
 understood and agreed that under the terms of said act of 
 Congress 'any permission given by the Secretary of the In- 
 terior under the provision of this act may be revoked by him 
 or by his successor in his discretion'." The permit is, there- 
 fore, indeterminate in name only. As the act makes the per- 
 mission revocable, no Secretary can bind his successor to 
 other conditions. 
 
 Regulation of Rates and Service 
 
 When the act of February 15, 1901 was passed, little was 
 known of the power of the states in the regulation of public 
 utilities. Cities and counties had regulated rates for domestic 
 water supply and irrigation supply, but little otherwise had 
 been done. Most of the western states now have public util- 
 ity commissions which have power not only to regulate rates 
 of all public utilities, but also to regulate their service as well. 
 
RIGHTS OF WAY OVER PUBLIC. LANDS 103 
 
 Much has been said in recent years of a growing power 
 monopoly. As monopoly implies control over output and 
 prices, monopolies cannot exist under the jurisdiction of public 
 utility commissions. As the commissions have the power to 
 fix rates and compel service, the public is completely pro- 
 tected, provided no capitalization of franchise values is al- 
 lowed. This point was not cared for in any of the federal 
 right-of-way regulations issued prior to those of 1913. The 
 regulations of both the Interior Department and the Agri- 
 culture Department now contain the following: 
 
 That in respect to the regulation by any competent public author- 
 ity of the service to be rendered by the permittee or the price to be 
 charged therefor, and in respect to any purchase or, taking over of the 
 properties or business of the permittee or any part thereof by the 
 United States, or by any state within which the works are situated or 
 business carried on in whole or in part, or by any municipal corpora- 
 tion in such state, no value whatsoever shall at any time be assigned 
 to or claimed for the permit or for the occupancy or use of Interior 
 Department lands thereunder, nor shall such permit or such occupancy 
 and use ever be estimated or considered as property upon which the 
 permittee shall be entitled to earn or receive any return, income, price, 
 or compensation whatsoever. Int. Dept. Reg. 14 (T). 
 
 Although there appears no satisfactory reason why 
 rights-of-way for irrigation, mining, and domestic purposes 
 should be put upon a basis different from that of power, it is 
 believed that there will be general ratification among those 
 interested in power development if the act can be so amended 
 that the revocable permit will be changed to an indeterminate 
 license along the lines now incorporated in the regulations of 
 the two departments and quoted above. If this be done, and 
 the two departments are certainly desirous of co-operating 
 in securing such legislation, the only real objection to existing 
 regulations will be regarding the annual charge. 
 
 The Annual Charge 
 
 The annual charge as fixed in the regulations of the two 
 departments runs from lOc for the first year to $1 for the tenth 
 and each succeeding year per horsepower of the "rental capac- 
 ity of the power site." In the permit to the International Power 
 and Manufacturing Co. no compensation is required for the 
 first ten years, and thereafter the company must pay an 
 amount calculated from the total capacity of the power site 
 at rates per horsepower per year, varying directly as the 
 square of the average price for electric energy charged to, 
 consumers and customers of the company, and a table is set 
 forth in the permit showing the charges to be paid under 
 
104 ELEMENTS OF WESTERN WATER LAW 
 
 varying conditions. In addition to this innovation, the permit 
 fixes the maximum price at which electric energy can be sold, 
 and also forbids any contract providing for furnishing to one 
 consumer in excess of 50% of the output of the plant. It is 
 also stated regarding submission to rate fixing bodies : 
 
 And provided further, That in the absence of regulation of service 
 and prescribing of prices by any state agency, jurisdiction in the 
 premises will, in their discretion, be exercised by the Secretaries. 
 
 There are two main arguments for the elimination of the 
 annual tax first, that it amounts to a direct increased charge 
 to the consumer; and second, that it is not consistent with 
 public policy regarding the development of our resources. 
 
 In answer to the first, the proponents of the annual tax 
 originally stated that the time had not come when public 
 service commissions could so regulate rates that the annual 
 tax would be listed as an item of operating expenses to be 
 allowed the utility and to be paid by the consumer. The time 
 has now come, however, and the commissions of a number of 
 the western states have definitely fixed the rates of hydro- 
 electric power utilities, after careful analysis of all the ele- 
 ments controlling such rates. 
 
 In the early history of this country the public lands were 
 looked upon as a source of revenue only. This view point 
 changed with the passage of the homestead act, and since 
 that time our land laws have been based upon development 
 rather than financial return to the nation. The Desert Land 
 Act, the Carey Act, the Reclamation Act and the various 
 right of way acts in behalf of railroads and canals for irriga- 
 tion, mining and domestic purposes are excellent illustra- 
 tions. In none of these acts does the nation seek a financial 
 return for the land, other than the nominal charge of $1.25 
 per acre under the Desert Land Act. The Departments of 
 Agriculture and the Interior through their regulations, regard- 
 ing rights of way for power purposes, have chosen to depart 
 from this public policy by fixing an annual charge. The 
 situation would be more easily understood if an annual charge 
 for the occupancy of the public land for any and all purposes 
 were now levied. But no such recommendation has been 
 made. 
 
 True conservation necessarily implies the elimination of 
 waste the keeping of those things in storage which can well 
 be so kept, and the using of those things which are of fleet- 
 ing value. There is probably no better illustration of this 
 latter class than water power development. Water power 
 unused is wasted, but when used takes the place of coal, oil, 
 
RIGHTS OP WAY OVER PUBLIC LANDS 105 
 
 natural gas and other fuels, which can be left stored in their 
 natural condition until needed for other commercial purposes. 
 Under a true spirit of conservation, power companies should 
 be encouraged by a bonus, if necessary, to enter the field of 
 hydroelectric development rather than to make inroads into 
 exhaustible supplies of fuel. A practical spirit should at 
 least dictate that water power projects should not be treated 
 differently than other development work. 
 
 The fees fixed by the regulations of the departments are 
 not based on the claim of federal ownership of the water, but 
 of the land. That the applications are for right of way priv- 
 ileges and not water rights is emphasized in the following 
 from Utah Power and Light Co. v. United States (37 Sup. 
 Crt. Rep. 387, 392) decided by the United States Supreme 
 Court March 19, 1917: 
 
 Much is said in the briefs about several congressional enactments 
 providing or recognizing that rights to the use of water in streams 
 running through the public lands and forest reservations may be 
 acquired in accordance with local laws, but these enactments do not 
 require particular mention, for this is not a controversy over water 
 rights, but over rights of way through lands of the United States, 
 which is a different matter, and is so treated in the right-of-way acts 
 before mentioned. See Snyder v. Colorado Gold Dredging Co., 104 
 C.C.A. 136, 181 Fed. 62, 69. 
 
 As the defendants have been occupying and using reserved lands 
 of the United States without its permission and contrary to its laws, 
 we think it is entitled to have appropriate compensation therefor 
 included in the decree. The compensation should be measured by the 
 reasonable value of the occupancy and use, considering its extent and 
 duration, and not by the scale of charges named in the regulations, as 
 prayed in the bill. 
 
 It should be noted that the Supreme Court holds that the 
 annual charge should be measured by the reasonable value of 
 the occupancy and use, and not by the scale of charges named 
 in the regulations. In a pamphlet entitled "Water Power" 
 (prepared in connection with the Ferris Bill a water power 
 bill pending in Congress during 1914-16) Secretary Lane said 
 in part : 
 
 The true value of power sites is, then, not the nominal figure of 
 $1.25 per acre, not their value as agricultural lands, timber lands, or 
 coal lands, but their value as dam sites, reservoir sites, or for other 
 uses in connection with water-power development, and for this pur- 
 pose the larger and more valuable sites are worth millions of dollars. 
 
 Secretary Lane specifically argued against the govern- 
 ment asking a return on any such amount, but the above 
 statement represents his view of values. The subject is decid- 
 edly a debatable one among both engineers and lawyers. The 
 
106 ELEMENTS OF WESTERN WATER LAW 
 
 Interior Department, through its Reclamation Service, is 
 probably the greatest single user of reservoirs. Its engineers 
 in negotiating for its many reservoir sites, strenuously ob- 
 jected to allowing anything in excess of a good market price 
 for the tracts as agricultural land or timber land. To revert 
 to the expression used in the above quotation from the Utah 
 Power Co. case, the experienced engineers of the Reclama- 
 tion Service could not endorse the Secretary's value of 
 "millions of dollars" as a "reasonable value of the occupancy 
 and use." 
 
 The popular notion of the great pecuniary value of reser- 
 voirs, water rights, and other intangibles in connection with 
 power development is a pure myth so far as the average 
 project is concerned. Because the water falls without effort, 
 the popular mind has thought of projects conceived and con- 
 summated in the same way. The opinion of the California 
 Supreme Court in San Joaquin Light and Power Co. v. Rail- 
 road Commission (165 Pac. 16) should, therefore, be illumin- 
 at'ng. In it, the Supreme Court upholds the Railroad Com- 
 mission in refusing to allow the Power Company anything 
 for its water rights other than the money actually expended 
 in acquiring them. It said: 
 
 The Commission, in the present case, made an allowance for such 
 value, based upon the cost incurred in the acquisition of these rights. 
 The petitioner claims that a further allowance should have been made. 
 Concededly, the burden is upon the public utility, in cases of this kind, 
 to show the existence of any value claimed by it. In the effort to 
 establish the value of its water rights, the petitioner proceeded upon 
 two theories. 
 
 The first of these is described in the briefs as the "comparative 
 steam cost theory." It is well described in the respondent's brief as 
 "based on the assumption that the value of petitioner's water rights 
 can fairly be determined by capitalizing at 8 per cent., the difference 
 in the cost of service resulting from the operation of petitioner's 
 hydraulic installations and what the cost of service would be if peti- 
 tioner's electric energy were generated in a steam plant located near 
 the oil field and burning oil." Of this element of the case it is suffi- 
 cient to say that there was substantial evidence before the Commission 
 to the effect that, at the ruling price of oil at the time of the hearing, 
 the petitioner could generate electricity by means of steam plants 
 at a less cost than that involved in the operation of its hydro-electric 
 plants, after making due allowance for all charges in connection with 
 the installation of the necessary steam plants. According to this testi- 
 mony, the advantage in favor of generation by steam would continue 
 until the price of oil had increased by 50 per cent. Without expressing 
 any opinion regarding the propriety of this method of fixing the value 
 of a water right, it is perfectly obvious that the Commission did not 
 
RIGHTS OF WAY OVER PUBLIC LANDS 107 
 
 impair the petitioner's rights, when it concluded that the application 
 of the comparative steam cost theory did not show that the water 
 rights had any value beyond their cost. 
 
 An engineer seeking a source of power for a private in- 
 dustrial development certainly would not recommend an 
 hydroelectric installation unless such installation was less ex- 
 pensive, considering all financial features including first cost, 
 maintenance and operation, than a steam plant. The same 
 acid test should be applied to hydroelectric power utilities. 
 There can be no value to a water right, or "reservoir value" 
 or similar intangible, if the power can be produced and dis- 
 tributed to present points of use at a lower cost by some other 
 practical method of installation. It is evident, therefore, that 
 no general scale of "occupancy values" can be made. Each 
 project must be considered on its own basis. If the policy of 
 the annual charge must continue, the fairest general rule to 
 apply would be to fix an annual rental equal to that which 
 the land occupied would return if in private ownership. 
 Private property is, of course, subject to condemnation, where 
 the property is necessary to the operation of a public utility. 
 There is no good reason for not submitting the public domain 
 to the principles of condemnation. There is abundant reason, 
 however, for adopting such reasonable congressional legisla- 
 tion that the question of condemning public lands will become 
 unthinkable from the business standpoint. 
 
 Water Powers on Navigable Streams 
 
 As stated in the previous chapter, the nation has the 
 undoubted right to control navigable streams in the interests 
 of navigation. Under the congressional act of June 23, 1910, 
 providing for the use of navigable streams in power develop- 
 ment, a power company can obtain a franchise for a term not 
 exceeding 50 years, but with no provision for renewal of 
 franchise or compensation to the company for its property at 
 the end of the term. An annual tax must also be paid. 
 
 In line with suggestions made for right of way permits, 
 it is believed that the franchise for power development on 
 navigable streams should be indeterminate, and that the an- 
 nual charge should be only sufficient to reimburse the nation 
 for any expenditures in behalf of such development. 
 
 Summary 
 
 In the interest of railroad, irrigation, mining and munici- 
 pal water supply development, the national government 
 has enacted very liberal right of way acts. In the in- 
 stance of power development, only, is the legislation 
 
108 ELEMENTS OF WESTERN WATER LAW 
 
 unreasonable. Although the political power ,of the state 
 over the power business (when intrastate) is conceded 
 to be superior to that of the nation, departmental regulations 
 governing the use of the public ^domain and navigable waters 
 in power development attempt in a measure to regulate the 
 business itself. Although the nation has the right to charge a 
 rental for the use of its public lands, it has only done so, so 
 far as rights of way are concerned, in the case of power pro- 
 jects. Such rental charges have been fixed by departmental 
 regulation in an arbitrary scale, and are not measured by the 
 reasonable value of the right of occupancy in a given case. 
 Public policy should dictate consistency in the use of the 
 public domain. If the nation will exact from every industry, 
 using its lands in the future, a rental charge commensurate 
 with the value of the lands taken and occupied, the railroad 
 man, the miner, and the irrigator may object, but the policy 
 thus inaugurated will at least be consistent. Under proper 
 insistence upon diligence in development and use, and the 
 prohibition of intangible values, hydroelectric power devel- 
 opment should secure the positive encouragement of both 
 state and nation, as it utilizes and conserves the natural re- 
 sources, now going to waste or being uneconomically used, 
 in a manner not possible in any other industry. 
 
CHAPTER IX 
 
 COMMERCIAL AND CO-OPERATIVE IRRIGATION 
 ENTERPRISES 
 
 A study of the historical development of irrigation in the 
 western states shows that the small mountain streams along 
 the overland trails and at or near the trading posts were the 
 first to be used for agricultural purposes. As mines were 
 discovered and operated, the waters of the streams in the 
 larger valleys were diverted by simple ditches on the lower or 
 bottom lands. Later two or more settlers joined in the con- 
 struction of larger ditches for the irrigation of land higher up 
 on the stream, and in this way all easily accessible lands in 
 the valley were irrigated. These individual and partnership 
 ditches were sufficient for the lower lands. 
 
 It soon became known that the higher, or mesa lands, 
 were better than the bottom lands, but the problem of digging 
 ditches to them offered too many difficulties for local accom- 
 plishment. It was at this point that eastern and foreign cap- 
 ital was secured for the construction of irrigation canals to 
 reach the higher lands. The size and number of such systems 
 built during the eighties indicate that the promoters had an 
 easy task, and when we consider the time and results of the 
 early irrigation their success must be taken as a matter of 
 course. The simple ditches then in use were the single instru- 
 ment by which land worth nothing had been brought into a 
 high state of cultivation and great value. It was easy, there- 
 fore, to picture the rich returns of thousands of acres of such 
 land, now barren and worthless, when under a well con- 
 structed canal. No argument was necessary to convince the 
 investor that the real wealth lay in the water, and that a sys- 
 tem of selling water for irrigation was better than a gold mine. 
 
 We now know that most of the systems thus built were 
 financial disasters and that the failure was not due to either 
 lack of land or water, or want of engineering skill.. The chief 
 error was the neglect to "tie" the land to the water. The pro- 
 
 109 
 
110 
 
 ELEMENTS OF WESTERN WATER LAW 
 
 moters and investors were right in believing that the land 
 without the water must remain valueless, but they erred in 
 thinking that the settlers on the land under the system would 
 promptly take water on any terms dictated. The settler, un- 
 fortunately, was in most cases a mere "sooner," a waiter of 
 fortune who hurried to the choice land, there to stay until 
 bought out by the real home builder. During the eighties most 
 of the land to be covered by the larger systems was govern- 
 ment land and there were no statutes by means of which the 
 canal company could protect itself against filings by "sooners" 
 or secure a lien upon the land for its unpaid water charges. 
 Every western state affords illustrations of large sums lost to 
 its investors in such irrigation enterprises (now called com- 
 mercial enterprises) and intelligent capital today will invest in 
 no scheme where land and water do not go together. In fact, 
 the attractive enterprise is really a land deal, to which the 
 construction of the irrigation system is but incidental. 
 
 The following table (from the census statistics) shows 
 the total area irrigated in 1909, the area irrigated in 1909 by 
 co-operative enterprises, and the area irrigated in 1909 by 
 commercial enterprises. The commercial enterprise differs 
 from the mutual or co-operative enterprise in that the former 
 supplies water for compensation to parties having no interest 
 in the works, and the latter supplies water to stockholders 
 only. 
 
 A 
 
 STATE Acr 
 
 Arid States 
 Arizona 
 
 Jl Classes of 
 Enterprises, 
 eage irrigated, 
 1909 
 
 13,738,485 
 320 051 
 
 Co-operative 
 Enterprises. 
 Acreage irrigated, . 
 1909 
 
 4,643,539 
 101 025 
 
 Commercial 
 Enterprises. 
 A-creage irrigated, 
 1909 
 
 1,451,806 
 80 
 
 California 
 Colorado 
 Idaho 
 
 2,664,104 
 2,792,032 
 1,430,848 
 
 779,020 
 1,273,141 
 628,102 
 
 746,265 
 159,457 
 
 44,872 
 
 Kansas 
 
 37 479 
 
 27 372 
 
 
 Montana 
 Nebraska 
 Nevada 
 
 1,679,084 
 255,950 
 701,833 
 
 333,926 
 78,605 
 78,966 
 
 62,544 
 24,834 
 8,864 
 
 New Mexico 
 North Dakota 
 Oklahoma 
 
 461,718 
 10,248 
 4 388 
 
 251,911 
 
 2 000 
 
 28,190 
 
 Oregon 
 
 South Dakota 
 Texas (exclusive of 
 rice) 
 Utah 
 
 686,129 
 63,248 
 
 164,283 
 999,410 
 
 149,985 
 13,601 
 
 41,186 
 687,260 
 
 77,387 
 6,300 
 
 73,440 
 64,727 
 
 Washington 
 Wyoming 
 
 344,378 
 1,133,302 
 
 81,122 
 116,317 
 
 66,911 
 87,935 
 
IRRIGATION ENTERPRISES 111 
 
 As California has comparatively so large a percentage of 
 commercial enterprises, it might be inferred that such projects 
 are especially numerous and popular. The fact is, however, 
 that the large acreage so served is under a small number of 
 unusually extensive systems and that the mutual systems are 
 the rule. 
 
 The commercial enterprises may be divided into three 
 groups as follows: 
 
 First: Enterprises furnishing water on annual rental 
 basis only ; 
 
 Second : Enterprises selling water rights and charging 
 either a fixed or variable annual rate in addition; 
 
 Third: Enterprises selling water rights and a pro rata 
 interest in the irrigated system. The enterprises of this group 
 become mutual enterprises. 
 
 First Group of Commercial Enterprises. Among the 
 well-known California examples of commercial enterprises 
 delivering water on a rental basis only, are the Moore Ditch, 
 now the property of the Yolo Water and Power Co., irrigating 
 land on the west side of the Sacramento Valley near Wood- 
 land; the San Joaquin and Kings River Canal and Irrigation 
 Company, irrigating a large area on the west side of the San 
 Joaquin Valley; and the Pacific Gas and Electric Company, 
 operating a number of canals in the foothills of the Sierra in 
 Placer County. The Steamboat Canal is one of the oldest 
 canals in Truckee Meadows, Nevada. The Ridenbaugh Canal 
 is one of the most important of the older canals in Idaho. 
 It irrigates a large area in the Boise Valley. 
 
 Second Group of Commercial Enterprises. This type of 
 enterprise, selling water rights and charging an additional 
 annual rate, was decidedly the favorite system in the earlier 
 irrigation development. The well-known California Develop- 
 ment Company, diverting water from the Colorado River for 
 delivery to the mutual water companies in the Imperial Val- 
 ley, is an excellent illustration. The Fresno Canal and Irriga- 
 tion Company irrigates a large area in the vicinity of Fresno, 
 California. The Arizona Canal is one of the best known of 
 the older systems in Arizona. It irrigates a large area in the 
 Salt River Valley and has been absorbed by the Salt River 
 project of the Reclamation Service. The Pecos Irrigation and 
 Improvement Company, one of the largest irrigation projects 
 in New Mexico, has been taken over by the Reclamation 
 Service in connection with the Carlsbad project. The Sunny- 
 side Canal, the best known of the older systems in the Yakima 
 Valley, Washington, is now part of the Yakima project of the 
 
112 ELEMENTS OF WESTERN WATER LAW 
 
 Reclamation Service. The Sunnyside Canal was a mixture of 
 group one and group two, as it served lands holding water 
 rights for one annual rental and also served lands without 
 water rights for an increased annual rental. 
 
 Third Group of Commercial Enterprises. A number of 
 the best known mutual water companies of southern Califor- 
 nia were originally enterprises of this group. The Riverside 
 Trust Company formerly owned the land and the water rights 
 now under the Gage Canal in the vicinity of Riverside, Cali- 
 fornia. The land was sold with shares of stock in the canal 
 company. The Patterson Land Company, irrigating about 
 19,000 acres on the west side of the San Joaquin River in 
 Stanislaus County, in selling its land includes one share of 
 stock in the water company. Under the agreements of sale, 
 the land company will retain management until 75% of the 
 land is sold, after which the land purchasers will be given 
 control, and the water company will be a regular mutual 
 company. In the eighties a number of canal systems were 
 built in Colorado which sold water rights and also charged 
 an annual rate. This custom was stopped by the Anti-Royalty 
 Act of 1887, which made it unlawful for a ditch owner to 
 accept payment, corresponding to that for the so-called water 
 right, before supplying water at the annual rate. To evade 
 the provisions of the act water rights were sold providing 
 that when water rights amounting to the estimated capacity 
 of the canal were sold, the company would transfer the system 
 to a new company formed exclusively of water users. In the 
 early days, the estimated capacity was placed so high that it- 
 would not become necessary to form the new company and 
 relinquish the works. In more recent years, however, such 
 contracts have been executed and the capacity fixed by the 
 company in good faith, and the type has been extensively used 
 not only in Colorado but in Nebraska and Oregon also. 
 
 Co-operative or Mutual Enterprises 
 
 The co-operative enterprises referred to in the table are 
 those which are controlled by the water users under some 
 organized form of co-operation. Ordinarily this form is a 
 regular corporation and the water rights are represented by 
 stock in the corporation. Individual and partnership enter- 
 prises which belong to individual water users or to a small 
 group of users are not included under the caption, "Co- 
 operative Enterprises," in the table. 
 
 The mutual enterprise is an old type in California. So 
 long ago as 1856 the Los Angeles Vineyard Association was 
 formed in San Francisco and purchased a large tract of a Span- 
 
IRRIGATION ENTERPRISES 113 
 
 ish rancho lying along the Santa Ana River in Los Angeles 
 County. The original plan was to work the land upon a 
 co-operative basis for about three years and then make an 
 allotment of the subdivisions. In 1859 the Anaheim Water 
 Company was incorporated and the irrigation system was 
 conveyed to it. The stock of the water company was divided 
 into fifty shares and was then made appurtenant to the land 
 and could be conveyed only with the land. 
 
 As stated above, the California Development Company, 
 diverting water from the Colorado River for irrigation in the 
 Imperial Valley, furnished water to mutual water companies. 
 The companies are known as Imperial Water Companies Nos. 
 1, 4, 5, 6, 7, 8 and 12. They differ from the ordinary mutual 
 companies in that they own a part only of the system that is, 
 the laterals for distribution within the boundaries covered 
 by the company. All of the land irrigated in the Imperial 
 Valley in California is now included in the Imperial Irrigation 
 District. 
 
 The mutual water company is a popular form of organi- 
 zation in all of the western states. Many of the original indi- 
 vidual or partnership ditches are now operated by mutual 
 companies. The Grand Valley Irrigation Company irrigating 
 a large area in the Grand Valley of Colorado, is a mutual com- 
 pany each share of stock entitling its owner to one-fourth 
 inch of water. With the exception of the Arizona Canal, 
 practically every large canal system in Salt River Valley, 
 Arizona, was owned and operated by a mutual water com- 
 pany now part of the Salt River project. 
 
 There is no fixed method of stating the amount of water 
 represented by a share of stock in a mutual company. Very 
 often one share of stock entitles its owner to sufficient water 
 for one acre of land. In a great number of cases one share 
 of stock represents a definite amount of water. In all cases, 
 however, each share of stock of a given company represents 
 the same amount of water for irrigation purposes, so that, if 
 there be a shortage, the supply is pro-rated in proportion to 
 the amount of stock held. 
 
 The constitution and by-laws of a number of the mutual 
 companies provide that the stock shall be appurtenant to the 
 land, and often that it shall be inseparable therefrom. In 
 many other mutual companies the stock is designated as 
 "floating" that is, it is not made appurtenant to a specified 
 tract and may be used on different parcels of land in different 
 years. Section 324 of the Civil Code of California, dealing 
 
114 ELEMENTS OP WESTERN WATER LAW 
 
 with the transfer of stock of corporations, was amended in 
 1907 by the addition of the following: 
 
 * * * provided, however, that any corporation organized for, 
 or engaged in the business of selling, distributing, supplying, or deliv- 
 ering water for irrigation purposes or for domestic use, may in its by- 
 laws provide that water shall only be so sold, distributed, supplied, or 
 delivered to owners of its capital stock, and that such stock shall be 
 appurtenant to certain lands when the same are described in the certi- 
 ficate issued therefor; and when such certificate shall be so issued, and 
 a certified copy of such by-law recorded in the office of the county 
 recorder in the county where such lands are situated, the shares of 
 stock so located on any land shall only be transferred with said lands, 
 and shall pass as an appurtenance thereto. 
 
 The Regulation of Commercial Enterprises 
 
 At an early date statutes were passed in a number of the 
 western states authorizing the county supervisors, or com- 
 missioners, to fix the rate at which commercial enterprises 
 should furnish water to irrigators such authority being now 
 vested in the railroad or public service commissions. In the 
 absence of such rate fixing the rates established by the water 
 company controlled. The state and federal courts in Califor- 
 nia have vacillated in their determination as to whether rates 
 agreed upon in formal water right contracts, executed prior 
 to the rate fixing by the county board, should be enforced after 
 lower rates had been fixed by such board. On March 2, 1897, 
 the California legislature amended the act providing for such 
 regulation by adding a new section expressly stating that 
 nothing in the original act shall be construed to "invalidate 
 any contract already made." The new section was interpreted 
 by the California Supreme Court in Stanislaus Water Com- 
 pany v. Bachman (152 Cal. 716), wherein it was held, "And 
 under the present statute the contract rights prevail in all 
 cases, the boards of supervisors being powerless to affect or 
 interfere with them." 
 
 In the more recent case of Leavitt v. Lassen Irrigation 
 Company (157 Cal. 82) decided December 24, 1909, the Su- 
 preme Court said: 
 
 The language of this court in Stanislaus Water Company v. 
 Bachman . . . must be construed in the light of the facts there 
 presented 
 
 If it be conceived that Section 552, Civil Code, is designed to 
 confer upon any particular consumer any special, permanent, and 
 preferential right above what is here stated, that effort being plainly 
 violative of the Constitution, would be held void. The same declara- 
 tion applies to the provisions of the act entitled . . . approved 
 March 12, 1889, and of the amendment of that act by the act approved 
 May 2, 1897. 
 
IRRIGATION ENTERPRISES 115 
 
 The Leavitt case deals with the prior and perpetual water 
 right reserved by the former owner (the plaintiff) in selling 
 his commercial enterprise to the company (defendant). It 
 should, therefore, be easily distinguished from the case of a 
 company selling all of its water rights upon the same basis. 
 It has, however, caused a great deal of confusion. 
 
 The cases on this point have been most interesting in 
 connection with the California Development Company, fur- 
 nishing water to the Imperial Valley. In Imperial Water 
 Company No. 5 v. Holabird (receiver of the California Devel- 
 opment Company) (197 Fed. 4), decided May 6, 1912, the 
 U. S. Circuit Court of Appeals holds that the water right 
 contract between the Development Company and the Mutual 
 Company is void on the grounds that the company is a public 
 service corporation and, therefore, obligated to furnish water 
 on tender of the annual rate. The opinion was based on the 
 assumption that the company is a public service corporation. 
 The Supreme Court of California, however, in Thayer v. Cali- 
 fornia Development Company (164 Cal. 117), decided Novem- 
 ber 8, 1912, holds that the company is not a public service 
 corporation as it has not sold water to any users except those 
 under contract with it. The Court, therefore, denies the right 
 of Thayer to receive water from the company without purchas- 
 ing and holding a water right. 
 
 According to the Thayer decision, the water right con- 
 tracts of commercial enterprises of the second group will be 
 upheld in all cases where the company has delivered water 
 only to those holding contracts. In order to place such com- 
 panies in the class of public utilities subject to the jurisdiction 
 of the California Railroad Commission, an act was passed in 
 1913 declaring all water companies public utilities except those 
 organized for the sole purpose of delivering water to their 
 stock holders at cost. This act makes all California irrigation 
 companies, except mutual companies, public utilities. 
 
 Although a number of companies considering themselves 
 strictly contract companies have been before the California 
 Supreme Court since the passage of the 1913 act, in each 
 instance it was shown that they had been operating as a public 
 utility and, therefore, did not come within the Thayer decision. 
 For instance, in Palermo Land and Water Company v. Rail- 
 road Commission (160 Pac. 228) there was a provision in the 
 contracts between the company and the purchasers of land 
 that the company would supply water at rates to be fixed by 
 law. The company had also previously applied to the Rail- 
 road Commission to have its rates for water established. 
 
116 ELEMENTS OF WESTERN WATER LAW 
 
 Either of these reasons, the Court held, was sufficient to make 
 the company a public utility. 
 
 Wherever a company can be shown to have operated as a 
 public utility, the rule is that contracts made by it, even 
 though valid when made, must be taken to have been entered 
 into in view of the continuing power of the state to control 
 the rates to be charged by public service corporations (Ray- 
 mond Lumber Company v. Raymond Light and Water Com- 
 pany, Washington, 159 Pac. 133). Although as shown in 
 the Raymond case, the Supreme Court of Washington does 
 not hesitate to abrogate water contracts, it has held in Pasco 
 Reclamation Company v. Rankert (131 Pac. 1143) that under 
 a contract between a land owner and an irrigation company 
 and later conveyance of water right to the land owner, he was 
 liable for a maintenance charge of $5.00 per acre per year 
 which he must pay whether water is used or not. The Wash- 
 ington Supreme Court also held in Fruitland Irrigation Com- 
 pany v. Thayer (160 Pac. 1048) that contracts for water rights 
 which expressly provide that the charge shall become a lien on 
 land in favor of an irrigation company are enforceable in cases 
 of default. 
 
 The Supreme Court of Nebraska in McCook Irrigation 
 and Water Power Company v. Burtless (152 NW. 334) laid 
 down a rule contrary to the above. The company petitioned 
 the Railway Commission to raise its annual charge from $1.00 
 per acre to $2.00 per acre. The company operates upon the 
 plan of the third type of irrigation enterprise explained 
 above its contracts providing that when water rights to the 
 capacity of the canal have been sold and paid for, the canal 
 becomes by certain acts of its officers, therein specified, the 
 property of the water right owners. The water rights, there- 
 fore, represent an interest in the canal system. The Supreme 
 Court held that such contracts were entered into subject to 
 the right of the state in the exercise of its police power to 
 regulate and fix reasonable rates to be charged for the use of 
 water, and upheld the decision of the Railway Commission in 
 raising the annual rate from $1.00 to $2.00 per acre per annum. 
 As the Supreme Court of Nebraska, on account of early state 
 legislation, has uniformly considered irrigation canals to be 
 in the same class as railroads and other common carriers, the 
 McCook case cannot be considered a precedent to be generally 
 followed elsewhere. 
 
 There are a number of instances in southern California 
 where a town has grown up within the boundaries of the terri- 
 tory served by a mutual water company. In some cases the 
 
IRRIGATION ENTERPRISES 117 
 
 water supply for municipal use within the town is secured 
 from the mutual water company through the ownership of 
 stock in such company by the town. An attempt has been 
 made in a few instances to have such mutual water company 
 declared a public utility, but the Supreme Court of California 
 in Escondido Mutual Water Company v. Escondido (169 Cal. 
 772) has held to the contrary. The following extract from the 
 opinion is in point: 
 
 A mutual water company, organized to distribute the water which 
 it controlled to its stockholders at cost and ratably in the proportion 
 which their shares of stock bore to the total issued stock of the com- 
 pany, is not charged with the public duty of supplying to a municipal 
 corporation that was one of its stockholders water in excess of the 
 proportionate amount to which it was entitled as a stockholder, on the 
 theory that the company having undertaken to furnish water for 
 municipal purposes, was obligated to continue to do so in accordance 
 with the needs of the municipality up to the capacity of the company's 
 ability to supply water, if the only water that the company ever volun- 
 tarily furnished the municipality was the proportionate share to which 
 it was entitled as such stockholders, and all excess of water which it 
 received was taken by it from the company by force and against the 
 company's protest. 
 
 There are a number of mutual water companies securing 
 water under contract from companies in public service. In 
 Limoniera Company v. Railroad Commission (162 Pac. 1033) 
 a mutual company, so supplied, argued that its contract with 
 the public service company could not be abrogated by the com- 
 mission. The California Supreme Court held that a mutual 
 water company taking water from a public service corporation 
 to be supplied to its stock holders and to be used on their 
 lands, occupies the same position as any other consumer under 
 the system, and the rental charges against it are accordingly 
 subject to regulation. "It is one of the 'public' that is being 
 served by a public utility." 
 
 Who Owns the Water Right 
 
 The expression "selling water" is so commonly used that 
 few laymen ever doubt that the irrigation company is the 
 owner of the water right and that, in selling its system or in 
 rate fixing, it is entitled to a considerable sum for such right. 
 It is surprising to most, therefore, to learn that the Supreme 
 Court of Colorado, so long ago as 1887, in Wheeler v. North- 
 ern Colorado Irrigation Company (17 Pac. 487) said: 
 
 It (the irrigation company) exists largely for the benefit of 
 others; being engaged in the business of transporting, for hire, water 
 owned by the public to the people owning the right to its use. 
 
118 ELEMENTS OF WESTERN WATER LAW 
 
 The question was not a direct issue in California until the 
 comparatively recent case of San Joaquin & Kings River Canal 
 and Irrigation Company v. Stanislaus County (191 Fed. 875), 
 decided September 18, 1911. The company had brought suit 
 against the county to enjoin the enforcement of water rates 
 fixed by the County Supervisors. One of its contentions was 
 that its water rights were worth $1,000,000, and that nothing 
 had been allowed for them in the Supervisors' valuation. After 
 a careful consideration of the authorities, Judge Morrow re- 
 fused to accept the contention in the following words : 
 
 The claim, as stated, is manifestly not sufficient to state a right 
 of diversion. It must appear, further, that the complainant is either 
 the owner of land for which the water is being appropriated for a 
 beneficial use, or that the water is being diverted for the purpose of 
 being carried by the complainant to consumers who own land for which 
 the water is being appropriated for a beneficial use, and that the water 
 is being so used. The complainant in this case is not the owner of 
 any land for which the water is being appropriated. The complain- 
 ant's right to divert the water of the river is therefore based 
 upon and is measured and limited by the beneficial use of certain 
 consumers for which the water is being appropriated. But, if the 
 amount required by these consumers for a beneficial use is not 1350 
 cubic feet of water per second, then complainant has no right to divert 
 that quantity of water; or if, for example, these consumers require 
 only 100 cubic feet per second for beneficial use, then that would be 
 the basis and measure and limit of complainant's right to divert water 
 from the river, and not the capacity of complainant's headworks, canals 
 and ditches used in making such diversion. The water right must, there- 
 fore, be the right of the consumer and attached to his land, and not 
 the right of the complainant attached to its canal system. 
 
 The above statement by Judge Morrow is of interest as 
 it reflects a principle of appropriation as laid down repeatedly 
 by the Supreme Courts of Arizona, Colorado and Nebraska. 
 On May 4, 1914, the Supreme Court of Nevada, in Prosole v. 
 Steamboat Canal Co. (140 Pac. 720), in accepting the view of 
 the Supreme Court of Arizona and of Colorado, refers to the 
 company as the "diverter" and to the consumer as the "con- 
 verter" or actual appropriator. 
 
 On April 27, 1914, just one week before the Prosole decis- 
 ion and too late to have been called to the attention of the 
 Nevada Supreme Court, the Supreme Court of the United 
 States decided San Joaquin and Kings River Canal and Irri- 
 gation Co. v. Stanislaus County (233 U. S. 454), on appeal 
 from the circuit court (Judge Morrow). In a very brief opin- 
 ion (less than two pages) in which the relation between the 
 company and the consumer in perfecting an appropriation is 
 
IRRIGATION ENTERPRISES 119 
 
 hardly discussed, the decree of the lower court is reversed. 
 An important part of the opinion is the following : 
 
 It well may be true that if the waters were taken for a superior 
 use by eminent domain those whose lands were irrigated would be 
 compensated for the loss. But even if the rate paid is not to be deter- 
 mined as upon a purchase of water from the plaintiff, still, at the 
 lowest, the plaintiff has the sole right to furnish this water, the owner 
 of the irrigated lands cannot get it except through the plaintiff's help, 
 and it would be unjust not to take that fact into account in fixing the 
 rates. We are not called upon to decide what the rate shall be, or 
 even the principle by which it shall be measured. 
 
 Although this decision of the United States Supreme 
 Court settles the question so far as California is concerned, 
 it does not necessarily hold for other jurisdictions and espe- 
 cially those in which the state supreme court has held to the 
 contrary. In Pioneer Irr. Co. v. Board of Commissioners of 
 Yuma County, Colo. (236 Fed. 790), the sole question to be 
 determined by the United States District Court of Colorado 
 was whether or not the Board should have considered the 
 value of the water in fixing the rates. The Court said : 
 
 I suppose the plaintiff was induced by San Joaquin, etc., Co. r. 
 Stanislaus County, 233 U. S. 454, 34 Sup. Ct. 652, 58 L. Ed. 1041, to 
 exhibit this bill. But I am not able to accept that case as a support 
 to the plaintiff's claim. The Constitution and statutes of California 
 empowered the carrying company in that case to appropriate water 
 for sale, and in the exercise of the right thus given it acquired 
 for that purpose some of the water by mere diversion from the natural 
 stream and purchased some of it. A carrying ditch in Colorado is not 
 given such power and cannot acquire such rights as a carrying ditch. 
 There is merit in the contention that our Constitution (Article XVI, 
 Sec. 8) and statutes (Rev. Stat. Col. 1908, Sees. 3263-3268) could be 
 given a like construction, but our Supreme Court has decided other- 
 wise. (Citing many Colorado cases.) 
 
 The Future of Commercial Enterprises 
 
 In the introduction to this chapter it is stated that most 
 of the early commercial irrigation enterprises were financial 
 failures. With but a few exceptions, commercial enterprises of 
 the first two groups are poor investments today. As previ- 
 ously pointed out, only enterprises of the third group those 
 selling an interest in the system when part of a land project 
 can be considered as having possibilities of success. It must 
 be emphasized that the lack of financial security is not due to 
 restrictive legislation or the lack thereof. It is due to the 
 nature of the business itself. Irrigated agriculture calls for 
 expenditures by the farmer in the preparation of his land not 
 known in humid sections. He must be carried for a much 
 longer period than purchasers of farming property in the non- 
 
120 ELEMENTS OF WESTERN WATER LAW 
 
 irrigated zone. When we realize, also, the difficulty in finding 
 purchasers of the land under a system, we can appreciate the 
 long period through which a system must be maintained and 
 operated by the holding company with little or no return. 
 
 Regarding the abrogation of water right contracts, as 
 illustrated by Nebraska case of the McCook Co., cited above, 
 the company is often assisted in securing increased mainte- 
 nance and operation rates by the public service commission. 
 This must be so, as the annual charge was generally fixed by 
 contract throughout the entire west at $1.00 per acre per 
 year which amount is entirely too low for the ordinary sys- 
 tem. 
 
 Many of the commercial enterprises have been purchased 
 and included in projects of the United States Reclamation 
 Service. Other large ones, like the California Development 
 Co., have been taken over by irrigation districts. It is certain 
 that the next irrigation census will show a marked decrease 
 in the proportion of any state's total irrigated acreage served 
 by such enterprises. 
 
 In contrast, is the growth of the mutual company. As 
 indicated, the commercial enterprises of the third group pass 
 automatically into mutual companies. The water users' asso- 
 ciations formed under Reclamation Service projects are mutual 
 companies which will ultimately operate the project. Similar 
 companies are formed in accordance with state legislation 
 under the Carey act projects. The mutual company is, there- 
 fore, destined to be the controlling type in the operation of 
 irrigation works. 
 
CHAPTER X 
 THE DESERT LAND ACT AND THE CAREY ACT 
 
 When the arid public lands were first occupied and 
 irrigated there was no act providing for their alienation other 
 than the homestead and pre-emption acts, both passed in 1862. 
 The first act to specially provide for the conditions of the irri- 
 gation states was the desert land act of March 3, 1877, which, 
 slightly amended, is still in force. The only public land and 
 irrigation states in which the act is not operative are Kansas, 
 Nebraska, and Oklahoma. 
 
 Only desert lands are subject to entry and it has been 
 held that the following lands are not desert: Lands which 
 produce native grasses sufficient to make an ordinary crop of 
 hay in usual seasons; lands which will, without irrigation, 
 produce a reasonably remunerative crop of any kind ; lands 
 bearing a natural growth of trees. 
 
 As entry may be made by any citizen, twenty-one years 
 of age, a woman married or single, is entitled to do so. Under 
 the original act, one section, or 640 acres, was the limit of 
 entry, but by the act of March 3, 1891, it was restricted to 320 
 acres. 
 
 To make entry an application must be filed at the local 
 land office, showing that applicant is a citizen, or has declared 
 his intention to become such ; that he is 21 years of age or 
 over; that he is a bona fide resident of the state in which the 
 land lies; that he has not previously made desert land entry 
 or taken an assignment of such ; that he has not since August 
 30, 1890, acquired title to nor is claiming under any of the 
 agricultural lands laws, including the lands applied for, lands 
 which in the aggregate exceed 320 acres ; and that he intends 
 to reclaim the lands described in the application through irri- 
 gation within four years. 
 
 The- act of March 3, 1891, provided for the assignment of 
 the entire entry, but the act of March 28, 1908, allows an 
 
122 ELEMENTS OF WESTERN WATER LAW 
 
 assignment in whole or in part except that not less than a 
 40-acre subdivision can be assigned. The latter act forbids the 
 assignment of an entry to a corporation or an association. 
 
 With the application a map must be filed showing the 
 proposed method of irrigating the land described, and a pay- 
 ment of 25 cents per acre must be made. Before the end of each 
 of the first three years after entry proof must be filed at the 
 local land office showing the expenditure of one dollar per acre 
 during the year. This "annual proof" must be sworn to and 
 must be corroborated by the affidavits of two reputable wit- 
 nesses. Expenditures for ditches, dams, fences, roads, the first 
 breaking of the soil, barns and other stock buildings, and wells 
 for irrigation purposes, will be allowed. Expenditures for 
 stock in an irrigation company to furnish water to land entered 
 will also be allowed. 
 
 The entryman, or his assignee, is allowed four years from 
 date of entry to satisfy the requirements of the act, but he may 
 make final proof and receive patent as soon as he has expended 
 three dollars per acre, has reclaimed all the irrigable land 
 included in his entry, and has cultivated one-eighth of the 
 entire area entered. When possible under the state laws, the 
 final proof must show an absolute water right for the irriga- 
 tion of the land entered. Up to ten years ago the Department 
 was very lax in passing upon final proofs, but under the pres- 
 ent regulations a rigid examination is made of the water right 
 and the extent of irrigation and cultivation. At the time of 
 making final proof a payment of one dollar per acre must be 
 made. Under an act of March 28, 1908, the four-year period 
 may be extended for an additional period not exceeding three 
 years at the discretion of the Land Office. 
 
 As there is no residence requirement in the desert land act 
 other than to reside in the state and as payment for the land 
 itself is only $1.25 per acre, the act has been very popular. 
 In the past many irrigation companies secured large areas of 
 public land by stipulating with entrymen to furnish water 
 right and take in return one-half or more of the land entered. 
 Such contracts were illegal and under the present vigilance 
 are not tolerated. It is allowable, however, in contracting 
 with an irrigation company for a water right for a desert entry 
 to stipulate that on default of the specified cash payment the 
 entryman shall deed to the company a portion, or all, of the 
 land entered. It is evident that the permissible contract may 
 result in the same end as the prohibited contract, but on its 
 face at least, it is not an agreement to convey. 
 
DESERT LAND AND CAREY ACTS 123 
 
 The Carey Act 
 
 In the last chapter reference was made to the many 
 failures of private irrigation companies organized to irrigate 
 public land the principal cause for which being the inability 
 of the company to restrain "sooners" or mere speculators from 
 entering the land, and to secure a sufficient lien, upon such 
 land as subscribed for water rights, for non-payment of annual 
 charges. To relieve this situation Congress in 1894 passed the 
 so-called "Carey Act" named after Senator Carey of Wyo- 
 ming, who introduced it. 
 
 The act authorized the Secretary of the Interior, with the 
 approval of the President, to contract with each state having 
 desert lands for the free grant to the state of not exceeding 
 one million acres of such lands "as the state may cause to be 
 irrigated, reclaimed, occupied, and not less than twenty acres 
 of each one hundred and sixty-acre tract cultivated by actual 
 settlers, within ten years after the passage of this act." Before 
 any segregation of land was allowed, the state had to file a map 
 of the land and the plan proposed for its irrigation. As satis- 
 factory proof, according to the regulations of the Secretary of 
 the Interior, was made by the state "that any of said lands 
 are irrigated, reclaimed, and occupied by actual settlers, pat- 
 ents shall be issued to the state or its assigns for said lands 
 so reclaimed and settled : Provided, That said states shall not 
 sell or dispose of more than one hundred and sixty acres of 
 said lands to any one person." 
 
 The original act was a great step in advance in that it 
 allowed the segregation of all the public lands under an irriga- 
 tion project and thus precluded the earlier type of speculator, 
 but it failed to provide for a lien in case of non-payment of 
 water right charges. The act of June 11, 1896, met this need 
 by authorizing liens to be created by the state for the actual 
 cost of reclamation and reasonable interest, and by providing 
 that patents shall issue to the state, without regard to settle- 
 ment or cultivation, as soon as a proper irrigation system and 
 ample water supply are furnished. It is specifically provided 
 in this amendatory act that the United States shall in no way 
 be liable for such lien, or any part thereof. 
 
 As stated above, the original act provided that the lands 
 segregated must be reclaimed as specified within ten years 
 after the passage of the act. No change was made in this 
 severe requirement until the act of March 3, 1901, which pro- 
 vided that the ten years' period "shall begin to run from the 
 date of approval by the Secretary of the Interior of the state's 
 application for the segregation of such lands." It further 
 
124 ELEMENTS OF WESTERN WATER LAW 
 
 authorizes the Secretary of the Interior in his discretion to 
 grant an extension not exceeding five years. 
 
 The original act applied only to states. The act of Feb- 
 ruary 18, 1909, extended the provisions of the act to the terri- 
 tories of Arizona and New Mexico. The act of March 15, 
 1910, authorized the Secretary of the Interior to temporarily 
 withdraw from entry areas embracing lands for which a state 
 proposes to make application, pending the investigation and 
 survey preliminary to the filing of the regular application for 
 the segregation. 
 
 The Secretary of the Interior has prepared regulations 
 which must be followed by the states in making Carey act 
 segregations. No segregation is now approved until examined 
 on the ground and reported favorably by a government engi- 
 neer. This course has been criticized by some as reflecting 
 upon the states, but as the government is the owner of the 
 land it should not be asked to grant such until all the condi- 
 tions precedent thereto have been fulfilled to the satisfaction 
 of its representatives. The following statement from the 
 annual report of the Commissioner of the General Land Office 
 for 1911 is in point: 
 
 The importance of this (the examination of projects) can not be 
 overstated, for not only will the lands remain segregated for a long 
 period of time, if the order therefor is once made, but in making such 
 segregation the department is practically committed to the feasibility 
 of the proposition submitted by the state, and people thereafter dealing 
 with the state are in a great degree entitled to regard the proposition 
 of the state as having received the endorsement of the Department. 
 
 State Legislation 
 
 The provisions of the Carey act have been accepted by 
 Arizona, California, Colorado, Idaho, Montana, Nevada, New 
 Mexico, Oregon, South Dakota, Utah, Washington and Wyo- 
 ming. Idaho and Wyoming were especially active in prepar- 
 ing for development under the Carey act. There was close 
 co-operation between the officials of the two states and their 
 original legislation in this regard was practically the same, 
 and, as amended from time to time, has served as a model for 
 the other states. 
 
 Under the special state legislation, the operation of the 
 Carey act as far as the state is concerned is entrusted to a 
 board. The irrigation project is not constructed by the state, 
 but by an individual, association or company contracting with 
 the state through the board. To initiate the enterprise, the 
 contractor files with the board a request for the withdrawal or 
 segregation of the desired tract of desert public land and a 
 
DESERT LAND AND CAREY ACTS 125 
 
 proposal to construct the irrigation system, stating the source 
 of water supply, the location and dimensions of the proposed 
 works, the estimated cost of construction, and the price and 
 terms at which perpetual water rights will be sold. The 
 request must be accompanied by a certificate of the state engi- 
 neer showing that the contractor has made proper application 
 to appropriate the necessary water. A certified check of speci- 
 fied amount must be deposited with the board as a guarantee 
 that the contractor will execute a contract with the state in 
 case the segregation is made. 
 
 The state engineer is required to report on the feasibility 
 of the scheme, and if his report be favorable the board applies 
 to the Secretary of the Interior for the segregation of the 
 desired tract. If granted, the board and the contractor execute 
 an agreement which includes complete plans and specifications 
 regarding the execution of the proposed work, and specifies 
 the price, terms, and conditions under which water rights 
 (carrying a proportional part of the system) will be sold to 
 settlers. The contractor must furnish a bond, of amount pre- 
 scribed by statute or regulation of board, as a guaranty of 
 faithful performance of contract. 
 
 As soon as the segregation has been made and work 
 initiated by the contractor on a proper basis, the board must 
 publish notice stating that the lands segregated are open for 
 settlement and the price which must be paid to the state for 
 the land and to the contractor for the water right. Any one 
 intending to settle within the project must first execute a 
 water right contract with the contractor for the tract upon 
 which he intends to file. He then applies to the board for the 
 tract, and if successful secures a certificate of location on pay- 
 ment of one-half the price of the land fixed by the state. He 
 must establish his residence on the tract within six months 
 after water is ready for delivery and must cultivate at least 
 one-sixteenth of the land entered during the first year and at 
 least one-eighth during the second year. He must make final 
 proof within three years and complete his payment to the state. 
 The latter payment is generally only fifty cents twenty-five 
 cents to be paid on entry and twenty-five cents on final proof. 
 The statutes provide for the control of the system being given 
 to the water users thereunder, but the condition precedent 
 thereto varies greatly. Idaho gives control when 35 per cent 
 of the total lien has been satisfied, while South Dakota leaves 
 the control with the contractor until 90 per cent of the land 
 has been sold. In Oregon the system must be turned over to 
 the settlers within ten years. 
 
126 
 
 ELEMENTS OF WESTERN WATER LAW 
 
 Development under the Carey Act 
 
 The report of the Commissioner of the General Land 
 Office for the year ending June 30, 1916, gives the following 
 statistics in regard to the Carey Act. 
 
 State. 
 
 Area 
 
 segregated 
 acres. 
 
 Arizona 
 
 Colorado 284,564 
 
 Idaho 1,306,843 
 
 Montana 228,974 
 
 Nevada 36,809 
 New Mexico 7,565 
 
 Oregon 357,879 
 
 Utah 141,815 
 
 Wyoming 1,343,829 
 
 Total 3,708,367 
 
 Area 
 
 patented to 
 states, acres. 
 
 516,086 
 30,684 
 
 62,718 
 151,968 
 761,455 
 
 Area for which Area temporarily 
 time to reclaim withdrawn 
 
 extended for investigation 
 acres. under the act of 1910. 
 
 54,116 
 62,585 
 
 98,746 
 210,758 
 426,205 
 
 32,630 
 
 106,021 
 
 19,107 
 
 30,400 
 
 75,498 
 
 62,637 
 
 1,781 
 
 328,075 
 
 In addition, 3,302,662 acres for which applications had 
 been made had been rejected or relinquished. The area pat- 
 ented to the states was 4,244 acres in 1914, 146,079 acres in 
 1915, 160,741 acres in 1916. 
 
 Under the amendment of 1910, permitting temporary 
 withdrawals of land during its investigation, to June 30, 1916, 
 4,846,355 acres had been applied for, 2,285,702 had been 
 rejected before withdrawals, 2,490,430 acres withdrawn, 
 2,162,355 acres restored, and 328,075 acres remained with- 
 drawn. 
 
 Colorado 
 
 Only one project, covering 20,000 acres, has been com- 
 pleted and is in use. Of the others for which segregations 
 were made, some have been allowed to lapse or have been can- 
 celled, those remaining have made little prograss in actual 
 construction during the last two years. 
 
 Idaho 
 
 The thirty projects in Idaho, listed in the 1916 report of 
 the State Land Department, had a total area of 1,863,000 acres, 
 of which 747,000 acres had been sold and 124,000 acres were 
 open to entry. The total final cost of these systems was esti- 
 mated as $54,000,000, of which $24,000,000 was reported as 
 having been spent. The cost per acre of water rights varied 
 generally from $25 to $65. Over one-half of these areas are 
 located in the vicinity of Twin Falls. 
 
DESERT LAND AND CAREY ACTS 127 
 
 Montana 
 
 In 1916 there were 173,000 acres in projects under way. 
 The state had approved sales for 50,000 acres, the United 
 States had issued patents to the state for 21,000 acres of this 
 and the state had actually issued patents to settlers for 11,000 
 acres. Of the six active projects, three were completed and 
 supplying land. 
 
 Nevada 
 
 During 1915-16, temporary withdrawals were allowed for 
 three small projects. Although 37,000 acres had been segre- 
 gated, no land had been patented to the state to June 30, 1916. 
 
 Oregon 
 
 In 1916, five Carey Act projects covering about 200,000 
 acres of irrigable land were under construction. One of these, 
 the Tumalo project, was taken over and completed by the 
 state at an expenditure of $450,000. About 22,000 acres of the 
 Carey Act and private lands are included. Of the Carey Act 
 lands in the Tumalo project about 7,500 acres have been listed 
 for patent and 2,400 acres actually deeded. About 6,000 acres 
 were irrigated in 1916. 
 
 Utah 
 
 In November, 1916, there were 27,000 acres of Carey Act 
 entries in force. This is all within one project. The state had 
 issued patent lists covering 26,000 acres which had not been 
 approved by the General Land Office. On other proposed 
 projects little progress had been made. 
 
 Wyoming 
 
 To December, 1916, 137,000 acres had been covered by 
 settlers' filings and patents had been issued to settlers for 
 104,000 acres. Segregations had been made for 46 systems, 
 patents to settlers had been issued under eighteen projects. 
 The authorized maximum selling price of water rights varied 
 from $30 to $50 in most of these systems. The period since 
 1911 has been mainly one of reorganization and readjustment 
 of conditions, particularly financial, in projects previously 
 undertaken, rather than one of new systems. The projects on 
 which lands have been patented have an average size of about 
 10,000 acres each, the largest area patented to the state in any 
 one project being about 20,000 acres. 
 
CHAPTER XI 
 THE RECLAMATION ACT 
 
 In the case of United States v. Hanson (167 Fed. 881), 
 the United States Circuit Court of Appeals thus expressed 
 itself regarding the need for the Reclamation act: 
 
 Congress passed the Reclamation act to make marketable and 
 habitable large areas of desert land within the public domain, which 
 lands are valueless and uninhabitable unless reclaimed by irrigation 
 and the irrigation whereof is impracticable except upon expenditure 
 of large sums of money in the construction of a system of reservoirs 
 and distributing canals. All previous efforts of the government to 
 make these arid lands available for settlement had resulted in failure. 
 By the Desert Land act of March 3, 1875, Congress has made provision 
 for their use by individual settlers, and on March 3, 1877, had enacted 
 further legislation to facilitate the reclamation of such lands by private 
 entrymen, and in 1894, to provide for the irrigation of the arid public 
 lands, had passed the Carey act, by which it proposed to donate to the 
 states in which such lands were located, so much thereof, not exceed- 
 ing one million acres in each state, as the state would cause to be 
 reclaimed. These efforts having failed to accomplish the desired end, 
 the Reclamation act was passed. 
 
 Although the above statement may be considered entirely 
 too strong by many who have watched the development under 
 the Carey act, it is certain that the many western societies 
 interested in irrigation labored for years to secure the passage 
 of some act under which the nation itself would do the actual 
 construction work in connection with storage and diversion 
 projects. After many unsuccessful attempts, the Reclamation 
 act was finally passed on June 17, 1902. 
 
 The Reclamation Act of June 17, 1902 
 
 The act creates a fund known as the "Reclamation Fund" 
 from the moneys received from the sale of public lands in the 
 following western states: Arizona, California, Colorado, 
 Idado, Kansas, Montana, Nebraska, Nevada, New Mexico, 
 North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
 
 128 
 
THE RECLAMATION ACT 129 
 
 Washington, and Wyoming. As the public lands in Texas 
 belong to the state, the original act did not include Texas, but 
 its provisions were later extended to Texas by special congres- 
 sional and state legislation. In 1910, Congress authorized a 
 special bond issue of $20,000,000, to be used exclusively for the 
 completion of projects then initiated. 
 
 The Secretary of the Interior is authorized to do the many 
 things provided for in the act. In connection with the devel- 
 opment of any project he must withdraw from public entry 
 the lands required for the irrigation works, and also must with- 
 draw from all entry, except under the Homestead laws, the 
 lands deemed irrigable under the proposed project. If later 
 the project is held to be not feasible, the lands so withdrawn 
 are to be restored to entry. The two withdrawals mentioned 
 above were originally called first form withdrawal and second 
 form withdrawal. As the irrigable lands could be entered 
 under the Homestead act, although subject to all the limita- 
 tions and conditions of the Reclamation act, they were settled 
 upon in many cases just as soon as it was known that a Re- 
 clamation project was proposed. As the project had not been 
 sufficiently developed for the Land Office to know what lands 
 would be irrigated, much land was occupied above the canal 
 lines. Furthermore, as the project was slowly developed and 
 as the settlers had few means of making a livelihood, there 
 was much dissatisfaction. This difficulty was removed in the 
 later projects by the Secretary of the Interior withdrawing all 
 lands under the first form. There was some question as to the 
 legal power of the Secretary to withdraw irrigable lands under 
 the first form and the doubt was removed by a congressional 
 act in 1910. By an amendatory act approved February 18, 
 1911, it is provided that no entry shall be made and no entry- 
 man shall be permitted to go upon lands reserved for irrigation 
 purposes until the Secretary of the Interior has established the 
 unit of acreage, fixed the water right charges and the date 
 when water will be delivered. 
 
 As soon as a project is found practicable and contracts 
 have been let, the act provides that the Secretary "shall give 
 public notice of the lands irrigable under such project, and 
 limit of area per entry, which limit shall represent the acreage 
 which, i-n the opinion of the Secretary, may be reasonably 
 required for the support of a family upon the lands in ques- 
 tion; also the charges which shall be made per acre upon the 
 said entry, and upon the lands in private ownership which may 
 be irrigated by the waters of said irrigation project, and the 
 number of annual installments, not exceeding ten, in which 
 
130 ELEMENTS OF WESTERN WATER LAW 
 
 such charges shall be paid and the time at which such pay- 
 ments shall commence." The charges announced by the Sec- 
 retary in the public notice are determined with a view of 
 returning to the fund the cost of the project and in practice 
 are apportioned equally throughout the project. (See Reclam- 
 ation Extension Act.) 
 
 The public lands subject to entry can be entered only 
 under the provisions of the Homestead act in tracts of not less 
 than ten nor more than one hundred and sixty acres. The 
 entry is subject to the limitations and conditions of the Rec- 
 lamation act and the commutation provisions of the Home- 
 stead act do not apply. The original act placed the minimum 
 area at forty acres. Before receiving patent the entryman 
 must reclaim at least one-half of the total irrigable area of his 
 entry and must pay the charges apportioned against the land 
 entered. (Requirements changed by act of August 9, 1912, 
 and act of August 13, 1914.) 
 
 Although private lands may be included within the pro- 
 ject, no water right for such lands can be sold for a tract ex- 
 ceeding 160 acres to any one landowner, "and no such sale 
 shall be made to any landowner unless he be an actual bona 
 fide resident on such land or occupant thereof residing in the 
 neighborhood of said land, and no such right shall perma- 
 nently attach until all payments therefor are made." The 
 Secretary has fixed a limit of residence in the neighborhood 
 at a maximum of fifty miles. This limit of distance may be 
 varied, depending upon local conditions. After water-right 
 application has been made and accepted (which constitutes 
 a water-right contract), the applicant is not required to con- 
 tinue his residence on the land or in the neighborhood. It was 
 formerly held that a corporation was entitled to hold land 
 under a government project, but, as a condition precedent 
 thereto, a showing had to be made that the aggregate area held 
 by the corporation and its stockholders in their individual 
 capacities did not exceed one hundred and sixty acres. By 
 departmental order of July 11, 1913, the policy was changed 
 and no application for a water right by a corporation will now 
 be accepted. 
 
 The Secretary is authorized to use the Reclamation Fund 
 for the operation and maintenance of reservoirs and irrigation 
 works. When the payments required by the act are made 
 for the major portion of the lands irrigated, the management 
 and operation of the irrigation works is to pass to the land- 
 owners thereunder to be maintained at their expense under 
 some form of organization acceptable to the Secretary; but 
 
THE RECLAMATION ACT 131 
 
 "the title to and the management and operation of the reser- 
 voirs and the work necessary for their protection and opera- 
 tion shall remain in the Government until otherwise provided 
 by Congress." It is noteworthy that the act does not specify 
 that the title to the irrigation works shall pass to the land- 
 owners. The only inference, therefore, is that the title to the 
 works, as well as reservoirs, is to remain in the Government. 
 
 As in a number of other congressional acts, it is expressly 
 .stated in this act that it shall not be construed as interfering 
 with state or territorial laws regarding the appropriation, use 
 or distribution of water used in irrigation, or as in any way 
 affecting any right to the waters of an interstate stream. The 
 Secretary is directed to proceed in conformity with the local 
 laws. 
 
 The doctrine of appurtenancy is included in the following 
 language : 
 
 Provided, That the right to the use of water acquired under the 
 provisions of this act shall be appurtenant to the land irrigated, and 
 beneficial use shall be the basis, the measure, and the limit of the 
 right. 
 
 The original act provided that within each ten-year period 
 the major portion of the funds arising from the sale of public 
 lands within any state or territory should be expended within 
 the limits thereof. The section so providing was repealed by 
 Congress in 1910, so that the Secretary is now at liberty to 
 expend moneys on feasible projects regardless of the geo- 
 graphical source of such. 
 
 As stated above, the operations under the Reclamation 
 act are under the Secretary of the Interior. Prior to the pas- 
 sage of the act in 1902, the Hydrographic Division of the 
 Geological Survey had been making surveys of reservoir sites 
 and proposed canals in many of the western states. After the 
 passage, this Division became the Reclamation Service under 
 the supervision of the Director of the Geological Survey. 
 In 1906, the Service was made a separate bureau of equal 
 standing with the Geological Survey and with its own director. 
 
 One of the first projects undertaken was the Salt River 
 project made up of lands about Phoenix, in Arizona. As prac- 
 tically all the lands included were in private ownership, the 
 question immediately arose as to what lien should be given the 
 government to induce it to build the project. The lien in the 
 case of public land is assured, as the title can not pass until 
 all the water right payments have been made. To satisfy the 
 requirement in regard to the private lands, the first so-called 
 Water Users' Association was formed. The shareholders of 
 
132 ELEMENTS OF WESTERN WATER LAW 
 
 this association, which is regularly incorporated, are the land- 
 owners under the project. The capital stock is fixed at the 
 estimated cost of the project and each acre is entitled to one 
 share of stock. The association enters into a contract with 
 the Secretary of the Interior pledging itself to repay the cost 
 of construction. Each shareholder in executing his stock sub- 
 scription agrees that the payments due upon his stock shall 
 be a lien upon his land and shares, and that the lien may be 
 enforced by the association by foreclosure in the manner pro- 
 vided by law for the foreclosure of mortgages. The land is 
 thus bound to the association and the association to the Sec- 
 retary. Although not necessary so far as the lien is concerned, 
 the practice has been to compel entrymen on the public lands 
 to become stockholders in the association. The association 
 levies assessments on the shares of stock from year to year 
 to pay the installments. 
 Act of August 9, 1912 
 
 The Act of August 9, 1912, provides that one making a 
 homestead entry within a project may secure a patent after 
 submitting satisfactory proof showing compliance with the 
 provisions of law as to residence, reclamation and cultivation. 
 It likewise provides that a holder of water-right certificate 
 on a project shall be entitled to final water-right certificate 
 upon proof of cultivation and reclamation. No such patent 
 ,or certificate shall issue until all sums due the United States, 
 on account of such land or water right, at the time of issuance 
 of patent or certificate have been paid. Every patent or water- 
 right certificate shall reserve to the United States a prior lien 
 on the land for the payment of all sums due or to become due 
 to the United States. 
 
 Another important provision of this act is that the Secre- 
 tary of the Interior is authorized to designate a fiscal agent or 
 officer of the Reclamation Service to whom shall be paid the 
 sums due on reclamation entries or water rights. Before the 
 passage of this act it was necessary to make such payments 
 to the land office of the district in which the project was sit- 
 uated. As such office is generally located at some point dis- 
 tant from the project, the requirement necessitated much 
 trouble which is now obviated. 
 Reclamation Extension Act of August 13, 1914 
 
 The Reclamation Extension act is by far the most impor- 
 tant of the amendments to the Reclamation act. Section one 
 provides that any person making entry or water-right appli- 
 cation after the passage of the act shall pay five per cent of 
 the construction charge as an initial installment, and shall pay 
 
THE RECLAMATION ACT 133 
 
 the balance in fifteen annual installments, the first five of 
 which shall each be five per cent of the construction charge 
 and the remainder shall each be seven per cent. The first of 
 the annual installments shall be due on December first of the 
 fifth calendar year after the initial installment. Section two 
 provides that any person whose land or entry has previously 
 become subject to the Reclamation act shall pay the construc- 
 tion charge, or the portion thereof remaining unpaid, in twenty 
 annual installments. The first four of such installments shall 
 each be two per cent, the next two installments each four per 
 cent, and the next fourteen installments each six per cent. 
 
 Section five deals with the operation and maintenance 
 charge which must be paid in addition to the installment of 
 the construction charge. Such charge shall be made for each 
 acre-foot of water delivered ; but each acre of irrigable land, 
 whether irrigated or not, shall be charged with a minimum 
 operation and maintenance charge based upon the charge for 
 delivery of not less than one acre-foot of water. The Secretary 
 is authorized, in his discretion, to transfer "the care, operation, 
 and maintenance of all or any part of the project works" to a 
 water users' association or irrigation district, under the pro- 
 ject, upon request of such association or district. On Novem- 
 ber 1, 1917, the operation and maintenance of the Salt River 
 project, Arizona, was turned over to the Salt River Water 
 Users' Association. It is now estimated that the returns 
 from the leasing of power on that project will be sufficient to 
 pay the construction installments. Early in 1917, the Mini- 
 doka Irrigation District took over the operation and mainte- 
 nance of the North Side Minidoka project. 
 
 By the provisions of section seven, the Secretary is 
 authorized to appoint the water users' association or irrigation 
 district, under any project, as the fiscal agent of the United 
 States to collect the annual payments on the construction 
 charge and the annual charges for operation and maintenance. 
 
 Section eight authorizes the Secretary to make general 
 rules and regulations governing the use of water within a 
 project. He may require the cultivation and reclamation of 
 one-fourth the irrigable area under each water-right applica- 
 tion or entry within three full seasons after filing application 
 or entry, and the cultivation and reclamation of one-half said 
 area within five full seasons. 
 
 Section nine provides that where application for water 
 right for lands in private ownership or lands under entries 
 not subject to the Reclamation act shall not be made within 
 one year after passage of this act or in cases where public 
 
134 ELEMENTS OF WESTERN WATER LAW 
 
 notice has not been issued, within one year of issuance 
 thereof , the construction charges for such land shall be 
 increased five per cent per year until such application is made. 
 
 Section twelve provides that before any contract is let or 
 any construction work begun on any project adopted after the 
 passage of the act, the Secretary shall require the owners of 
 private land thereunder to agree to dispose of all lands in 
 excess of the farm unit, upon such terms and at not to exceed 
 such price as the Secretary may designate. In case of refusal 
 by a landowner to agree to such requirements, his land shall 
 not be included within the project. As previously stated, the 
 water users' association was the means of "tying" land in 
 private ownership to the project. Each landowner subscribed 
 for stock in the association for all of his land within the 
 project. If he had over 160 acres, he executed an "excess 
 lands" contract authorizing the association to sell the excess 
 at public auction if he had not disposed of it to persons quali- 
 fied to hold under the act by the time water was ready for 
 delivery on the project. By the terms of section twelve, the 
 landowner contracts directly with the Secretary and, further, 
 binds himself to maximum price and terms of sale. 
 
 Section sixteen provides that after July 1, 1915, "expendi- 
 tures shall not be made for carrying out the purposes of the 
 reclamation law except out of appropriations made annually 
 by Congress therefor" such appropriations to be paid out of 
 the reclamation fund. Prior to the passage of the act, the 
 Secretary had full power to make allotments regarding expen- 
 ditures for projects. 
 
 Judicial Construction of Reclamation Act 
 
 As was to be expected where the operations are of such 
 magnitude and cover so much territory, the constitutionality 
 of the Reclamation act was early attacked, but thus far it has 
 been upheld (United States v. Hanson, 167 Fed. 881 ; Burley v. 
 United States, 179 Fed. 1). In a former chapter, the Kansas v. 
 Colorado case was discussed, and it was stated that many at 
 first supposed that the Reclamation act was therein declared 
 unconstitutional. The point made by the Court, however, 
 was that congress could not override state legislation in regard 
 to the reclamation of arid lands, and the Supreme Court went 
 on to show that the Reclamation act not only did not do so, 
 but specifically provided for the observance of local law. In 
 the paragraph of the decision showing the power of the gov- 
 ernment to reclaim lands, emphasis is laid upon the reclama- 
 tion of lands within the territories and upon the reclamation 
 of public lands within the states. In the two cases cited 
 
THE RECLAMATION ACT 135 
 
 above as upholding the constitutionality of the Reclamation 
 act, the question of the power of the Reclamation Service to 
 build projects for the irrigation of private lands only, within 
 a state, was not raised. In the second of the two cases (Burley 
 v. United States, 179 Fed. 1) the Court said: 
 
 It would be strange if the national government could enter the 
 territory of a state where there were no public lands of the United 
 States requiring irrigation and no public lands through which water 
 flows necessary for the irrigation of arid lands, and by legislation pro- 
 vide a system of irrigation for the private lands within the state and 
 control its administration. It would, indeed, be a strange proceeding, 
 and obviously wholly outside of the authority of Congress. 
 
 But in this case the United States is the owner of large tracts of 
 land within the states named in the act of June 17, 1902. The public 
 welfare requires that these lands, as well as those held in private 
 ownership, should be reclaimed and made productive. To do this 
 effectively and economically with the available water supply large 
 tracts must be brought into relation with a single system or project. 
 These states having arid lands have accordingly acted upon the 
 subject. 
 
 Section four of the original Reclamation act, regarding 
 the charges to be paid, contained the following: "The said 
 charges shall be determined with a view of returning to the 
 reclamation fund the estimated cost of construction of the 
 project. * * *." It was accordingly argued that the act did 
 not contemplate the payment of an operation and maintenance 
 charge by the water user that such charge was to be borne 
 by the government without reimbursement. The direct ques- 
 tion was presented in Swigart v. Baker (229 U. S. 187), and 
 the United States Supreme Court therein held that the opera- 
 tion and maintenance charge was a necessary part of the 
 construction charge and must be paid by the water user. 
 
 Development Under the Reclamation Act 
 
 The net investment in the twenty-seven projects under 
 the Reclamation act to June 30, 1916, was $100,999,960. The 
 total allotment from both the reclamation fund and the 
 $20,000,000 bond issue for the twenty-seven projects to June 
 30, 1916, was $124,255,130. Of this total amount, $14,042,000 
 was allotted to the Salt River project, Arizona, $13,445,643 to 
 the Boise project, Idaho, $10,464,535 to the Yakima project, 
 Washington, and $9,363,815 to the Yuma project, Arizona and 
 California. 
 
 The charges against the lands under the project are 
 divided into "construction charges" and "operation and main- 
 tenance charges." The aggregate return for the "construction 
 charges" to June 30, 1916, was $4,146,630, and for the "opera- 
 
136 ELEMENTS OF WESTERN WATER LAW 
 
 tion and maintenance charges," $2,448,095. A number of pro- 
 jects have not yet been completed and water has been distrib- 
 uted by the part of the system in operation under temporary 
 water rental contracts. The total of such rentals to June 30, 
 1916, was $3,330,320. 
 
 The area of land to which water could be supplied by the 
 projects on June 30, 1916, was 1,680,756 acres, and the total 
 area under the projects was 3,115,624 acres. The project crop 
 reports for 1915 cover 1,330,222 acres of irrigable land, of 
 which 814,906 acres were irrigated and 757,613 acres were 
 cropped. The total value of crops (1915) was $18,164,452. Of 
 this total amount the value of crops on the Salt River project, 
 Arizona, was $3,661,769; on the Sunnyside unit of the Yakima 
 project, Washington, $2,750,326; on the Minidoka project, 
 Idaho, $1,725,515; on the Boise project, Idaho, $1,526,873; 
 on the North Platte project, Nebraska and Wyoming, $1,263,- 
 617; on the Rio Grande project, New Mexico and Texas, 
 $1,103,389; and on the Uncompahgre project, Co'orado, 
 $1,044,915. 
 
 As indicated by the above statement of moneys expended 
 and areas covered, the physical works comprising the project 
 are likewise of great magnitude. In canal construction to 
 June 30, 1916, the Service had completed 382 miles of over 
 800 second-feet capacity, 664 miles of from 300 to 800 second- 
 feet capacity, 1,580 miles of from 50 to 300 second-feet capac- 
 ity, and 6,891 miles of less than 50 second-feet capacity. 
 Storage reservoirs have been built as part of most of the pro- 
 jects and many of them for both capacity of reservoir and 
 height of dam are noteworthy. The Roosevelt reservoir of 
 the Salt River project, Arizona, has a capacity of 1,367,300 
 acre feet, and a dam 280 feet high ; the Arrowrock reservoir 
 of the Boise project, Idaho, a capacity of 250,000 acre feet and 
 a dam 351 feet high; the Pathfinder reservoir of the North 
 Platte project, Nebraska and Wyoming, a capacity of 1,100,000 
 acre feet and a dam 218 feet high ; the Lahontan reservoir of 
 the Truckee-Carson project, Nevada, a capacity of 290,000 acre 
 feet and a dam 129 feet high ; the Elephant Butte reservoir of 
 the Rio Grande project, New Mexico and Texas, a capacity of 
 3,000,000 acre feet and a dam 300 feet high ; and the Shoshone 
 reservoir of the Shoshone project, Wyoming, 456,000 acre feet 
 capacity and a dam 240 feet high. 
 
 The projects should be as interesting to the student of 
 water right problems as they are to the engineer. Among 
 those projects which are interstate in their operations are the 
 Yuma project, diverting water from the Colorado in California 
 
THE RECLAMATION ACT 137 
 
 for the irrigation of lands in California and Arizona (the 
 water being syphoned under the river from California to 
 Arizona) ; the Lower Yellowstone project, diverting water 
 from the Yellowstone River in Montana for the irrigation of 
 lands in Montana and North Dakota; the North Platte pro- 
 ject, diverting water from the North Platte River in Wyoming 
 for the irrigation of lands in Wyoming and Nebraska; and 
 the Rio Grande project, diverting water from the Rio Grande 
 for the irrigation of lands in New Mexico and Texas. Lake 
 Tahoe, at the head of the Truckee River in California, is one 
 of the reservoirs of the Truckee-Carson project in Nevada; 
 and Jackson Lake, at the head of the Snake River in Wyo- 
 ming, is the reservoir for the Minidoka project and Carey act 
 projects on the Snake River in Idaho. Illustrations of direct 
 diversions from one stream basin to another are the Truckee- 
 Carson canal, diverting the waters of the Truckee River for 
 storage in the Lahontan reservoir in the Carson River, and 
 the Uncompahgre tunnel, diverting the waters of the Gunni- 
 son River to the Uncompahgre River. 
 
 Although the results accomplished in construction work 
 and acreage brought under intensive cultivation are most com- 
 mendable, the incorporation of many separate and conflicting 
 systems in a single project should be considered among the 
 greatest attainments in operating under the Reclamation act. 
 By the purchase of the Arizona Canal and a number of mutual 
 canal systems in the Salt River valley, the entire valley has 
 been brought under the Salt River project. Previous to the 
 organization of the Orland project, California, the Stoney 
 Creek Irrigation Co. and the Lemon Home Canal Co. were in 
 litigation over water rights on Stoney Creek. The two canals 
 were purchased as part of the distribution system of the Or- 
 land project. The Uncompahgre Valley was brought into one 
 project by the purchase of the Montrose and Delta Canal, the 
 Loutzenhizer Canal, the Selig Canal and the Garnet Canal. 
 In the Boise project, not only were the New York Canal and 
 the Idaho-Iowa Canal purchased, but two irrigation districts 
 and a number of mutual and private ditches were absorbed by 
 the project. On the Truckee-Carson project a number of indi- 
 vidual and partnership ditches were taken over and the entire 
 lower Carson Valley was brought into the project. Similar 
 action has been taken on other projects. 
 
CHAPTER XII 
 
 IRRIGATION DISTRICTS 
 
 Legislation for the formation of districts for flood protec- 
 tion, drainage and roads was long ago adopted in both the 
 eastern and western states. Such acts secure for a community 
 the benefits of protective or public improvement works 
 through taxation, even though a minority of the property 
 holders object. As the appreciation of the results of irriga- 
 tion in the interior valleys of California spread during the 
 eighties and as the obstacle in the way of community enter- 
 prises of the old partnership or ordinary corporation type 
 seemed to be the larger ranchers who opposed the movement, 
 the compulsory district organization was suggested. The first 
 general irrigation district act was adopted by the California 
 legislature in 1887, and has since been generally known as the 
 Wright Act, as State Senator C. C. Wright was the most 
 prominent champion of the measure. 
 
 The California Irrigation District Act 
 
 The California irrigation district act as amended and 
 supplemented was re-enacted in 1897 and is locally known as 
 the Bridgeford Act. Statutes very closely following those of 
 California have been adopted in every irrigation state. 
 
 The following presentation of the provisions of the irriga- 
 tion district act is for the Bridgeford Act of California, but it 
 will serve as a general statement for such legislation in the 
 other states as the points of difference are but few. 
 
 An irrigation district is initiated by a petition to the board 
 of supervisors signed by a majority in number of the holders 
 of title to lands susceptible of irrigation from the proposed 
 source and representing a majority in value of said lands. 
 The petition must be published for two weeks and be pre- 
 sented at a regular meeting of the board, at which t ; me a hear- 
 ing is given to all those interested. If the action of the board 
 
 138 
 
IRRIGATION DISTRICTS 139 
 
 is favorable it defines the boundaries and divides the proposed 
 district into three or five divisions. 
 
 After favorable action by the board a date is set for an 
 election on district organization, the notice for which must be 
 published for three weeks. All qualified electors within the 
 district may vote upon the organization and at the same time 
 vote for the three or five directors, an assessor, a tax collector, 
 and a treasurer. Two-thirds of all votes cast must be for the 
 formation of the district in order to carry it. If the vote be 
 favorable, the board of directors so elected has control of the 
 district business, causes surveys and plans of the irrigation 
 system to be made and, after petition so to do, causes a bond 
 election to be held. At this election a majority of the votes 
 cast is necessary to carry the bond issue. The bonds bear 
 interest not exceeding six per cent and are payable from the 
 twenty-first to the fortieth year. 
 
 The interest on the bonds and the operation and mainte- 
 nance expenses of the district are paid by taxing all lands 
 (exclusive of improvements) within the district on an ad 
 valorem basis. The act specifically provides for the sale of 
 property for non-payment of taxes as in the case of non- 
 payment of state or county taxes. 
 
 Several amendments to the district act were passed at the 
 regular and special sessions of the California legislature in 
 1911. The aim of all of the amendments was to secure a 
 better financial basis for the sale of the district bonds. The 
 principal act provides for a detailed examination of the feas- 
 ibility of the districts by a commission, composed of the 
 attorney general, the state engineer, and the superintendent 
 of banks, when called upon to do so by the district board of 
 directors. When the commission approves the feasibility of 
 any district project, the bonds of the district may be regis- 
 tered at the office of the state controller and thereupon shall 
 be considered legal investments for all trust funds and for 
 funds of insurance companies, banks, etc., and are in general 
 placed upon the same legal basis for purposes of investment 
 as the bonds of cities, counties and school districts. By an 
 amendment of the district act in 1917, the commission is 
 authorized to examine the district's engineer's report, regard- 
 ing the nature and cost of construction works, preliminary to 
 a bond issue. It may make additional surveys and examina- 
 tion at the expense of the district, and shall make a full report 
 on the feasibility of the project to the directors of the district. 
 After the commission has approved a bond issue, no material 
 
140 ELEMENTS OF WESTERN WATER LAW 
 
 change can be made in the plans without the consent of the 
 commission. 
 
 Prior to 1913, no state official reported upon the feasibility 
 of an irrigation district, except in regard to the certification 
 of the bond issue as above stated. In that year the act was 
 amended to provide for the filing with the state engineer of a 
 copy of the petition on organization to the board of supervis- 
 ors, and for a report on the feasibility of the project by the 
 state engineer. If the state engineer reports that the project 
 is not feasible, the board of supervisors must dismiss the peti- 
 tion, unless petitioned in writing by three-fourths of the 
 holders of title to land within the proposed district. The 1913 
 amendment further provides that progress reports of construc- 
 tion work under bond issues shall be filed with the state engi- 
 neer, and the state engineer is authorized to examine the 
 affairs of a district and report thereon. In 1917, the state 
 engineer was authorized to make preliminary surveys and 
 field investigations of proposed district projects at the expense 
 of the state, and, pending the completion of such surveys and 
 investigation, the state water commission was authorized to 
 withhold from appropriation any unappropriated waters. 
 
 In 1917, as an alternative method of organization, it was 
 provided that the organization may be proposed by a petition 
 signed by not less than five hundred petitioners, each peti- 
 tioner to be a resident of the district or land owner therein, 
 said petitioners to own not less than twenty per cent in value 
 of the land in the district. 
 
 Points of Difference in Irrigation District Acts 
 The principal points of difference in the various state 
 irrigation district acts are the provisions regarding organiza- 
 tion, state regulation, qualifications of voters, bond issues, and 
 method of assessment. For the purpose of illustrating the 
 points of difference, this comment will be restricted to legisla- 
 tion in California, Colorado, Idaho, Nebraska, Oregon and 
 Wyoming, as they are the states in which the movement has 
 been most active. 
 
 The organization petition must be signed in California, by 
 a majority of the holders of title, representing a majority in 
 value of the land; in Colorado, by a majority of land owners, 
 representing a majority of area; in Idaho, by fifty or by a 
 majority of holders of title, representing one-fourth of acreage 
 assessable ; in Nebraska, by a majority of land owners resi- 
 dent in the state, owning at least ten acres, or holding five- 
 year lease on 40 acres; in Oregon, by fifty or a majority of 
 holders of title ; in Wyoming, by a majority of the freeholders. 
 
IRRIGATION DISTRICTS 141 
 
 In order to carry an election on organization it is necessary 
 to have a two-thirds vote in California and Idaho, a majority 
 vote in Colorado, Nebraska and Wyoming, and a three-fifths 
 vote in Oregon. 
 
 An investigation and report by the state engineer on the 
 feasibility of the project before organization is provided for by 
 California, Idaho, Nebraska and Wyoming. In all six of the 
 states, the state engineer examines and reports upon the plans 
 prepared by the district prior to issuing bonds for construc- 
 tion purposes. Wyoming is the only state making the approval 
 of plans by the state engineer necessary before voting on 
 bonds. In California, as previously stated, no bonds can be 
 certified by the state until the plans have been approved by 
 the bond commission. California irrigation district bonds now 
 find a ready market at good prices. Much of the prejudice 
 against such bonds, on account of the many failures under 
 the original Wright act, has been overcome for the most part 
 by the knowledge that the project was subject to approval by 
 state officials. As a single district failure may cause a rever- 
 sion to the old attitude of distrust, those interested in irriga- 
 tion development should be willing to give to the state engi- 
 neer, or commission, the right to prohibit the formation of a 
 district if found not feasible, but all attempts in that direction 
 have proved unsuccessful. 
 
 In California, any elector under the general election laws 
 may vote at all district elections. In Colorado, the right to 
 vote is restricted to the owner, or entryman, of agricultural 
 or horticultural land, who must in addition be over 21 years 
 of age, a resident citizen of Colorado, and must have paid taxes 
 on land the year before. In Idaho, the voter must be an elec- 
 tor under the general election laws and must own land and 
 reside in the district. In Nebraska, he must reside in the 
 state and own ten acres or hold five-year lease on forty acres 
 in district. In Oregon, he must be 21 years of age and own 
 land in the district. In Wyoming, any freeholder may vote, an 
 affidavit for the use of non-resident freeholders in voting being 
 set out in the act. 
 
 In order to carry a bond issue an affirmative majority vote 
 is sufficient in all of the six states excepting Idaho, where a 
 two-thirds vote is necessary. The interest rate on bonds shall 
 not be in excess of six per cent in all of the states, again 
 excepting Idaho, where it shall not exceed seven per cent. 
 Bonds must be sold at par in Idaho, and to the highest bidder 
 in the other states, but for not less than 95 in Colorado and 
 Nebraska, and for not less than 90 in Oregon and Wyoming. 
 
142 ELEMENTS OF WESTERN WATER LAW 
 
 In California and Nebraska, the lands within the district 
 are assessed on an ad valorem basis improvements being 
 exempted. In Idaho the assessment is iri accordance with the 
 benefits. In Colorado, Oregon and Wyoming, the irrigable 
 land only is assessed, and that at the same rate per acre. 
 
 The Constitutionality of Irrigation District Acts 
 Owing to the compulsory nature of the irrigation district 
 enterprise, it was to be expected that litigation should be 
 initiated immediately after the formation of the first California 
 districts by the landowners whose lands had been included 
 against their wish. The validity of the act was assailed on 
 every possible ground, but was upheld by the Supreme Court 
 of California and finally, in the celebrated case of Fallbrook 
 Irrigation District v. Bradley (164 U. S. 112), by the Supreme 
 Court of the United States. Extensive litigation has followed 
 the inauguration of irrigation districts in other states, but 
 the validity of the several acts has likewise been upheld. There 
 seems to be no question, therefore, that the many provisions 
 of the irrigation district acts are legally sound. 
 
 The report of the case of Fallbrook Irrigation v. Bradley 
 is interesting not only for the opinion by the court, but also 
 for the argument against the validity of the act given by 
 Joseph H. Choate, who in his argument presents the view of 
 a great number of Californians at that time in regard to the 
 questionable novel features of the act. The following extract 
 from Mr. Choate's argument shows what he thought of the 
 new system: 
 
 This brings into view the unique and, as we believe, wholly 
 unprecedented features of the scheme contrived by this act for the 
 oppression of the farmers of California. We think that the statute 
 books of all states and nations outside of California, prior to 1887, will 
 be searched in vain, without finding another such example, and espe- 
 cially in view of the construction which has been given to certain 
 details of this statute by the Supreme Court of California. 
 
 Early Irrigation Districts in California 
 Irrigation Investigations of the United States Department 
 of Agriculture has assembled much valuable data regarding 
 the many districts formed immediately after the passage of 
 the original Wright act of 1887. Mr. Frank Adams, in charge 
 of Irrigation Investigations in California, has presented some 
 of the data in his very commendable report on Irrigation Dis- 
 tricts in California, 1887-1915. (Published as Bulletin No. 2, 
 Department of Engineering, State of California.) The follow- 
 ing statistical information was included in a paper prepared by 
 Mr. Adams for the Commonwealth Club of California. It is 
 
IRRIGATION DISTRICTS 143 
 
 given here, as it so ably summarizes the fortunes, or misfor- 
 tunes, of the districts of the early movement : 
 
 Forty-nine districts were organized, and of these only 25 ever 
 issued any bonds. 
 
 The statement that practically all of the 49 defaulted in large 
 amounts should therefore be reduced one-half. 
 
 Of the 24 districts that issued no bonds, none at this time has 
 any outstanding indebtedness. Eleven have been legally dissolved. 
 Twelve have not been dissolved, although they are not active. One, 
 the Walnut Irrigation District, covering about 900 acres of land in Los 
 Angeles County, near Whittier, has been active and successful from 
 the date of its organization and has never defaulted in any way in 
 payment of indebtedness. 
 
 Of the 25 that issued bonds, 7 have made some kind of a settle- 
 ment and have no outstanding obligations as districts at this time. 
 Two have made settlement, but still have small outstanding indebted- 
 ness that either has been declared illegal or can not be found. Four 
 have made settlement by exchanging new for old bonds and are now 
 active, and with the exception of one, whose reorganization is not yet 
 complete and which therefore can not be judged, are active and suc- 
 cessful and can undoubtedly be counted on to pay both bonds and 
 interest as due. Five have compromise settlements pending. Seven 
 have apparently been totally abandoned, with no plan of settlement 
 as yet seriously taken up. 
 
 Where settlements have been made they have been so different 
 that it is hard to explain them with sufficient brevity for the purpose 
 of this paper, and reference is therefore made to the table that will 
 be submitted. The lowest basis of settlement has been 30 cents on 
 the dollar, and the highest between 80 cents and 90 cents. Several 
 compromised at 50 cents. 
 
 Of the 7 districts that apparently have been totally abandoned, 
 and for which no plans of settlement have yet been seriously taken 
 up, at least 3 were wildcat land-promotion schemes, pure and simple, 
 and although reported favorably by engineers of reputation, apparently 
 never had engineering justification, chiefly due to lack of water. The 
 outlook for them is not encouraging, although in time they will without 
 question be cleared up in some way. This might also be said of the 
 other four. 
 
 Operations Under Irrigation District Acts 
 
 Although twelve states had irrigation district acts in 1909, 
 only eight had district projects irrigating land in that year, 
 and only nine had projects either completed or under construc- 
 tion in 1910. The data for the following table have been taken 
 from the Thirteenth Census, which is the latest complete com- 
 pilation published. The table shows by states the total 
 acreage irrigated in 1909, the acreage irrigated by districts in 
 1909, and the acreage included within districts in 1910. 
 
144 
 
 ELEMENTS OF WESTERN WATER LAW 
 
 Total Acreage 
 
 STATE. Irrigated in 
 
 1909. 
 
 All States 13,738,485 
 
 California 2,664,104 
 
 Colorado 2,792,032 
 
 Idaho 1,430,848 
 
 Montana 
 
 Nebraska 
 
 New Mexico 
 
 Oregon 
 
 Utah . 
 
 1,679,084 
 255,950 
 461,718 
 686,129 
 999,410 
 
 Acreage Irrigated 
 by Districts in 
 1909. 
 
 528,642 
 
 173,793 
 
 115,304 
 
 140,930 
 
 412 
 
 76,448 
 
 Wyoming 1,133,302 
 
 1,500 
 
 8,455 
 
 11,800 
 
 Acreage Included 
 in Districts in 
 1910. 
 
 1,581,465 
 
 606,351 
 
 487,370 
 
 329,796 
 
 6,640 
 
 91,076 
 
 16,400 
 
 5,980 
 
 10,802 
 
 27,050 
 
 It is apparent from a study of the above table that there 
 was but little district development, up to 1910, outside of Cali- 
 fornia, Colorado, Idaho and Nebraska. Since 1910, district 
 activity has been far more pronounced. 
 
 At the close of 1916 in California the six districts in opera- 
 tion were irrigating 623,297 acres. Thirteen other districts 
 had been organized. The total acreage included within the 
 nineteen districts was 1,302,884. Most of the increase over the 
 1909-1910 table is due to the Imperial Irrigation District, 
 which has taken over the system of the California Develop- 
 ment Co., diverting water from the Colorado River. It com- 
 prises an area of 576,600 acres and in 1916 irrigated 333,724 
 acres. 
 
 According to the 1915-1916 report of the state engineer of 
 Idaho, in 1916 there were thirty-five districts in Idaho, twenty- 
 seven of which had submitted reports to the state engineer. 
 The twenty-seven districts comprise a total of 383,050 acres, 
 249,200 acres of which were irrigated in 1916. Six of the eight 
 districts not reporting have a total area of 97,118 acres, so that 
 Idaho had in excess of 480,000 acres under district organiza- 
 tion in 1916. 
 
 The 1915-1916 report of the state engineer of Oregon 
 shows that in 1916 Oregon had seventeen districts covering 
 approximately 416,400 acres and irrigating (in 1916) 32,200 
 acres, of which 23,000 acres were irrigated prior to the organi- 
 zation of the districts. 
 
 The successive state engineers of Colorado have been very 
 frank and direct in their statements regarding irrigation dis- 
 tricts in Colorado. The last report of the state engineer (1915- 
 1916) contains a criticism which reads like those in reference 
 to the early districts under the Wright act in California. 
 Among other things, he says, "Such flagrant abuses were prac- 
 ticed under this law, so many districts were organized for no 
 
IRRIGATION DISTRICTS 145 
 
 other purpose than to assess lands to pay the salaries of offi- 
 cers of the district, that the depreciation of irrigation securi- 
 ties was inevitable. Promoters, aided and fostered by certain 
 classes, boomers, real estate men and so-called colonizers 
 loaded many acres of Colorado's lands to the hub with worth- 
 less irrigation securities." The report states that sound irriga- 
 tion development is beginning to revive. It cautions the citi- 
 zens of Colorado to be on the alert to safeguard irrigation 
 securities in the future, so that confidence may be stimulated 
 and financial assistance rendered to Colorado's many excellent 
 projects. 
 
 The California Irrigation Act 
 
 In his 1915-1916 report, the state engineer of Oregon in 
 commenting on the Oregon irrigation district act said : "At 
 every session of the legislature, a whole flock of amendments 
 to the law are proposed. Each district has its own pet scheme, 
 which requires an adjustment of the statute." The comment 
 will probably apply in every other western state. It certainly 
 does in California, where proponents of projects not only have 
 insisted upon special amendments to the irrigation district 
 act, but have secured the passage of entire new acts to fit 
 special conditions. So far has this tendency been followed, 
 that Mr. Kinney, in criticising the many district acts in Cali- 
 fornia, concluded, "About the only law that the state of 
 California really lacks in the way of district law, relating to 
 waters, is one upon the subject of the control and regulation 
 of rain water before it hits the earth*, and we have no doubt 
 but that such a law will be enacted, upon our suggestion, at 
 the next session of the legislature." (Irrigation and Water 
 Rights, Pg. 3174.) 
 
 It is believed, however, that the California irrigation act, 
 enacted in 1915 and amended and supplemented in 1917, will 
 be of material assistance, especially in connection with the 
 larger and more complicated projects. The act was originally 
 passed to assist the proponents of the Iron Canyon project, 
 in the upper Sacramento Valley, in co-operating with the 
 United States Reclamation Service. It is now being used for 
 the formation of a "conservation district" to embrace about 
 1,000,000 acres in the counties of Fresno, Tulare and Kings, 
 susceptible of irrigation from the Kings River when regulated 
 by the proposed Pine Flat reservoir. 
 
 The act not only provides for the formation of single irri- 
 gation districts but also for conservation districts to include 
 irrigation districts, reclamation districts, drainage districts, 
 and other political subdivisions organized to promote irriga- 
 
146 ELEMENTS OF WESTERN WATER LAW 
 
 tion, reclamation or drainage. It further provides that com- 
 mercial irrigation enterprises and mutual water companies can 
 share in the benefits of the district. Excepting the Carey act, 
 there are irrigation enterprises of every type taking water 
 from the Kings River. The act will allow the inclusion of all 
 such enterprises within the one project, which will cover drain- 
 age, flood control and electric power development as well as 
 irrigation. 
 
 The act provides an irrigation board of three members 
 appointed by the Governor for terms of. four years. The board 
 has full control of each district formed under the act, from its 
 initiation to the completion of construction work and actual 
 operation. 
 
 The distinguishing features of the act are : the provision 
 for a board of apportionment of three members appointed by 
 the irrigation board to apportion the amount of water and 
 power developed, and cost thereof, to each unit of the con- 
 servation district; the provision for levying assessment in 
 accordance with benefits, and not on an ad valorem basis as 
 in the ordinary irrigation district act; the provision making 
 the decision of the irrigation board final after hearing on the 
 report of the three assessors, appointed by the irrigation 
 board; the provision for the listing and collection of assess- 
 ments, and sale of land in case of non-payment, by the county 
 officers in the same manner as county and school district 
 taxes; the provision entitling each land owner to vote in per- 
 son or by proxy, and to cast one vote for each acre owned; 
 and the provision requiring the deposit of all money collected 
 with the state treasurer, to be paid out by him upon the order 
 of the irrigation board. 
 
 Irrigation Districts on Reclamation Service Projects 
 
 As noted in the previous chapter, the Reclamation act 
 provides that, when the water-right payments have been made 
 for the major portion of the lands, the management and opera- 
 tion of the irrigation works shall pass to the land owners, to 
 be maintained at their expense under some form of organiza- 
 tion acceptable to the Secretary of the Interior. The water 
 users' association -was the form of organization used until 
 very recently. The association is simply a mutual water 
 company in which one share of stock represents one acre of 
 land. 
 
 The Reclamation Extension act of August 13, 1914, spe- 
 cifically mentions the irrigation district as one form of organi- 
 zation to be recognized by the Secretary. The present attitude 
 of the Service is to use the irrigation district in preference 
 
IRRIGATION DISTRICTS 147 
 
 to the water users' association. There are two principal argu- 
 ments in favor of such action one in favor of the land owner 
 and the other in favor of the government. 
 
 Under the water users' associations, the stock subscrip- 
 tion contract is practically a first mortgage upon the land. 
 Land owners under such associations have, therefore, experi- 
 enced much difficulty in borrowing money for needed im- 
 provements. Under the irrigation district, there is no contract 
 which will show in an abstract of title as a lien or mortgage. 
 The assessments are levied simply as taxes, and the abstract 
 will show whether such taxes have been paid or not. Banks 
 and other loan agencies may, therefore, lend money with the 
 assurance that their mortgage is the first lien. 
 
 From the government's view-point, the district is desir- 
 able, as the method of collecting annual charges is so well 
 fixed and definite. Where one knows that in case of default 
 his lands will be sold in an almost automatic procedure, he 
 is far more careful about paying promptly than he is in meet- 
 ing the ordinary stock assessment. Furthermore, some of the 
 projects contain areas within their boundaries which are not 
 "signed up" to the project and, therefore, are receiving bene- 
 fits for which no payment is made. Where a district is organ- 
 ized to include a project, such lands can be included and thus 
 made liable for assessments. 
 
 In the first edition of this book the view was expressed 
 (pg. 141) that there was probability of conflict in using the 
 reclamation fund for financing irrigation distr'cts, as the Rec- 
 lamation act restricts the use of water to individual holdings 
 of 160 acres and necessitates residence by the water user in 
 the neighborhood of the land. The latter condition has been 
 to a great extent removed by departmental interpretation, but 
 the acreage limitation still stands. Idaho was one of the first 
 states to amend its irrigation district act by providing that the 
 directors of a district, instead of issuing bonds, may enter into 
 a contract with the United States for the construction of the 
 works under the terms of the Reclamation act. In Nampa & 
 Meridian Irr. Dist. v. Petrie (153 Pac. 425), the Supreme 
 Court of Idaho upheld a contract between the Nampa etc. 
 District and the United States for the inclusion of the district 
 lands as part of the Boise project. The two conditions of the 
 Reclamation act, above mentioned, were pressed as reasons 
 for declaring the contract unlawful. The Court held that the 
 Warren Act of February 21, 1911, and the Reclamation Exten- 
 sion act of August 13, 1914, make no provision for residence 
 upon the lands, and that the acreage limitation was not then 
 
148 ELEMENTS OF WESTERN WATER LA\V 
 
 in question and would not be until the land, in excess of 160 
 acres held by one individual, was actually assessed for water 
 which, under the Reclamation act, could not legally be deliv- 
 ered. 
 
 The Nampa etc. District and the Pioneer Irrigation Dis- 
 trict are both old districts included within the Boise project. 
 The aim of the Service is to form districts to represent an 
 entire project or a complete unit thereof. It has secured the 
 amendment of the irrigation district act in most of the western 
 states in order to facilitate such organization and co-operation. 
 The Minidoka Irrigation District was organized July 22, 1913, 
 and is now operating the north side of the Minidoka project. 
 Districts have also been formed, to act as fiscal agent, or to 
 take over the operation of parts of the project, on the Yakima 
 project in Washington and on the Strawberry Valley project 
 in Utah. 
 
 Congressional Act of August 11, 1916 
 
 The purpose of this act is to give a lien upon public lands 
 and entered land, for which no final certificate has issued, 
 within an irrigation district. The act does not apply to a dis- 
 trict of which the major part is unentered land. Liens due 
 to charges legally assessed upon unpatented entries may be 
 enforced by the sale thereof in the same way as in the case of 
 private lands. If the land thus sold has been withdrawn under 
 the Reclamation act, no patent shall issue to the holder of the 
 tax deed until satisfactory proof is made of reclamation and 
 irrigation required by the Reclamation act, and the payments 
 required by said act are also made. In case of sale of entered, 
 but unpatented lands, not subject to the Reclamation act, the 
 purchaser may secure patent upon payment to the local land 
 office of $1.25 per acre, or such other price as may be fixed by 
 law for such lands, and upon a satisfactory showing that the 
 irrigation works have been constructed and that water is 
 available for such lands. The purchaser, at time of application 
 for patent, shall have the qualification of a homestead entry- 
 man or desert land entryman, and not more than 160 acres of 
 said land shall be patented to any one purchaser. 
 
 No unentered land or entered land, without final certifi- 
 cate, shall be subject to the lien for district assessments until 
 the Secretary of the Interior has favorably passed upon the 
 sufficiency of the water supply and the feasibility of the 
 project. 
 
 No public lands which were unentered at time of levy of 
 assessment against them shall be sold for taxes, but the tax 
 shall continue a lien upon the lands, and not more than 160 
 
IRRIGATION DISTRICTS 149 
 
 acres of such land shall be entered by any one person. When 
 such lands shall be applied for under the homestead or desert- 
 land laws, the application shall be suspended for thirty days 
 to enable the applicant to present the proper certificate show- 
 ing that the district taxes have been paid. 
 
 Nothing in the act shall be construed as creating any 
 obligation against the United States to pay any of the charges, 
 assessments or debts incurred. 
 
 The Future of Irrigation Districts 
 
 In the many decisions upon irrigation district acts, the 
 district is held to be a "quasi municipal corporation." The 
 Supreme Court of Idaho, accordingly, in Pioneer Irr. Dist. v. 
 Walker (119 Pac. 304), held that the provisions of the Idaho 
 irrigation district act, necessitating property qualifications by 
 voters, are unconstitutional, as the state constitution forbids 
 the imposition of such qualifications for electors, and irrigation 
 districts, being quasi municipal corporations, are subject to 
 the general election laws. 
 
 The Supreme Court of Oregon, in Payette-Oregon Slope 
 Irr. Dist. v. Peterson (128 Pac. 837), refused to follow the 
 Idaho Supreme Court, and its attitude seems the more logical. 
 The Oregon Court recognized the districts as quasi municipal 
 corporations, but held that they differ widely from any other 
 quasi municipality in the powers conferred and the objects to 
 be accomplished. A municipal corporation such as a city and 
 quasi municipal corporations such as road districts and school 
 districts are governmental, and all persons within their cor- 
 porate limits are subject to their authority and are burdened 
 or benefited by their acts. The irrigation district is thus dis- 
 tinguished from the others : 
 
 Others than landowners have no possible interest in the irriga- 
 tion districts as such, or in its financial management, nor right to a 
 voice in the naming of its officers; and a non-resident landowner has 
 exactly the same interest and responsibility as a resident, and is enti- 
 tled to the same voice in the direction of its affairs. Districts within 
 this statute can be distinguished from private corporations only by the 
 fact that their organization is compulsory upon those not petitioning 
 for it, and that the expense of maintenance is incurred and a large 
 debt created, which are made liens on the land without the consent of 
 the owner, payment of which must be made by compulsory assessment. 
 No other elements of government or municipal proprietorship are 
 involved. 
 
 The policy of allowing any elector within a district to vote 
 at elections and of prohibiting from voting landowners in the 
 district who are not resident electors, is one of the most objec- 
 
150 ELEMENTS OF WESTERN WATER LAW 
 
 tionable features of the irrigation district act in California and 
 other states having similar provisions. As noted above, the 
 new California irrigation act allows each land owner to cast 
 one vote for each acre of land. 
 
 Regardless of objectionable features, however, the irriga- 
 tion district is becoming the favorite method of organization 
 for the larger projects. Its use by the Reclamation Service 
 and the opportunity to extend its provisions to public lands 
 under the congressional act of August 11, 1916, will be re- 
 flected in a very large increase in area affected, when the 
 returns of the next census are published. In a previous chap- 
 ter, it is stated that the mutual company is destined to be the 
 controlling type in the operation of irrigation works. The 
 statement is undoubtedly true when we distinguish between 
 "private" and "public" systems. The district may be termed 
 a "public mutual" enterprise. Whether the "private mutual" 
 or the "public mutual" will be irrigating the larger total acre- 
 age ten years from now, is not a serious question. The point 
 of importance is that the "mutuals" control. 
 
CHAPTER XIII 
 
 THE DESIDERATUM IN LEGISLATION REGARDING 
 THE PUBLIC WATERS 
 
 The legal principles governing the use of water are the 
 result of judicial decisions rather than legislation. Just as 
 the doctrine of riparian rights is the outgrowth of the old com- 
 mon law as interpreted by the English courts, so the doctrine 
 of prior appropriation is the outgrowth of the customs of the 
 pioneer miners and irrigators as interpreted by the western 
 courts. To continue to exist as common law, a legal principle 
 must be reasonably adapted to the time and the place. The 
 strictly arid states long ago abrogated the doctrine of riparian 
 rights because it was wholly unsuited to conditions there 
 existing, and California and Washington have refused to fol- 
 low the English common law rule of percolating waters for 
 the same reason. 
 
 Riparian Rights 
 
 The western states still tolerating even a modified riparian 
 doctrine are only semi-arid and, naturally, the older and larger 
 cities of such states are in the semi-humid section. It is there- 
 fore not strange that their supreme courts still find some vir- 
 tue in the doctrine. Where irrigation is not the first aid to 
 successful agriculture the riparian doctrine seems rational, 
 and it would be at least unusual for one residing in a non- 
 irrigated section and trained in the common law of the books 
 to consider the doctrine of prior appropriation as other than 
 a makeshift of frontier camps. During the last two decades, 
 however, irrigation has been given a tremendous impetus, and 
 the great size of the many projects undertaken in the semi- 
 arid states has done much to show the unsuitability of the 
 riparian doctrine. 
 
 151 
 
152 ELEMENTS OF WESTERN WATER LAW 
 
 The doctrine of prior appropriation, on the contrary, is 
 proving more and more adapted to the needs of growing com- 
 munities with restricted water supplies. The cardinal prin- 
 ciple being reasonable use and the elimination of waste, no 
 ditch is allowed to divert water unless there is actual immedi- 
 ate need for the use thereof. The popular notion of the exclu- 
 sive ownership of water finds no authorization in the books. 
 On the contrary, expressions like the following show the atti- 
 tude of courts: 
 
 It is the policy of the law that the best methods should be used 
 and no person allowed more water than is necessary, when properly 
 applied, and thus a larger acreage may be made productive by its 
 extended application. Little Walla Irr. Union v. Finis Irr. Co. Ore. 
 124 Pac. 668. 
 
 As an instrument of the best development, the superior 
 claim of the doctrine of prior appropriation is perhaps nowhere 
 better shown than in the case of Schodde v. Twin Falls Land 
 & Water Company, decided by the Supreme Court of the 
 United States on April 1, 1912 (32 Sup. Ct. Rep. 479). The 
 plaintiff owns lands riparian to the Snake River in Idaho, and 
 by means of a number of water wheels, from 24 to 34 ft. in 
 diameter, elevated the waters thereof to irrigate his lands. 
 The defendant company, by the construction of the Twin Falls 
 dam and the consequent back water, destroyed the current and 
 rendered his wheels useless. If the doctrine of riparian rights 
 were recognized in Idaho the remedy of the plaintiff would 
 have been unquestioned, but the doctrine was long ago abro- 
 gated. The Supreme Court in affirming a judgment of dis- 
 missal quotes with approval the following words of the trial 
 Court : 
 
 It is unquestioned that what he has actually diverted and used 
 upon his land, he has appropriated ; but can it be said that all the water 
 he uses or needs to operate his wheels is an appropriation? As before 
 suggested there is neither statutory nor judicial authority that such 
 a use is an appropriation. Such a use also lacks one of the essential 
 attributes of an appropriation it is not reasonable. 
 
 The opinion is but another illustration of the point that 
 the doctrine of prior appropriation aims towards the highest 
 use and greatest development, and is adapted to the time and 
 the place. 
 
 Numbers of suggestions have been made regarding meth- 
 ods of limiting or abolishing the riparian right by legislation. 
 The California Water Commission act provides, in section 11, 
 that the non-application of water to beneficial purposes upon 
 riparian lands for any continuous period of ten successive 
 years shall be deemed to be conclusive presumption that the 
 
THE DESIDERATUM 153 
 
 use of such water is not needed upon said lands. This pro- 
 vision flies in the face of the principle, so often reiterated, that 
 the riparian right is not created by use and it does not cease 
 with disuse. The California Supreme Court itself, however, 
 by way of dictum only, has said : 
 
 It may well be said there is room for and even need for legisla- 
 tion which will require riparian proprietors to exercise their irrigation 
 rights in the use of water within a limited period, or to be decreed to 
 have waived these rights. Other similar legislation making for the 
 general good will readily occur to one's mind. But it is not the prov- 
 ince of this court to legislate, and it would be abhorrent to justice 
 now to say to an upper riparian proprietor, who has rested in security 
 upon the rights which this court has over and over again declared to 
 be his, that he has lost those rights through no fault or failure of his 
 own, but simply because he has not seen fit to use the waters upon 
 his riparian land. We take it that the legislature itself would be slow 
 so to decree without giving the riparian proprietor an opportunity to 
 make a beneficial use of the waters. We are asked to do this without 
 giving him such an opportunity. This would be equivalent to this 
 court erecting a statute of limitations against an upper riparian pro- 
 prietor and in the same breath decreeing that it had barred all his 
 rights. (Miller & Lux v. Enterprise, etc., 47 Cal., Dec. 1, 7. A re- 
 hearing was granted, and the final opinion, 169 Cal. 415, does not con- 
 tain the above dictum.) 
 
 It seems certain that legislation limiting the time within 
 which action may be brought by a riparian owner against 
 appropriators will be upheld as valid. Thus far no western 
 state has passed such legislation, although bills to that effect 
 were introduced at the 1917 session of the California legisla- 
 ture. 
 
 The 1917 California legislature passed a measure, gen- 
 erally known as the Hawson Bill, which should materially 
 assist appropriators in injunction cases brought by riparian 
 owners. The act provides that in an action brought by a 
 riparian owner to enjoin the diversion or use of water by an 
 appropriator, the latter may set up in his answer that the 
 water is for the irrigation of land or other public use, and also 
 set forth the amount to be diverted, nature, place and time 
 of use, and show by reference to the discharge of the stream 
 that the proposed diversion may be made without interfering 
 with the actual and necessary uses of the plaintiff. The 
 answer must also state that the defendant desires the court to 
 ascertain and fix the damages, if any, that will result to the 
 plaintiff or to his riparian lands from the diversion. The act 
 further provides certain details regarding the trial and appeal, 
 if desired, after which upon the acceptance by plaintiff "of 
 cuch amount so awarded or upon the affirmation of such decis- 
 
154 ELEMENTS OF WESTERN WATER LAW 
 
 ion on appeal so that such judgment shall become final, the 
 defendant shall have the right to divert and appropriate from 
 such stream, against such plaintiff and his successors in inter- 
 est, the quantity of water therein adjudged and allowed/' 
 
 Percolating Waters 
 
 California, Washington and Idaho are the only western 
 states which do not follow the common law rule that percolat- 
 ing waters belong to the owner of the soil. The Supreme 
 Courts of California and Washington have departed from the 
 common law, and have laid down a new rule somewhat analo- 
 gous to that of riparian rights in the surface streams. Under 
 the new rule, the owner of land overlying a body of percolating 
 water is entitled only to a reasonable use of such upon his 
 overlying land, and may enjoin any diversion of such water 
 to lands not overlying which will interfere with his reasonable 
 use. 
 
 The Supreme Court of Idaho has held that percolating 
 waters are subject to appropriation in the same way that the 
 waters of surface streams are. The legislation governing 
 appropriations in Idaho, therefore, can be considered as ex- 
 tended to percolating waters. 
 
 The only need for general legislation regarding percolat- 
 ing waters is a provision allowing courts, in their discretion, 
 to refer cases involving percolating waters to the state engi- 
 neer or water commission for investigation as referee or 
 special master. Scientific and technical questions, which arise 
 in the determination of the source and amount of percolating 
 waters, are so many and so difficult to positively answer that 
 the ordinary court procedure, necessitating the introduction 
 of evidence by expert witnesses, results in a mass of data most 
 confusing. An office like that of the state engineer or water 
 commission can collect these data at first hand and fully under- 
 stand the conditions under which such data are assembled. 
 That litigants fully appreciate this fact is well illustrated by 
 a case pending in California, brought by the Alameda County 
 Water District against the Spring Valley Water Company. 
 The Water Company, for the purpose of augmenting its sup- 
 ply of water for the City of San Francisco, is now constructing 
 the Calaveras reservoir on a tributary of Alameda Creek. The 
 Water District comprises within its limits lands lying on both 
 sides of Alameda Creek, in the so-called Niles Cone. It is 
 claimed that the water bearing strata underlying such lands 
 are supplied by the waters of Alameda Creek, and that the 
 proposed storage by the Water Company will substantially 
 lessen such underground supply and result in damage to the 
 
THE DESIDERATUM 155 
 
 land owners. Both the Water Company and the Water Dis- 
 trict collected much physical data, but, in attempting to effect 
 a settlement, decided that the data were insufficient "for an 
 intelligent and fair solution of all the questions involved, and 
 it is desired to obtain such data under the direction of some 
 competent and disinterested board." The Company and Dis- 
 trict, therefore, entered into an agreement dated September 
 1st, 1916, providing that the State Water Commission of Cali- 
 fornia shall direct the work of obtaining the necessary phys- 
 ical data for a three year period, and that the expense of such 
 work, not exceeding $10,000 per year, shall be paid by the 
 Water Company. The agreement further provides that at the 
 end of the three year period, or sooner if the commission con- 
 cludes that it has sufficient data, the "commission shall pro- 
 ceed in conference with the parties to fix and determine the 
 terms and conditions * * * upon which such storage and 
 additional diversion may be made * * *." The agreement 
 further provides that the settlement so fixed and determined 
 shall be final and conclusive upon the parties. 
 
 Irrigation Versus Navigation 
 
 As congress has the superior right to legislate regarding 
 the navigability of streams which may be used in interstate 
 commerce, any conflict between the interests of irrigation and 
 navigation rising out of the diversion of the waters of such 
 streams can not be anticipated and avoided by state legislation. 
 In certain parts of the west, especially on the Colorado and 
 Sacramento Rivers, the clash is probable. As action by con- 
 gress in favor of irrigation would be difficult to secure and of 
 doubtful validity, the question must be settled by the com- 
 munities involved. The investments in irrigation works and 
 the industries dependent thereon are increasing each year, 
 while other means for transportation are leaving little call for 
 that by water. 
 
 As the War Department in order to maintain the naviga- 
 bility of a river may stop the diversions from the tributaries 
 as well as from the main stream, it is clear that in most cases 
 the material wealth of whole counties might be jeopardized. 
 It seems certain, therefore, that public policy demands diver- 
 sions of the summer flow even to the detriment of navigation, 
 and that such conflicts will be adjusted to so allow. 
 
 Capitalization of Water Rights 
 
 As previously stated, Section 20 of the California water 
 commission act forbids the capitalization of water rights ini- 
 tiated under the act. The provision is not found in the other 
 
156 ELEMENTS OF WESTERN WATER LAW 
 
 western codes, principally for the reason that it was formerly 
 generally understood that water rights, at least for irrigation 
 purposes, could not be capitalized. The decision of the United 
 States Supreme Court in the San Joaquin case (233 U.S. 454) 
 is to the contrary, however, and will probably apply in all 
 states where the state supreme court has not decided other- 
 wise. Regardless of the attitude of the state courts, it is recom- 
 mended as a precautionary measure that every western state 
 adopt positive legislation forbidding the capitalization of 
 water rights initiated after its passage. The same action 
 should be taken regarding rights of way over state lands and 
 franchises to occupy streets. Development should be stim- 
 ulated in every practical way by the nation, states, cities and 
 other political units, but the privileges granted should be so 
 conditioned that capitalization thereof is impossible. 
 
 Legislation Regarding Appropriations 
 
 Every western state has statutes fixing the procedure to 
 be followed in making appropriations. Arizona and Montana 
 still follow the practice of posting notices. Excepting Colo- 
 rado, the remaining irrigation states have a central office in 
 which applications for permission to appropriate water are 
 filed and the conditions fixed under which the rights may be 
 perfected. Most states give this central office the right to 
 reject an application for specified reasons like lack of water 
 supply, interference with prior rights, or detriment to the 
 public welfare. Such statutes have been in force for over 
 twenty years and there are practically no cases showing an 
 abuse of the power of rejection. 
 
 A number of states have the central office publish the 
 application so that all interested may be heard in regard 
 thereto before final action thereon. This practice has proved 
 of great benefit to both the old and the new appropriators. 
 It gives present users an opportunity to know about and pro- 
 test against any appropriation which might prove detrimental 
 to their own, and it shows the intending appropriator the true 
 situation before he expends any money in construction. Every 
 state while following the old method had instances of the 
 construction of works whose operation was enjoined immedi- 
 ately after completion. The new method aims to eliminate 
 such waste of time and money. 
 
 It must be emphasized that the new legislation controlling 
 appropriations is based upon no new legal principles. It 
 simply offers an improvement in the details of administra- 
 tion just as a modern auditing system makes it possible for 
 a business house to more easily control its operations. Under 
 
THE DESIDERATUM 157 
 
 the new system the appropriates is under state control from 
 the initiation to the completion of his project. It is a control, 
 however, which protects, rather than prohibits, bona fide 
 projects. Under the old method of posting notices, the records 
 were useless as evidences of work actually done, and one was 
 never certain of the status of his right during construction. 
 
 In those states having no special legislation for the deter- 
 mination or adjudication of existing rights to the stream flow, 
 the status of the various rights is settled only by ordinary 
 court action. It is, therefore, possible to have dozens of law 
 suits over water rights on a stream without all of the water 
 users being brought into any one of them. The new system 
 provides a method for the determination of all rights in a 
 s ; ngle proceeding. Colorado, Idaho, Utah, North Dakota, 
 South Dakota, Oklahoma, New Mexico and Washington pro- 
 vide for adjudications directly by the courts, and Wyoming, 
 Nebraska, and Texas determine rights through a non-judicial 
 officer or board. Oregon, Nevada, and California combine the 
 two by providing for a determination by a board which must 
 be affirmed or modified by a court before becoming final. 
 
 The first edition of this book ended as follows : 
 
 "As the states in which rights are determined by a board 
 have secured the best results, and, as the Oregon method 
 meets the approval of those who think such determination a 
 strictly judicial matter, it is recommended that the Oregon 
 method be followed in the states not included in the enumera- 
 tion above. So far as bringing all claimants into one action 
 is concerned many courts have held that they now have that 
 power and have refused to consider the merits of a case until 
 all claimants were made parties. The newer legislation, there- 
 fore, simply insures this being done in every case." 
 
 "Although one may be successful in the ordinary lawsuits 
 regarding water rights in those states in which the new leg- 
 islation has not been adopted, he is without protection, other 
 than further court action, if the wrongful diversions continue. 
 Here again the abler courts have taken the matter into their 
 own hands and have appointed officers to divide the waters in 
 accordance with the decree and at the expense of the parties 
 interested. The new legislation cares for the distribution by 
 dividing the state into districts with water commissioners to 
 apportion the waters therein in accordance with the determin- 
 ation of rights. The system was first introduced in Colorado 
 in 1879 and has been accepted by all the western states with 
 the exception of Arizona, California, Kansas, Montana, Texas 
 and Washington." 
 
158 ELEMENTS OF WESTERN WATER LAW 
 
 "The new legislation regarding water rights by appropria- 
 tion effectively provides for the three essentials : first, the 
 determination of existing rights; second, the distribution of 
 water among those entitled to its use; and third, the control 
 of the acquisition of new rights. It is working so well in the 
 many states in which it has been adopted that there is no good 
 reason why it should not be generally accepted. It is certain 
 that a more general knowledge of its many good points would 
 dispel the existing prejudice against any change in such mat- 
 ters and bring about the desideratum in legislation regarding 
 our public waters." 
 
 The quoted paragraphs were written five years ago. Since 
 then, California, Texas and Washington have adopted "water 
 codes," and Kansas has legislated regarding new appropria- 
 tions and has created a water commission to study and recom- 
 mend water legislation. Only Arizona and Montana re- 
 main, and each attempted to pass new water laws at the 1917 
 legislative session. It is believed that the interest is suffi- 
 ciently great in the two states to result in a successful issue 
 in the near future. It seems, therefore, that the goal is in 
 sight. 
 
INDEX 
 
 Abandonment of Water 
 
 Rights 45 
 
 Access, right of, to appropri- 
 ate 34 
 
 Acquirement of Water 
 
 Rights 52- 80 
 
 Acreage irrigated in 1909. . . 110 
 Irrigated by Commercial 
 
 Enterprises 110 
 
 Irrigated by Irrigation 
 
 Districts 144 
 
 Irrigated by underground 
 
 supplies 25 
 
 Act of 1866 3, 96 
 
 Act of 1870 3 
 
 Act of March 3, 1891 98 
 
 Act of May 11, 1898 99 
 
 Act of February 15, 190 1 100 
 
 Act of February 1, 1905 100 
 
 Adams, Frank 142 
 
 Adjudication of Rights.. 53- 76 
 
 Adverse Use, Title by 48 
 
 Against Upper Riparian 
 
 Owners 49 
 
 Alaska Juneau Gold Mining 
 Company v. Ebner Gold 
 Mining Company ..34, 36, 43 
 Anaheim Union Water Co. v. 
 
 Fuller 19 
 
 Anderson v. Bassman 86 
 
 Anderson v. Kearney ....... 67 
 
 Annual charges on Appropri- 
 ations 71 
 
 Annual charges for right of 
 
 way permits 103 
 
 Applications, protest on.... 65 
 Appropriation, Doctrine 
 
 of 1-8, 34- 44 
 
 Beneficial Use 42 
 
 California Civil Code 6 
 
 Definition of 39 
 
 Diligence in 39 
 
 Incomplete 41 
 
 Legislation regarding .... 156 
 
 Measure of the right 42 
 
 Navigable waters ........ 37 
 
 Notice of 5, 8 
 
 On public lands 34 
 
 Principles of .. . 43 
 
 Proceedings to effect 39 
 
 Relation, doctrine of 41 
 
 Right, of access 34 
 
 Surface waters 38 
 
 Waste waters 38 
 
 Waters in artificial chan- 
 nels 38 
 
 Waters of Lakes 37 
 
 Waters open to 35 
 
 Archer v. Chicago M. & St. 
 
 P. Ry. Co 51 
 
 Arizona, Area irrigated in.. 110 
 
 Commercial enterprises in 110 
 
 Notice of appropriation. . 80 
 
 Riparian doctrine 12, 18 
 
 Artesian Wells 31 
 
 Artificial Channels, Appro- 
 priation of water in 38 
 
 Avery v. Johnson 35 
 
 B 
 
 Bathgate v. Irvine 50 
 
 Bean v. Morris , . .85, 94 
 
 Bear Lake v. Budge 64, 77 
 
 Bear Lake Irrigation Co. v. 
 
 Garland 36, 97 
 
 Bergman v. Kearney 78 
 
 Bien Code 67, 75 
 
 Bien, Morris 67 
 
 Bidleman v. Short 38 
 
 Boehmer v. Big Rock Irri- 
 gation District 19 
 
 Boise City Irrigation & Land 
 
 Co. v. Stewart 64, 78 
 
 Bonds, Irrigation Districts 
 
 139, 141 
 
 Boquillas Cattle Co. v. Cur- 
 tis , 18 
 
 Bower v. Moorman 31 
 
 Brewer, Justice 87 
 
 Bridgeford Act < 138 
 
 Broder v. Natoma Water & 
 
 Mining Co 4 
 
 Burley v. United States. 134, 135 
 Burr v. Maclay Rancho Wa- 
 ter Co. 29 
 
 California, Area in Irriga- 
 tion Districts . 144 
 
 Commercial enterprises . . 110 
 Contrast of rules for per- 
 colating water and ripa- 
 rian rights 32 
 
INDEX 
 
 Forfeiture in 46 
 
 Irrigated area in 110 
 
 Irrigation Act 145 
 
 Irrigation Districts 
 
 i 138, 142, 144 
 
 Lateral limits of riparian 
 
 Rights 19 
 
 Prescription in 49 
 
 Riparian doctrine 11 
 
 Rules for underground 
 
 waters 28 
 
 Spanish grants, riparian 
 
 rights in 21 
 
 Statutes governing appro- 
 priations. . .6, 8, 17, 40, 70 
 Underground waters, rules 
 
 for 26 
 
 Water right legislation... 70 
 California Development Co. 115 
 Capitalization of water 
 
 rights 155 
 
 Carey Act 123- 127 
 
 Development under 126 
 
 State legislation 124 
 
 Carey, Senator 123 
 
 Choate, Joseph H 142 
 
 Clough v. Wing 1 
 
 Coffin v. Left Hand Ditch 
 
 Co , 10, 17 
 
 Colorado, Carey Act devel- 
 opment 126 
 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Irrigation Districts in. 140, 144 
 Map and Statement Act . . 52 
 
 Riparian doctrine in 12 
 
 Running reservoir water 
 
 in natural streams. . .1. . 56 
 Underground waters .... 30 
 Water right legislation. 52- 56 
 Commercial Irrigation En- 
 terprises 109- 120 
 
 Classes of Ill 
 
 Regulation of 114 
 
 Conger v. Weaver 5, 41 
 
 Conrow v. Huffine 43 
 
 Cokinham v. Lewis 82 
 
 Co-operative Irrigation En- 
 terprises 109- 120 
 
 Crandall v. Woods 27 
 
 Crane Falls Power & Irriga- 
 tion Co. v. Snake River Ir- 
 rigation Co 81 
 
 Crawford v. Hathway 
 
 17, 19, 74, 77 
 
 Definition of Rights 53- 76 
 
 Departmental regulations on 
 
 rights of way 100 
 
 Desert Land Act. ,, .18, 121- 122 
 
 Desideratum in legislation 
 regarding the public wa- 
 ters 151- 158 
 
 DeWolf skill v. Smith . . 8, 38, 96 
 
 Diligence 39 
 
 Legal delays, effect on. 40, 41 
 
 Distribution of water 55- 82 
 
 Duckworth v. Watsonville 
 
 Water & Light Co. .;22, 35, 37 
 
 Eastern Oregon Land Co. v. 
 Willow River Land & Ir- 
 rigation Co 16 
 
 Eccles v. Willow River Land 
 
 & Irrigation Co 31 
 
 Eddy v. Simpson 6, 72 
 
 Entryman, Desert Land Act 121 
 
 Carey Act 125 
 
 Reclamation Act 130 
 
 Escondido Mutual Water Co. 
 
 v. Escondido . .1 117 
 
 Estoppel 50 
 
 Ex parte Elam 31 
 
 Extension Act of Reclama- 
 tion Act . . 132 
 
 Fallbrook Irrigation District 
 v. Bradley 142 
 
 Farrington, Judge 79 
 
 Farm Investment Co. v. Car- 
 penter 76 
 
 Farmers Irrigation District 
 v. Frank 60 
 
 Forest Service 41 
 
 Right of way regulations. 99 
 
 Forfeiture 45 
 
 Fruitland Irrigation Co. v. 
 Thayer 116 
 
 Gage Canal 112 
 
 Gallatin v. Corning Irriga- 
 tion Co 16 
 
 Grant Realty Co. v. Ham, 
 
 Yearsley and Ryrie 40 
 
 Gustin v. Harting 51 
 
 Gutierres v. Albuquerque 
 Land Co 88 
 
 H 
 
 Half Moon Bay Land Co. v. 
 
 Cowell 22 
 
 Hanson v. McCue 26, 28 
 
 Hargrave v. Cook 50 
 
 Hawley, Judge 43, 49 
 
 Heilbron v. Fowler Switch 
 
 Canal Co 23 
 
INDEX 
 
 Hoge v, Eaton 85 
 
 Homstead Act 121 
 
 Horst Company v. Tarr Min- 
 ing Co 49 
 
 Hough v. Porter.. 18, 37, 70, 74 
 
 Howell v. Johnson 85 
 
 Hudson Water Co. v. Mc- 
 
 Carter . 94 
 
 Riparian doctrine in 11 
 
 Water right legislation... 75 
 
 Kansas v. Colorado 86 
 
 Katz v. Walkinshaw..26, 29, 30 
 
 Kidd v. Baird '. 72 
 
 King v. Chamberlin 38 
 
 Kinney, C. S 145 
 
 Idaho, Carey Act develop- 
 ment i. . 126 
 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Irrigation districts in. 140, 144 
 
 Riparian doctrine 12 
 
 Underground waters 31 
 
 Water right legislation . 61- 64 
 Imperial Water Co. No. 5 v. 
 
 Holabird 115 
 
 Indeterminate licenses .... 101 
 Incomplete appropriations.. 41 
 Indian reservation, appropri- 
 ation on 35 
 
 Interstate streams, water 
 
 rights on 84- 95 
 
 Inyo Consolidated Water 
 
 Co. v. Jess 41 
 
 Irrigated area 110 
 
 Irrigation Act, California. . . 145 
 Irrigation Districts, area ir- 
 rigated by 144 
 
 Bonds 139, 141 
 
 California irrigation dis- 
 trict act 138 
 
 Congressional act of Au- 
 gust 11, 1916 148 
 
 Constitutionality of acts. 142 
 Early districts in Califor- 
 nia 142 
 
 Elections in 139, 141 
 
 Entries under 148 
 
 Future of 149 
 
 Operations under 143 
 
 Points of difference in acts 140 
 
 Organization of 138, 140 
 
 Reclamation Service proj- 
 ects 146 
 
 Supervision by state.. 139, 141 
 Irrigation versus navigation 155 
 Irwin v. Phillips 2 
 
 Johnson, C. T 69 
 
 Jones v. Adams 10, 17 
 
 Jones v. Conn 19 
 
 K 
 
 Kansas, Area irrigated in.. 110 
 Co-operative enterprises in 110 
 
 Lakes, appropriation of 
 
 waters of ,. . 37 
 
 Lake Shore Duck Club v. 
 
 Lake View Duck Club. ... 35 
 Lateral limits of riparian 
 
 rights 19 
 
 Leavitt v. Lassen Irrigation 
 
 Company 114 
 
 Legislation See appropria- 
 tion, riparian rights, per- 
 colating waters, water 
 rights; also each state. 
 Legislation regarding inter- 
 state streams .90 
 
 Le Quime v. Chambers 31 
 
 Limomiera Co. v. Railroad 
 
 Commission 117 
 
 Little Walla Irr. Union v. 
 
 Finis Irr. Co 152 
 
 Longmire v. Yakima High- 
 lands Irr. & Land Co 16 
 
 Los Angeles v. Los Angeles 36 
 Los Angeles v. Pomeroy. ... 26 
 
 Loss of water rights 45- 51 
 
 Lux v. Haggin 10, 17, 22, 23 
 
 Lynch v. Lower Yakima Ir- 
 rigation Co 97 
 
 Me 
 
 McClintock v. Hudson. . . w. . 31 
 McCook Irrigation & Water 
 
 Power Co. v. Burtless.... 116 
 McCoy v. Huntley 42 
 
 M 
 
 Marshall v. Niagara Springs 
 Orchard Co 34 
 
 Measure of the right in ap- 
 propriation 42 
 
 Mentone Irrigation Co. v. 
 Redlands, etc. Co 23, 
 
 Merritt v. Los Angeles..... 41 
 
 Miller v. Bay Cities Water 
 Co 13, 15, 25 
 
 Miller & Lux v. Enterprise, 
 etc 153 
 
 Miller & Lux v. Fresno 
 Flume & Irrigation Co... 15 
 
 Miller & Lux v. Madera Ca- 
 nal Co 12, 15 
 
 Monopoly in public water. . 103 
 
INDEX 
 
 Montana, Area in irrigation 
 
 districts 144 
 
 Commercial enterprises in 110 
 Carey Act development . . 127 
 
 Irrigated area in 110 
 
 Notice of appropriation ... 81 
 
 Riparian doctrine 11 
 
 Water right legislation..!. 80 
 
 Montezuma Canal Co. v. 
 Smithville Canal Co 83 
 
 Morrow, Judge 18 
 
 Mutual irrigation enterprises 112 
 
 N 
 
 Nampa & Meridian Irr. Dist. 
 v. Petrie 147 
 
 Nation, State v. right3 of 
 way 107 
 
 Navigable waters, appropri- 
 ation of 37 
 
 Navigable waters, riparian 
 rights to 23 
 
 Navigation versus Irrigation 155 
 
 Nebraska, area in irrigation 
 
 districts 144 
 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Lateral limits of riparian 
 
 rights 19 
 
 Riparian doctrine in... 11, 17 
 Water right legislation . 59- 61 
 
 Nevada, Carey Act develop- 
 ment 127 
 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Riparian doctrine in 12 
 
 Water right legislation. 66- 67 
 
 Newlands, Senator 66 
 
 New Mexico, Area in irriga- 
 tion districts 144 
 
 Artesian wells 31 
 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Riparian doctrine in 12 
 
 Water right legislation in 67 
 
 Non-use, period to consti- 
 tute forfeiture 45, 46 
 
 North Dakota, Irrigated area 
 
 in 110 
 
 Riparian doctrine in 11 
 
 Water right legislation in 67 
 
 Oklahoma, Riparian doctrine 
 
 in 11 
 
 Water right legislation in 67 
 Ophir Mining Company v. 
 
 Carpenter 39 
 
 Oregon, Area irrigated in . . 110 
 
 Carey Act development . . 127 
 
 Commercial enterprises in 110 
 
 Irrigation districts in. 140, 144 
 Lateral limits of riparian 
 
 rights 19 
 
 Riparian doctrine in. . 
 
 12, 16, 18 
 
 Water right legislation . . 69 
 
 Ownership of water rights. . 117 
 
 Pacific Livestock Company 
 v. Cochran 78 
 
 Pacific Livestock Company 
 v. Lewis 78 
 
 Palermo Land & Water Co. 
 v. Railroad Commission.. 115 
 
 Palmer v. Railroad Commis- 
 sion 72 
 
 Pasco Reclamation Co. v. 
 Rankert 116 
 
 Patrick v. Smith 30 
 
 Payette-Oregon Slope Irr. 
 Dist. v. Peterson 149 
 
 Percolating waters, defin- 
 ition 25 
 
 Law of 25 
 
 Legislation regarding . . . 154 
 Rule of versus rule of ri- 
 parian rights 32 
 
 Pioneer Irr. Co. v. Board of 
 Commissioners of Yuma 
 County, Colo 119 
 
 Pioneer Irrigation District v. 
 W r alker 149 
 
 Power purposes, water 
 rights for 101 
 
 Posting notices of appropri- 
 ation 6, 81 
 
 Prescription 48 
 
 Rights of way by 51 
 
 Prior appropriation, princi- 
 ples of . .; 43 
 
 Proceedings to effect appro- 
 priations 39 
 
 Prosole v. Steamboat Canal 
 Co 118 
 
 Pueblo of Isleta v. Tondee. 82 
 
 Pueblo rights 26 
 
 Raymond Lumber Company 
 v. Raymond Light & Wa- 
 ter Company 116 
 
 Reasonable diligence 39 
 
 Reasonable use among ripa- 
 rian owners 22 
 
 Reclamation Act 128- 138 
 
 Development under 135 
 
 Extension Act of Aug. 13, 
 
 1914 132 
 
 Irrigation districts under. 146 
 
INDEX 
 
 Judicial construction of. . 134 
 
 Kansas v. Colorado 86 
 
 Of June 17, 1902 128 
 
 Of August 9, 1912 132 
 
 Operation and mainten- 
 ance under 130, 133 
 
 Private lands under 130 
 
 Water users associations. 131 
 
 Regulation of Rates and 
 Service 102 
 
 Relation, doctrine of, in ap- 
 propriation 41 
 
 Revocable licenses 101 
 
 Rejection of applications... 65 
 
 Reservoir water, running in 
 streams 56 
 
 Residence requirements, des- 
 sert entries 122 
 
 Carey Act 125 
 
 Reclamation Act 130 
 
 Right of access, to appropri- 
 ate 34 
 
 Rights of way over public 
 
 lands 96- 108 
 
 Departmental regulations. 100 
 
 Power purposes 100 
 
 By prescription 51 
 
 Rincon Water & Power Co. 
 v. Anaheim Union Wiater 
 Co 41 
 
 Riparian rights in Western 
 
 states 9- 24 
 
 Abandonment of ........ 46 
 
 Desideratum of 151 
 
 Early decisions 9 
 
 Lateral limits 19 
 
 Navigable waters 23 
 
 Oregon legislation.... 
 
 69, 71, 74, 75 
 
 Reasonable use 22 
 
 Restricted to riparian 
 
 lands . . ., 21 
 
 States adopting and re- 
 
 jecting 11 
 
 Statutory limitations .... 17 
 Summary of principles... 23 
 Underground waters and, 
 compared 29 
 
 Roberts, Chief Justice 82 
 
 Rogers v. Overacker 49 
 
 Ross, Justice 11 
 
 S 
 
 Salt River project 131 
 
 San Joaquin & Kings R. C. 
 & I. Co. v. Fresno Flume & 
 
 Irrigation Co 16 
 
 San Joaquin & Kings R. C. 
 & I. Co. v. Stanislaus 
 County 118, 156 
 
 San Joaquin Light & Power 
 Co. v. Railroad Commis- 
 sion 106 
 
 Schodde v. Twin Falls Land 
 
 & Water Company 152 
 
 Shaw, Justice 14, 27 
 
 Shurtleff v. Kehrer 16 
 
 Snyder v. Colorado Gold 
 
 Dredging Co ( 105 
 
 St. Germain Irrigating Co. v. 
 
 Hawthorne Ditch Co... 46, 77 
 Smith Canal v. Colorado Ice 
 
 Co 30 
 
 Smith v. Hawkins 47, 48 
 
 Smith v. Hope Mining Co.. 45 
 Spanish grants, California 
 riparian rights in........ 21 
 
 Speer v. Stephenson. ....... 82 
 
 South Dakota, Commercial 
 
 enterprises in 110 
 
 Irrigated area in 110 
 
 Riparian doctrine in 12 
 
 Water right legislation ... 67 
 Stanislaus Water Company 
 
 v. Bachman 114 
 
 Starr v. Child . ., 27 
 
 State (Washington) v. Supe- 
 rior Court of Grant County 23 
 State of Wyoming v. State 
 
 of Colorado 91 
 
 Statute of limitations 51 
 
 Still v. Palouse Irrigation & 
 
 Power Co 16, 18 
 
 Stockman v. Leddy 90, 94 
 
 Subterranean channels 25 
 
 Sucker Creek, in re 69 
 
 Sullivan v. Northern Spy 
 
 Mining Company 35 
 
 Sumner Lumber & Shingle 
 Co. v. Pacific Coast Power 
 
 Co 41 
 
 Surface waters, appropria- 
 tion of j 38 
 
 Swigart v. Baker 135 
 
 Temple, Justice 27 
 
 Texas, Commercial enter- 
 prises in 110 
 
 Irrigated area in 110 
 
 Riparian doctrine in 12 
 
 Water right legislation ... 74 
 Thayer v. California Devel- 
 opment Company 115 
 
 Turley v. Furman 93 
 
 Twaddle v. Winters 12 
 
 U 
 
 Underground waters, Law 
 
 of 25- 33 
 
 Rules for, in California. 28, 29 
 
INDEX 
 
 Comparison with riparian 
 rights 29, 32 
 
 Union Mill & Mining Com- 
 pany v. Dangberg. . . . .43, 49 
 
 Union Mill & Mining Com- 
 pany v. Ferris 4, 9 
 
 United States v. Hanson 
 
 128, 134 
 
 United States v. Rickey 
 Land & Cattle Co 97 
 
 Utah, Area in irrigation dis- 
 tricts 144 
 
 Carey Act development . . 127 
 Commercial enterprises in 110 
 
 Irrigated area in 110 
 
 Riparian doctrine in 12 
 
 Water right legislation.. 64 
 
 Utah Power & Light Co. v. 
 United States 105 
 
 Utt v. Frey 45 
 
 Vanderwork v. Hewes 38 
 
 Van Sickle v. Haines..3, 9, 22 
 Verdugo Canyon Water Co. 
 
 v. Verdugo 51 
 
 W 
 
 Walbridge v. Robinson 92 
 
 Washington, Area irrigated 
 
 in 110 
 
 Commercial enterprises in 110 
 
 Riparian doctrine in . 12, 16, 18 
 Underground waters, rules 
 
 for 26, 30 
 
 Water right legislation... 75 
 
 Waste waters 38 
 
 Water course, definition of. 36 
 Waters open to appropria- 
 tion 35 
 
 Water power on navigable 
 
 streams 107 
 
 Water rights, capitalization 
 
 of 155 
 
 Water rights, on interstate 
 
 streams 84- 95 
 
 Water right legislation. .52- 83 
 Water-users associations . . . 131 
 Watkins Land Co. v. Cle- 
 ments 20 
 
 Wells v. Mantes 7, 41 
 
 Welborn, Judge 41 
 
 Wheeler v. Northern Colo- 
 rado Irrigation Co 117 
 
 Wiel, Water Rights in West- 
 ern States 21 
 
 Willey v. Decker 84 
 
 Willow Creek, in re 78 
 
 Wright Act 138 
 
 Wyoming, Area irrigated in. 110 
 
 Carey Act development . . 127 
 
 Commercial enterprises in 110 
 
 Irrigation districts in 144 
 
 Riparian doctrine in 12 
 
 Water right legislation 
 
 56- 59 
 
 Wyoming v. Colorado. 91 
 
 Young v. Hinderlider 82 
 
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