iSlSHjl m\ M HIP mm $ 4< ttdlrm n / ' i P ill KniiiUHiHjutiflUI University of California Berkeley ELEMENTS OF WESTERN WATER LAW BY A. E. CHANDLER Irrigation and Water Right Specialist; Assistant Professor Irrigation Institutions, University of California; Secretary American Engineering Corporation, San Francisco TECHNICAL PUBLISHING CO. SAN FRANCISCO 1913 Copyright 1912 Technical Publishing Company a/ PREFACE The following chapters were published as separate articles in the Journal of Electricity, Power and Gas. They present in abbreviated form part of a course in "Irrigation Institutions" given to advanced students in the Colleges of Agriculture and Civil Engineering of the University of California. As the western law of waters has been developed by the courts it is necessary to quote freely from the cases, although the text is intended for those untrained in jurisprudence. Owing to the restricted space available for the articles as first published, only the leading cases on each point have been cited, but an attempt has been made to refer to important cases not following the established rule. So great is the public interest in our water re- sources today that no explanation is deemed necessary for the publication of a book on a legal topic to be read by laymen. A. E. CHANDLER. San Francisco, December, 1912. CONTENTS CHAPTER I. Early Development of The Doctrine of Appropriation 1 Congressional Act of 1866 3 California Act of 1872 7 CHAPTER II. Riparian Rights in The Western States 11 Early Decisions 11 States Adopting and Those Rejecting 20 Lateral Limits 22 Riparian Rights Restricted to Riparian Land 26 Summary of Principles 27 CHAPTER III. The Law of Underground Waters 28 Percolating Waters 28 Contrast of California Rules of Percolating Waters and of Riparian Rights 35 CHAPTER IV. The Doctrine of Appropriation 38 Appropriations Not Restricted to Public Lands 38 Waters Open to Appropriation 39 Proceedings to Effect Appropriations 41 Incomplete Appropriations 43 The Measure of The Right 44 Principles of Prior Appropriation 45 CHAPTER V. Loss of Water Rights 47 Abandonment and Forfeiture 47 Adverse Use or Prescription 47 Estoppel 53 Rights of Way by Prescription 55 CHAPTER VI. Water Right Legislation 56 California 56 Colorado 57 Wyoming 61 Nebraska 65 Idaho 67 Utah 70 Nevada 73 New Mexico, North Dakota, Oklahoma and South Dakota 74 Oregon 76 Review of Legislation 77 Conclusion 82 CHAPTER VII. Water Rights on Interstate Streams 83 Court Decisions 84 Kansas v. Colorado 85 Legislation Regarding Interstate Streams 90 CHAPTER VIII. Rights of Way Over Public Lands for Ditches and Res- ervoirs 94 Act of March 3, 1891 96 Act of May 11, 1898 98 Act of February 1, 1905 98 Act of February 15, 1901 99 Rights of Way for Power Purposes Through National Forests 99 Special State Legislation Regarding Water Rights for Power Purposes 101 Comments on Water Power Legislation 102 State versus Nation 103 CHAPTER IX. Commercial Irrigation Enterprises 106 Examples of Companies "Renting" Water 108 Companies Selling Water Rights But No Interest in System 109 Companies Selling Water Rights Carrying an Interest in System 110 Colorado Anti-Royalty Act Ill Regulation of Commercial Enterprises Ill Who Owns the Water Right 112 CHAPTER XI. The Desert Land Act and The Carey Act 115 The Desert Land Act 115 The Carey Act 117 State Legislation 119 Development Under The Carey Act 121 CHAPTER XII. The Reclamation Act 123 CHAPTER X. I rrigation Districts 132 The California Irrigation District Act 132 Points of Difference in Irrigation District Acts 134 The Constitutionality of Irrigation District Acts 136 Operations Under Irrigation District Acts 136 Irrigation Districts in California 137 Irrigation Districts in Colorado and Idaho 138 Advantages and Disadvantages of the District Organ- ization 139 CHAPTER XIII. The Desideratum in Legislation Regarding The Public Waters 143 Riparian Rights 143 Percolating Waters 143 Irrigation Versus Navigation 146 "Monopoly" in Public Waters 146 Legislation Regarding Appropriations 147 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 mark- edly distinct from the riparian rights of the common law. It grew out of the occupancy of the public do- main 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 irrigation 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 popula- tion. 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, appro- priate and use the waters of these streams in husbandry, and sacredly recognize 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 controversies 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 2 WESTERN WATER LAW of the very early cases often quoted is Irwin v. Phil- lips (5 Cal. 140) decided in 1855 and the following extract from the opinion clearly shows the necessity for the doctrine of prior appropriation : Courts are bound to take notice of the political and social condition 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 of intent of disposition of these lands has been shown either by the United States or the State governments, and with the ex- ception of certain State regulations, very limited in their char- acter, a system has been permitted to grow up by the voluntary occupation of the mineral region has been tacitly assented to by the one government, and heartily encouraged by the expressed legis- lative 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 necessi- ties of gold diggers, and without which the most important interests of the mineral region would remain without develop- ment. 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 legis- lature 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 privi- lege 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 : DOCTRINE OP APPROPRIATION 3 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 pro- prietorship. 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, therefore, the then critical situation was happily relieved by the passage of the famous Act of 1866 which is now Sec- tion 2339 of the Revised Statutes of the United States and reads as follows : (Whenever, by priority of possession, rights to the use of x water for mining, agricultural, manufacturing, or other pur- poses, 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 Section 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 I 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__jrighs_ which had vested and accrued recognized, but also the rights of 4 WESTERN WATER LAW way for ditches and reservoirs in connection there- with. 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 owner- ship. 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 ap- propriation 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 exist- ing 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 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 & Mining 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 Cali- fornia 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 ex- DOCTRINE OP APPROPRIATION 5 pense, 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 governing 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 construed 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 oper- ation, 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 construction therein given, one who received patent prior to July, 1866, for riparian land could en- join 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 theJSupreme Qourt 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 October, 1879. The water company had con- structed 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 6 WESTERN WATER LAW the passage of this Act of 1866, that the latter would be in- effectual as regards these lands. But we 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 making operations and for purposes of agricul- tural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the govern- ment had, by its conduct, recognized and encouraged and was bound to protect, before the passage 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 con- struction 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 decisions 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 ex- cept 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 and has failed to impress our California legislators early or late. 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 established, as between claimants on gov- ernment land, the doctrine of relation in regard to appropriations in the following words : DOCTRINE OF APPROPRIATION 7 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 valueless, 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 presumed 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 for the object in view; and it conse- quently follows that the same rule must be applied here to pro- tect 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 j work, 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 prop- erty 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 general principles of prior appropriation were thus established by the California Supreme Court in the fifties. As new cases arose they were enlarged upon and strengthened, so that when the legislature did finally act upon this subject in 1872 the sections adopted were but declaratory of the existing law. The sections then enacted are 1410 to 1422 of the Civil Code and still remain, with slight amendments, the only statutory provisions on appropriation of water, with the exception of special legislation re- garding appropriations for power purposes adopted at the regular and special sessions of 1911. 8 WESTERN WATER LAW Section 1415, providing for notices of appropria- tion, and Section 1416, providing for prosecution of the work, are as follows : SECTION 1415. Notice of Appropriation. A person desiring to appropriate water must post a notice, in writing, in a con- spicuous place at the point of intended diversion, 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. After filing such copy for record, the place of intended diver- sion or the place of intended use or the means by which it is intended to divert the water, may be changed by the person posting said notice or his assigns, if others are not injured by such change. This provision applies to notices already filed as well as to notices hereafter filed. SECTION 1416. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prosecute the work diligently and uninterruptedly to comple- tion, unless temporarily interrupted by snows or rain; pro- vided, that if the erection of a dam has been recommended by the California Debris Commission at or near the place where it is intended to divert the water, the claimant shall have sixty days after the completion of such dam in which to commence the excavation or construction of the works in which he in- tends to divert the water; provided, that whenever any city and county, * * * (A proviso added in 1911 to relieve cities and towns from the necessity of prosecuting the construction work with the diligence required of other appropriates.) Section 1418 provides that the water right will relate back to the time of posting notice on compli- / ance with above rules. DOCTRINE OF APPROPRIATION 9 Section 1422 provides that when the "place of in- tended diversion or any part of the route" is within a national park, forest reserve 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 as pro- vided in Section 1416. As stated above, under the doctrine of relation laid down in Conger v. Weaver, the right to appropri- ate 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, fixes this first step as the posting of the notice (Section 1415). It is now well settled (Wells v. Mantes, 99 Cal. 583) that the statute need not be followed in order to make a valid appropriation in California (ex- cept for power purposes under the 1911 statute which is not under consideration in the present article), but by failure to follow the statute the benefit of the doctrine of relation is lost and the right dates back only to the completion of the work. There is there- fore nothing to be gained and much to be lost by not following the statute. As is shown by Sections 1415 and 1416 there is no public officer in California concerned in the form or contents of the notice of appropriation and the consequent construction work. Our county records abound in notices under which no construction or sur- vey 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 is begun and continued with reason- able diligence to completion, as provided in the statute, no right accrues. The use of the water alone fixes the right. In regard to the statements required by the three subdivisions of Section 1415, practically any notice, re- gardless of form, giving the number of inches claimed, the purposes, place of use, means of diversion and size of conduit, will suffice. In the records are found 10 WESTERN WATER LAW examples of empty generalities as well as some of refined details. As an illustration of how little need 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 undersigned 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 Com- pany. I intend to use said water for domestic and irrigation pur- poses on the land which was known as the Rancho San Jacinto Nuevo and the Morena, 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. DE WOLFS KILL. Witness: DAVID G. DE WOLFSKILL. 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 was entitled to have the waters thereof flow in the natural channel, unpolluted in quality and undimin- ished in quantity. A strict interpretation of the doc- trine would therefore forbid any use of the waters of the stream whatsoever. It was early modified in England so that two uses are recognized ordinary or natural, including the use for domestic and stock purposes, 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 allgwed/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 doc- trine 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. 249) 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) doc- trine of riparian rights. 11 12 WESTERN WATER LAW 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 deci- sion in all the Nevada courts. It is important to note the following words of Chief Justice Lewis (in Van Sickle v. Haines) regarding the two doctrines, as they show an erroneous view of the doctrine of appropria- tion which, unfortunately, has been shared by the courts in many Western States : "It (the common law) is a rule which gives the greatest right to the greatest number, authorizing each to make a reason- able 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 appro- priators was before the court for the first time. Coffin and others were riparian owners along the St. Vrain River, who, in the dry season of 1879, interfered with the ditch of the Ditch Company, which diverted the St. Vrain waters to another watershed. The company being a prior appropriator, Coffin relied upon his ripa- rian 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, un- known to the countries which gave it birth, compels the recogni- tion of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first ap- propriator of water from a natural stream for a beneficial pur- pose has, with the qualifications contained in the constitution, a prior right thereto to the extent of such appropriation." In the late seventies the case of Jones v. Adams, (19 Nev. 78), arose out of conflict over the waters of Sierra Creek, which, like Daggett Creek of the Van RIPARIAN RIGHTS 13 Sickle case, is a small Sierra Creek on the west side of Carson Valley in Nevada. It was decided by the Su- preme 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 ripa- rian 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 California reports) is sufficient evi- dence 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 natur- ally 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 stated "... It does not require a prophetic vis- ion 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 in- dividuals. . . ." The riparian doctrine as modified in Lux v. Hag- gin is commonly called the California rule. Its princi- ples, 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, anl passes with it, not as an easement or appurtenance, but as part and parcel of it. JJse^does not create the right, and disuse can- not destroy or suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quan- tity has been diminished as a consequence of the reasonable ap* plication of it by other riparian owners for purposes hereafter to be mentioned. "By our law the riparian proprietors are entitled to a rea- sonable use of the waters of the stream for the purpose of irri- gation. What is such reasonable use is a question of fact, and 14 WESTERN WATER LAW depends upon the circumstances appearing in each particular case. ..." Lux v. Hag-gin was decided by a divided court of four to three. It has not only fastened the rule of ripa- rian rights upon California, seemingly for all time, but has been the main reliance of the other western states following the California rule. The following extract from the dissenting opinion of Justice Ross shows how decided was the difference of opinion among the Justices : "The common-law doctrine of riparian rights being wholly inconsistent 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 bor- dering on the river or other stream of water. 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, Kansas, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas and Washington. Parts of each of the states named are so humid that irriga- tion is not only not necessary, but there is a demand for drainage. In the remainder of the irrigation states Arizona, Colorado, Idaho, Nevada, New Mex- ico, Utah and Wyoming the doctrine of riparian rights has been abrogated and the so-called Colorado rule followed ; that is, the doctrine of appropriation ex- clusively. 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 Caliornia rule, and that the strictly arid or "inte- rior" states (that is, well within the irrigation zone) follow the Colorado rule. One often hears the remark that there is no real conflict between the doctrines in California to-day, and RIPARIAN RIGHTS 15 it many times comes from a supposedly reliable source. Even the Supreme Court of Nevada in a recent case, 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 Cali- fornia 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 practically 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 California Supreme Court has not only not departed from its position in Lux v. Haggin, but has within the past few years handed down opinions which almost nullify the doctrine of appropriation under certain physical conditions. While the Nevada Supreme Court was writing its opinion 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 reservoirs 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 over- flow them and deposit "on such lands large quantities of fertilizing and enriching materials, increasing their productiveness and enhancing their value." The canal company argued that it intended to divert and store only the flood waters which could 16 WESTERN WATER LAW not be considered part of the natural flow to which 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 fol- lowing 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 reason^ able 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 re- strain 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 reasonableness." A case even more bewildering to appropriators, if possible, was that of Miller v. Bay Cities Water Com- pany, c>cided 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 Coy- ote River and thus impound 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 reaching 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 RIPARIAN RIGHTS 17 said gorge. It accordingly affirmed the decree perpet- ually enjoining the water company "from arresting or obstructing at or above the lower gorge (except :r,C\2f for the reasonable use thereof on the lands of said cor- poration in the exercise of its riparian rights) any of the 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 plain- tiff 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 plaintiff 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 prac- tical purposes, waste waters." The above ruling seems to establish so wasteful a policy that Justice Shaw wrote a concurring opinion 18 WESTERN WATER LAW 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, bettering navigation during the low water pe- riod. 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 prac- tically indeterminable ; that the storage at chance in- tervals of such small quantities, subject to heavy evap- oration losses, would be of little value ; and that grant- ing permission to store such waste while conferring no 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 remembered is that each case deals with such conditions that the court believes actual damage would be done if storage was allowed. This is em- phasized in the recent case of Miller & Lux v. Fresno Flume Co. (158 Cal. 626), decided November 22, 1910, wherein the plaintiff sought to have enjoined the main- tenance of defendant's dam and its alleged interference with the natural flow of Stevenson Creek, a tributary of the San Joaquin River. Plaintiffs quote many California cases "as estab- lishing the proposition that the riparian owner is entitled to the unobstructed flow of a stream at all times, including flood waters and that, with- out regard to damage, it is the right of every riparian proprietor to have the water corne to his land through its natural channel, undiminished in quantity and un- impaired in quality, save to the extent that results from reasonable use of the water by other riparian owners upon the stream." RIPARIAN RIGHTS 19 In answer to this argument the court says : "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 usufructuary 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 continues : "In Miller v. Bay Cities Water Co., 157 Cal. 256 (107 Pac. 115), the principle is clearly recognized and declared that an ap- propriator 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, states, "That our cases 'decide that an injunction restraining the .diversion of storm or flood waters will not be granted at the instance of a riparian owner, when it appears that he will not be injured in any way by such diversion.' " It is 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. It is shown in the closing part of this opinion that both parties are really riparian owners so that the relative rights of appropriators and riparian owners did not actually arise in the case. The language used has therefore the force of a dictum only, but as it was accepted by an undivided court it will undoubtedly hold in such cases. The conclusion that must be drawn from the above is that Jower ^^n^n^wners_rnay not only enjoin the diversion of the natural flow but may also enjoin the storage of even the flood waters if such stor- age will result in damage, either present or prospective. It is therefore of vital interest to know the limits of 20 WESTERN WATER LAW riparian lands and the general limitations which other states have placed upon the riparian doctrine. The modified rule of riparian rights has been fol- lowed by California, Kansas, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas and Washington; and has been rejected by Ari- zona, Colorado, Idaho, Nevada, New Mexico, Utah and Wyoming. Its rejection 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., given in the previous article. 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 statute is that of Nebraska. In Crawford v. Hathaway (67 Neb. 325) decided Febru- ary 4, 1903, it is held : The irrigation act of 1889 abrogated in this State the com- mon law rule of riparian ownership in water, and substituted in lieu thereof the doctrine of prior appropriation. This legis- lation could not and did not have the effect of abolishing ripar- ian 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 providing 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 appro- priation of water in accordance with the Code provisions. RIPARIAN RIGHTS 21 Neither a grantee of the United States nor the grantee of a private person, who was a riparian owner when the Code was adopted, need rely for protection on Section 1422. Such per- sons are protected by constitutional principles. At the first 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 at- tack upon the riparian doctrine 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 appropri- ation 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 the recent case of 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 im- plied understanding that (except as to water for domestic pur- poses) the first to appropriate 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 State Supreme Court in Boquillas Cattle Company v. Curtis (213 U. S. 339) decided April 19, 1909. The case involved a conflict between a riparian owner and an appropriator and the Court after stating that the riparian doctrine was not applicable in Arizona, con- tinued : The opinion that we have expressed makes it unnecessary to decide whether land in the arid regions patented after the 22 WESTERN WATER LAW 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 Su- preme 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, suffi- ciently "plausible" to follow. In Still v. Palouse Irrigation & Power Co. (117 Pac. 466) decided Au- gust 19, 1911, the Court had before it a case somewhat similar to Miller & Lux v. Madera Canal Co., except 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 were 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 appro- priator can neither divert nor store flood waters when such might result in damage, present or pros- pective, to a riparian owner. Any large project, to pro- tect itself, must therefore purchase the riparian land or the riparian right annexed thereto it being well set- tled that the riparian right may be sold apart from the land. The generally accepted lateral limit of riparian land is the margin of the water shed. 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 boundaries regardless of the watershed. RIPARIAN RIGHTS 23 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 materially restricted the lateral limits as shown by the following quotations. In the case at bar the stipulation is that these fourteen quar- ter 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 contiguity cannot extend a riparian right which is appur- tenant 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 an- other a part of the land not contiguous to the stream, he there- by 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 Califor- nia. 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 ex- ists solely by virtue of his ownership of the lands over or by which the 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, right- fully 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 government 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 24 WESTERN WATER LAW 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 leave 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 recent 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 in- terested 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 developments necessitate storage, pros- pective power plants are as materially affected by the flood water decisions as irrigation 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 sug- gestion would not apply. As those grants often ex- tend 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 par- tition of a riparian tract the part distant from the RIPARIAN RIGHTS 25 stream loses its riparian right "unless the conveyance declares the contrary." A number of 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 edition 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 con- flict with rights outside of the grant. The conclusion 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 un- doubtedly 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 Califor- nia, 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 ordi- nary assessor's map showing ownership along the streams will give the riparian lands they being those 26 WESTERN WATER LAW 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 riparian right States) to that of appropriation, there is a popular idea that a riparian proprietor ac- tually owns the water and is not limited to its use on his riparian land. The courts, however, have consist- ently held to the contrary, as illustrated 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 Company, (150 Cal. 520). The Watsonville Company, in order to protect its diversion 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. Duck- worth 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 deter- mined as against the company. The company claimed that by the purchase of the riparian lands and the riparian rights, including those annexed 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 judg- ment 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 ex- ercising. 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 con- cerned, the water company is not entitled to prevent an appro- priation or use by others of the surplus of waters of the lake, if there is any. RIPARIAN RIGHTS 27 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. Summary of Principles. The riparian doctrine has been abrogated in the seven strictly arid States and has been adopted in the ten semi-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 likewise. 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 particular case. The right is not created by use and does not cease with disuse. As between a riparian owner and an appropriator, the for- mer is not limited by any measure of reasonableness, and may restrain any diversion or interference 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 watershed. In California, Nebraska and Texas the right is further limited to the original tract granted ' by the government, and in California still further lim- \ ited to the smallest tract at one time in a single \ownership. It is not improbable that the lateral limits may be ultimately 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 statutes. It is certain, however, that statutes annulling riparian rights existing prior to their passage are clearly unconstitutional. All such changes in the doctrine must be made by the courts and not the legislatures. CHAPTER III. THE 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 irrigated in 1909 in the Western States was wells. Of this area 332,410 acres were irrigated from wells in California, for which the total was 2,664,- 100 acres. Although the area so irrigated is but a small percentage of the total, it is constantly increas- ing. 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 pump- ing. They have installed a working exhibit on the University of California demonstration train and keep an expert in attendance to explain the operation of motors and pumps. The gas engine and pump manu- facturers are equally interested and through their cat- alogues are making an effective argument for the in- troduction of pumping plants for irrigation. There are two classes of natural underground waters percolating waters and those that flow in a defined subterranean 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 28 UNDERGROUND WATERS 29 "sub-flow" of streams is especially common. In the previous chapter the recent 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 subject to the same legal principles as the waters of surface streams. In most jurisdic- tions underground waters are presumed to be perco- lating and the burden of proving the existence of a known and defined 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 accepted except as later stated in this chap- ter. An early California case Hanson v. McCue (42 Cal. 303) adopts the rule in the following lan- guage. 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 the usufructory right of others, which is to be respected by the owner of an estate through which a de- fined stream of water is found to flow. The owner may appro- priate the percolation and filtrations as he may choose, and turn them to profit if he can. It must be appreciated that the task of showing the difference 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 illus- tration 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 connection 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 subter- ranean 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 30 WESTERN WATER LAW waters were but percolating waters and therefore be- longed to him as owner of the soil. Very elaborate models and relief maps were introduced in connection with the expert testimony on each side and the court finally decided that the evidence showed the existence of a well defined channel and that the underground waters were therefore part of the flow of the Los Angeles River and not percolating waters. California is the only Western State which has thus far departed from the common law rule of per- colating waters. In the now celebrated case of Katz y. 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 riparian thereto. The defendant on the contrary alleged that the water rising in her Avells was percolating water and therefore her prop- erty. 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 authorities and dwelling on the difference in conditions "in a coun- try like Southern California, where the relative im- portance of percolating water and water flowing in definite water courses is greatly changed," concluded that a different rule was required and established the new rule of reasonable use. A rehearing was granted in order that additional arguments might be presented by those "not parties to UNDERGROUND WATERS 31 the action, but vitally interested in the principle in- volved," and the final opinion, 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 modification of the law of percolating waters, as shown by the fol- lowing extract : The idea that the doctrine contended for by the defendant is a part of the common law adopted by our statute, and be- yond 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 ob- serve 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 bet- ter 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 incon- sistent with the spirit of our institutions, but such as are framed with special reference to the physical condition of a country dif- fering 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 Cali- fornia.) After other forcible statements in regard to the adaptability and power of modification of the common law, the opinion describes at considerable length the semi-arid conditions existing in a large part of Cali- fornia ("in almost all of the southern half of it"), the insufficiency of the natural streams as sources of irri- gation supply, and the absolute need of the utilization of the underground waters. Following the statement that "The claim that the doctrine stated by Mr. Jus- tice Temple is contrary to all the decisions of this court is not sustained by an examination of the cases," 32 WESTERN WATER LAW it proceeds to analyze the former California cases sup- posedly upholding the common law rule of percolat- ing waters, beginning with Hanson v. McCue, and concludes : In view of this conflicting and uncertain condition of the authorities 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 in- juries from interference with percolating waters were too ob- scure 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 prevailing 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 dis- tant 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 giv- UNDERGROUND WATERS 33 ing 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 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 fol- lowed in all subsequent percolating water cases aris- ing in California. As far as the establishment of fur- ther rules is concerned, the most important of the sub- sequent cases is Burr v. Maclay Rancho Water Com- pany (154 Cal. 428) decided in 1908, as the question left undecided in Katz v. Walkinshaw was presented. The plaintiff therein "sued to enjoin the defendant company from pumping water from its wells on land adjoining 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 irri- gated block 191. Defendant's wells are on block 192 and while its pumps are being operated "it is impos- sible for the plaintiff to obtain any water from his wells by means of his pumps." In the consideration of the case the Court com- ments 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 avail- able 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 v/ell set forth the principles established that they are quoted in full : 34 WESTERN WATER LAW 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 para- mount. Such rights, however, extend only to the quantity of water that is necessary for use on his land, and the appropri- ator 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 pro- tect 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 ap- propriate, 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. UNDERGROUND WATERS 35 Although the new rule of percolating waters is now so firmly established in California, no other Western State has thus far adopted it, although the tendency seems that way. 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 California, but, as it considered the law of underground waters not necessary to the case before it, did not follow it. The Supreme Court of New Mexico in Vanderwork v. Hewes (110 Pac. 567) treated the new rule in the same way. as the Idaho court. The Supreme Court of Colorado in Smith Canal v. Colorado Ice Co. (98 Pac. 940) after referring to Katz v. Walkinshaw, stated : The law regulating ownership of percolating waters in the arid States is now of great as time passes it will be still greater importance; and, until a proper case is presented calling for it, we decline to announce the rule applicable to our local con- ditions. As stated in McClintock v. Hudson (141 Cal. 275) the new rule regarding percolating water "makes it to a great extent immaterial whether the waters in this land were or were not a part of an underground stream" provided the withdrawal of such waters by defendant can be shown to substantially 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, and in the latter the problem of proving the alleged damage to a source of supply remains and is generally a difficult one. 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) corres- ponds 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 36 WESTERN WATER LAW diversion or storage of the waters of a stream when such diversion is or may be of injury to him ; and in the consideration of the question of probable damages the riparian owner cannot be restricted to a reason- able 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 rea- sonable amount for his overlying land and the appro- priator the surplus for the distant land; and in cases of present non-use by the overlying owner, the appro- priator 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 California seemingly for all time. This was so written as the general view, even among those strenuously opposed to the doctrine, is that the Su- preme Court of California could not seriously con- sider 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. Haggin. It is believed, however, that the riparian rights of consequence 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, com- paratively few of which will retain the riparian right, and which will therefore be better served by the doc- trine of appropriation. There remain in addition to the grants the public land subdivisions immediately UNDERGROUND WATERS 37 touched or crossed by the streams, and which lie in such narrow strips that usually no feasible irriga- tion scheme can be made to include them without including non-riparian lands also that is, without resting on the doctrine of appropriation. The abro- gation of the riparian rule would therefore not mate- rially injure single proprietors, the aggregate of whose holdings now seriously retards the promotion of stor- age 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 uhsuited to the conditions existing in California. The court in Lux v. Haggin undoubtedly con- sidered the riparian rule the best for the interests of the State, and looked upon the doctrine of appropria- tion 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 untenable. 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 recently adopted so that the great mass of water rights resting on the doctrine of appropriation must be defined 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 de- claratory of existing law (established by the courts). Similar statutes were first adopted in the other West- ern States and the court rulings throughout differ but little. Appropriations Not Restricted to Public Lands. The statement is generally made by those advo- cating the riparian doctrine that appropriations (in riparian right States) can only be made on the pub- lic lands and this view is somewhat sanctioned by earlier California decisions. In Duckworth v. Wat- sonville (150 Cal. 520) the rule is positively stated as follows : 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 inter- ests. DOCTRINE OF APPROPRIATION 39 The above does not mean that one may trespass upon private property and make a diversion. The right of way for the ditch or conduit must, of course, be secured from the owner of the riparian land. In regard to appropriations and use on public lands not subject to entry it has been recently held by the Supreme Court of Washington in Avery v. John- son (109 Pac. 1028) that no such right "can be ac- quired by one illegally occupying land in an Indian reservation, prior to the opening of the reservation to settlement under the homestead law." Waters Open to Appropriation. The statutes governing appropriations refer to the waters subject thereto as "running water flowing in a river or stream," "natural watercourses," "all waters," or use other expressions of the same nature, and a few enumerate in addition "lakes" and "springs." The courts treat the waters of a "natural watercourse" as being open to appropriation and a definition 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 direc- tion, 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 of the tract of land, occasioned by unusual freshets or other extraordinary 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. The statement that all waters of natural water- courses may be appropriated must be qualified in the case of navigable streams. In Miller v. Enterprise Company (142 Cal. 178) the plaintiff sought to enjoin the defendant, a subsequent appropriator, from inter- fering with his dam and ditch, and the latter defended WESTERN WATER LAW its action on the ground that plaintiff's dam obstructed navigable stream, the San Joaquin River. It was J held that as the plaintiff had for many years appro- ^/priated water from the river, a navigable stream, with- complaint from any public authority, state or y ^national, and that while navigation had been inter- fered with, no person not connected with the govern- ment could complain. All cases between individuals raising the question of interference with navigation will undoubtedly be decided in the same way. It is well established, however, that the 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 inter- fere with navigation. (United States v. Rio Grand D. I. Co., 174 U. S. 690). 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 1 stream." but the court held: We think the better doctrine in respect to the character of ft e r% 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 suffi- j /cient if there is flowing stream; and the fact that it ends either ' ^/j? f in a swamp, in a sandy wash in which water disappears, or in J^ a lake in which it is accumulated upon the surface of the ground, Q<\ 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 constitutes a part of it, as well as from any other part of the water course. In Hough v. Porter (98 Pac. 1083) the Oregon Su- preme Court held, contrary to the above, in speaking of riparian rights, that when water spreads, as in a swamp or marsh, "with no well-defined current it cannot be deemed a water course." As the Oregon statutes now provide for the appropriation of "all waters" within the State, this ruling cannot affect appropriators. It is well settled that water in artificial channels DOCTRINE OF APPROPRIATION 41 or reservoirs cannot be aprjojDjr^ jfiajjy ;_ _deyelQped" a.S jt^ a. raining tunnel aad allowed. to flow in a natural water course to place of intended use are likewise exernpt. It has been recently held by the Supreme Court of New Mexico in Vanderwork 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<^ l* rise and are not subject to appropriation without hish& &x consent. The rule was followed by the Idaho Supreme iffrh Court in King v. Chamberlin (118 Pac. 1099) decided Nov. 3, 1911, where the waters in question were sur- face waters collected in a reservoir on plaintiff'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 y M and filtering through the earth or not." The differ- ence between this case and those cited in the last para- graph is that these waters, though artificially devel- oped, had been abandoned, and the others had been retained in private possession. Proceedings to Effect Appropriations. An appropriation has been defined as "the intent to take, accompanied by some open, physical demon- stration of the intent, and for some valuable use." c^h Since the adoption of the early statutes providing # -f for the posting of notices at the point of intended diversion, the "intent" is expressed in the notice. Fol- ^\ lowing the notice, the steps are the recording of the notice and the initiation of the construction work with- Jt) in the time designated generally ten and sixty days respectively the prosecution of construction to com- pletion 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 u0n 42 WESTERN WATER LAW 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 result is that the occa- sional 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 h&J fj Company v. Carpenter (4 Nev. 534) which is often quoted on this question by other courts. The follow- $ maps and statements containing the information re- quired by the act and of a form satisfactory to the state engineer. If satisfactory to the state engineer one copy is filed in his office and the other approved and 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 reservoir lies. It is further provided that a certified copy of the map and statement shall be prima facie evidence of the intent of the claimant. The Act of 1881 provided that the right dated back to the commencement of the work upon compliance with the act and the exercise of reasonable diligence in con- struction. 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 commencement of the work. The state engineer has issued a circular contain- ing the list of fees (Act of 1911), text of forms, and the \rules and regulations in regard to the preparation of maps and statements. The circular states, "It is com- pulsory to use the forms of statements and affidavits as given herein. It will save time and delays." 0~**iui&~ < ** ^ y; 58 WESTERN WATER LAW There is no question, therefore, but that the state en- gineer has a satisfactory record of the intention of new appropriators in Colorado, but there his supervision ends. Other than the provision that due diligence in construction must be exercised, the act is silent regard- ing any record of proof thereof, so that the claimant, in case of dispute, must settle the point in the courts, as in California. In regard to the acquirement of rights, therefore, Colorado has but slightly improved upon California. 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 reser- voir within any water district should file with the clerk of the district court having jurisdiction a sworn state- ment setting forth among other things the date of his appropriation -by original construction, 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 irri- gated 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 dis- trict is initiated by one or more interested persons (who have filled 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 by proofs the act pro- \ ides : Said referee shall also examine all witnesses to his own sat- isfaction, touching any point involved in the matter in question, and shall ascertain as far as possible the date of the commence- ment 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 WATER RIGHT LEGISLATION 59 thereby occasioned, the length of time spent in such construc- tion or enlargement, the diligence with which the work was pros- ecuted, the nature of the work as to difficulty of construction, and all such other facts as may tend to show compliance 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 to the enlargements thereof, and the time when each such sev- eral appropriations took place. After closing the testimony the referee prepares the report 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 procedure and is sound from the technically legal standpoint. Jts weakest point is thai it does not pro- vide for representation of the public or the state. Many of 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 ex- cess decrees, the act is to be commended as providing at so early a period in the history of irrigation a spe- cial procedure whereby most of the rights were de- termined. Distribution of Water. By an act passed in 1879 Colorado divided its irrigated territory into a number of districts generally comprising a designated creek, or creeks, and tributaries. For each district there was provided a water commissioner to be appointed by the governor from persons recommended 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 60 WESTERN WATER LAW of each, and in so doing to wholly or partially shut the headgates of the later appropriators 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 interference with any headgate ad- justed by the water commissioner is a misdemeanor subject to a fine of $300, or an imprisonment 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 persons 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 examina- tion of applicants. The division engineers receive $125 per month when actually employed and traveling ex- penses not in excess of $500 per annum, 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 rela- tive to the distribution of water. They may make regulations to secure the fair apportionment 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 them- selves injured may appeal from the acts of water com- missioner to division engineer and from the latter to the state engineer. WATER RIGHT LEGISLATION 61 It will be readily appreciated that the task of dividing water among ditches with valuable crops at stake is a serious undertaking, and on account of the daily variations in the flow of mountain streams re- quires much local study and experience. _ColoradoJs / plan of having a small number of great divisions along / drainage lines each with a state official having juris- diction therein, and a number of districts within each division of such size that the diversions may be regu- lated 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. Wyoming. Acquirement of Rights. The office of territorial engineer in Wyoming was created in 1886 but the ex- isting 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 super- intendent at the head of each, the office of state engi- neer is provided, and a Board of Control consisting of the state engineer, as president, and the four divi- sion superintendents, is given "supervision of the waters of the State, and of their appropriation, distri- bution and diversion" subject to legislation thereon. The statutes adopted in 1890 provide a method of acquiring rights very different from any then existing i.a. this country. Instead of posting a notice or start- ing work and thus initiating a right, the intending ap- propriator is required to make application to the state engineer for permission to make the appropria- tion. The application is made on a blank form fur- nished by the state engineer and among other things 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 con- struction and the time required for complete applica- tion of water to proposed use. If for irrigation, the application must also give the legal subdivisions of 62 WESTERN WATER LAW 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 con- flicts with existing rights, or threatens to prove detri- mental to the public interest in which cases he must reject the application. If approved, the application will be so endorsed and returned to the applicant and constitutes his au- thorization to begin construction and perfect the ap- propriation. In cases of applications in excess of 25 second feet, or to reclaim over 1000 acres, the state engineer, be- fore 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 required that actual construction must begin within one year from date of approval and that the construction must be com- pleted within five years. The state engineer has au- thority 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 completion of works under an issued permit. 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 dig- trict court. Applications must be accompanied by maps pre- par^ed 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 com- pletion 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 set- ting forth the amount of the appropriation and the WATER RIGHT LEGISLATION 63 number and 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 ap- propriation of water for storage in reservoirs was adopted. The steps outlined above must be followed except that a description of the land is 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 allow- ing them to so do. 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 reservoir, the primary permittee. The 1903 statute also provides for special supervision by a water com- missioner 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 protection of the various interests involved, the state engineer may ap- point an assistant engineer to superintend and direct the construction work on dams for such reservoirs. Wyoming has thus introduced a sensible business- like procedure for controlling new rights to the use of water. Those accustomed to the absolute want of super- vision in states still following the California method of posting notices are inclined to be suspicious of the Wy- oming method when first brought before them. They are especially fearful of the seeming great authority in the hands of the state engineer. An inspection of the records, however, will show so few applications rejected in Wyoming that the number is negligible. As the question of whether there are any unappro- priated waters in a stream is so debatable and as the opportunity for flood waters and seepage and return waters is so great, the state engineer, in cases wheic there seems to be but little surplus approves the ap- plication with the following notice stamped upon it : The records of the state engineer's office show the waters of to be largely appropriated. The appro- *4 WESTERN WATER LAW priator under this permit is hereby notified of this fact and that the issuance of this permit grants the right to divert and use the surplus or waste water of the stream and confers no rights which will interfere with or impair the use of water by prior appropriators. Definition of Rights. Although new to American legislation the Wyoming method for the acquirement of rights is far less novel than her method for the definition of rights. In 1886 Wyoming, then a terri- tory, adopted the Colorado system of adjudication but rejected it in 1891 for its present system. Instead of leaving the determination of water rights to chance cases between two or more claimants as in California, 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 irriga- ble thereunder and measures the stream and carrying capacity of the ditches. A printed form, called "proof of appropriation," is sent to each claimant. The pres- ent practice is to have the division superintendent 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 testimony or "proofs" by the division superintend- ent, notice is given of a time and place at which the evidence thus assembled shall be open to inspection of the various claimants. A regular procedure is pro- vided for contests and hearings before 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 WATER RIQHT LEGISLATION 65 its first regular meeting thereafter, jthe Board exam- ines all the evidence and enters an order establishing the priorities of the water rights, their amounts, and the character of use of each. For irrigation 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. Ap- peals from the order may be taken to the district court within sixty days. Distribution of Water. As stated above, Wyom- ing has been divided into jour divisions along drain- age lines. The _sugertoend^nti^tHeireof 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 dis- tricts where necessary and these districts are in charge of water commissioners upon whom the actual duty of closing headgates rests. The entire Wyoming pro- cedure 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 commissioner of public lands and buildings. In 1911 the name of the board was changed to "The State Board of Irrigation, Highways and Drainage." The board appoints an hydraulic engineer as secretary and he is known as the state engineer. The strik- ing 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 66 WESTERN WATER LAW as those of Wyoming. The application is made to the board (the secretary, or state engineer, acting for the board) on a printed form furnished by the state engi- neer, and when in proper form is 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 pro- vided, 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 per- fected appropriation that is actual use, or potential use, of water on the land. It is rather an empty ex- pression from any practical point of view and is one instance where the Wyoming section was not followed. Unfortunately for the state the expression was con- strued 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 applica- tion. 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 de- prive 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 ap- proved without any notice to the land owner. In the case cited, Frank had described thousands of acres belonging to residents of the Farmers' Irri- gation 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 sec- tion was not amended until 1911, when the following words were inserted, " * * * 2nd no permit to irri- gate 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 offi- cer legally qualified to take acknowledgements." WATER RIGHT LEGISLATION 67 Definition of Rights. The "definition of the pri- orities 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 Wyoming the statute pro- vides 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 ap- propriation" 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 prob- able that in some cases larger acreages were allowed than should have been. After the completion of the determination "certifi- cates of appropriation" are issued to appropriators, as in Wyoming, the maximum allotment for irriga- tion 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 su- perintendents 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 divi- sions into subdivisions and the latter into districts as they believed necessary. The board appoints one water commissioner for each district. (Prior to 1911 the title was "under-assistant.") In 1911 it was pro- vided that appropriators on April first of each year must give the division superintendent a list of the lands to be watered during the year. 68 WESTERN WATER LAW 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 sys- tem introduced by Wyoming of making intending appropriators apply to the state engineer on printed forms furnished by him. The instructions issued by the state engineer state that "application will not be ac- cepted nor permit granted thereunder, unless the following instruction 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 pre- pared 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 public welfare, etc., has not been delegated to the state engineer, but he must approve all applications made in proper form and contem- plating application to beneficial use. The maximum allowance for irrigation purposes is one second foot to 50 acres, and the maximum time allowance to complete the construction of works is five years and that for applying water to beneficial use four years in addition thereto. (The state engineer has no authority to extend the maximum time allowance. Such authority is given in other states and should be as the limits set are too small for the larger pro- jects.) It is further required that one-fifth of the con- struction 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 ex- cess of 25 second feet construction work must be com- menced 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, WATER RIGHT LEGISLATION 69 must be filed within the said sixty days with the state engineer as a guarantee that the work will be com- pleted as provided in the permit. The 1903 Idaho statute was the first to provide a regular procedure for proofs of completion of con- struction 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 contain- ing 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 diver- sions in excess of 50 second feet the facts set forth in the notice must be certified to by a competent irri- gation engineer. The notice is published by the state engineer in a paper of general circulation in county where works are situated and such publication also states the time and place of submission of final proof. Before the time set the state engineer has the works inspected and after such time, and the consideration of any protests which may be made, he issues a cer- tificate 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 confirm- ing such use. The date of priority of right under such license is that of filing of application in state engi- neer'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 ot a stream which had been partly adjudicated. 70 WESTERN WATER LAW It was also provided that whenever a suit to adjudi- cate 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 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 Irriga- tion & Land Company v. Stewart (77 Pac. 25) the pro- vision for requesting the state engineer to examine and report upon the physical conditions was held to be merely directory and not mandatory. The prepa- ration 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. "For the purpose of admin- istering and controlling the public waters," Idaho is divided into three water divisions with limits fixed by statute. The governor appoints a water commis- sioner for each division. The three water commis- sioners and the state engineer compose the state board of irrigation. The board "shall devise all needful rules / for the distribution of water." It divides the divisions/' into water districts for which water masters are electe^ by the water users of the district. 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 legis- lature, in 1852, gave the control of all "water privi- leges" to the county courts and authorized them to WATER RIGHT LEGISLATION 71 "exercise such powers as in their judgment shall best * * * subserve the interests of the settlements in the distribution of water for irrigation or other pur- poses." 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 legis- lation was adopted in 1880 and in 1897 the latter following the California statutes. The office of state engineer was also created in 1897 but he had little au- thority 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 Nebraska. 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. The 1903 statute also authorized the state engi- neer to reject an application which he deemed detri- mental to the public welfare. Following such an ac- tion in 1904 the state engineer was reversed by court decree and, again, the case was not appealed and the 72 WESTERN WATER LAW 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 applica- tion is not for the most beneficial use of the water. The question of "best beneficial use" and the feasi- bility of projects is to be answered by data being col- lected by a Conservation Commission. By an amendment of 1911 Utah follows the Idaho / statutes regarding time of beginning and completing work and application to beneficial use, but the state engineer is authorized, for good cause shown, to ex- tend the five-year and four-year periods to a maximum aggregate allowance of fourteen years from date o/ V 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 engineer making a complete survey of the "river system or water source" and collecting all necessary data. After completion of survey a state- ment is filed with clerk of district court who mails form for statement of claim to each claimant. The state engineer tabulates the claims and files such with clerk of court. The court may appoint a referee to t?ke further testimony. 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 com- pleted 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. WATER RIGHT LEGISLATION 73 Distribution of Water. The state engineer is authorized to divide the state into water districts and a water commissioner 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 Senator New- lands 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 in- fluence 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 Re- clamation Act is recited and in addition many para- graphs presenting the opportunities for irrigation de- velopment in Nevada and the need of a determina- tion of rights before national aid could be given. Acquirement of Rights. The 1903 statute con- tained no provision for the acquirement of rights but it was supplemented in 1905 by sections so providing copied from the Wyoming and Nebraska statutes and containing the requirement of publication first adopted Li 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 as follows : In all parts of the state where water cannot be beneficially used for irrigation for a greater period than six months each year the maximum quantity appropriated for each acre shall not 74 WESTERN WATER LAW exceed three (3) acre-feet per annum. In all parts of the state where water is beneficially used for irrigation for a period of nine months or more in each year, the maximum quantity of water that may be appropriated shall not exceed three (3) acre- feet for the five months beginning May 15th and extending to October 15th of each year, for each acre of land supplied, and the maximum quantity of water that may be appropriated for each acre during the remainder of each year shall not exceed one- half of one-acre foot multiplied by the number of months of each year other than the five months hereinbefore named, during which water is so beneficially used Definition of Rights. The 1903 statute provided a method for defining rights which is still in force and which follows the Wyoming system except that no de- tails of procedure are prescribed. JThe state engineer, is alone responsible for the work. He makes the sur- veys, collects the necessary data, tabulates the "proofs of appropriation" submitted by claimants, determines the priority and amount of each claim, and finally issues a certificate to each water right owner. The 1903 act allowed two years after the determination in which aggrieved parties might bring action in the courts, but the time was reduced to .one year in 1907.' 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 in- vestigations. In 1903 the state engineer was made a member and secretary of the board. The board has authority to divide the state "into such water divi- sions or water districts as seem to it advisable," and may appoint water commissioners to divide the waters of streams according to priorities. New Mexico, North Dakota, Oklahoma and South Dakota. In accordance with resolutions adopted by the legislatures of Oregon and Washington in 1903 a commission was appointed by the governor of each state to draft a water code. As a result of a joint ses- sion of the two commissions with officials of the United States Reclamation Service, Mr. Morris Bien, super- WATER RIGHT LEGISLATION 75 vising 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 gen- erally referred to as the "Bien Code," and although Mr. Bien aimed to take what he considered best from all the existing codes, most closely follows the 1903 Utah statute. It was not adopted in Oregon and Washing- ton 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 re- jection. Notice of application is published and evi- dence of interested parties considered. In case of approval the state engineer fixes the time for comple- tion of works and for application to beneficial use, not exceeding five years and four years additional respect- ively 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 deal- ing with the determination of water rights is restricted to five short sections. The state engineer makes "hydrographic surveys and investigations of each stream system * * * obtaining 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 delivers what data is deemed necessary to the attorney general who enters "suit on behalf of the state for the determina- tion of all rights to the use of such water, in order that the amount of unappropriated water subject to disposi- tion by the state under the terms of this act may be- come 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 76 WESTERN WATER LAW the necessary 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 private 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 commission is ap- pointed for each division and the commissioners with the state engineer form the board of water commis- sioners. The state engineer divides each division into districts and the commissioner appoints a water master for each district. Oregon. As stated above, Oregon appointed a "water code commission" 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 recom- mended the "Bien Code" but it did not pass. In 1909, following the recommendation of a commission which had at 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 Wyoming. The state is divided into two water divisions with a division superintendent in charge. The two super- intendents and the state engineer form the board of control. Contrary to the uniform practice elsewhere all three offices are elective instead of appointive. The only striking departure from the Wyoming system is the procedure for defining rights. The sec- tions in regard thereto are almost word for word the Wyoming sections up to and including the determina- tion of rights by the board of control. Instead of consid- ering such final unless appealed from, the Oregon stat- ute provides that a certified copy of the determination and the original evidence shall be filed with the clerk of the circuit court which fixes a time for hearing the de- termination. The court after the necessary hearings WATER RIGHT LEGISLATION 77 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 boarcTof its own motion but by petition of one or more water users upon the stream. As the board always has before it more petitions for determinations 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 and the Dakotas. The Oregon statute, however, provides 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 passage, to the amount of v/ater applied to beneficial use in a reasonable time as fixed by the board of control. This part of the stat- ute is of very doubtful validity as it is generally un- derstood that the legislature is powerless to limit a vested right and the riparian right does not depend upon use. Review of Legislation. In May, 1904, the state engineers 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 and Nevada rights are de- termined by a state engineer or engineering board, subject to review by the courts on appeal. The method has the advantage of freedom from embarrassing pro- cedure 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 comparative speed and at low cost. 78 WESTERN WATER LAW In Colorado, Idaho, Utah, North Dakota, Okla- homa, South Dakota and New Mexico 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 adjudi- cation. 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 adminis- trative method has been upheld by the supreme courts of Wyoming and Nebraska, and the court method has been held unconstitutional in Idaho the only case in which it has been before the courts (again except- ing Colorado). The constitutionality of the Wyoming statute pro- viding for the new system of defining rights was ques- tioned 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 following pertinent statement regarding the efficiency of the two methods : 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 in- stance, solve the questions involved, with due regard for private and public interests, conduct the requisite investigation, and make the ascertainment of individual rights, with greater facil- ity, at less expense to interested parties, and with a larger de- gree of satisfaction to all concerned. In the same case it was contended that although the system might be valid for defining rights which had accrued subsequent to the adoption of the con- stitution, it was certainly invalid for defining rights accruing prior thereto and the Court answered : It follows from what has already been said that in this re- gard there exists no difference between claimants whose rights accrued prior to, and those acquiring rights after, the adoption of the constitution and the statute in question. In Crawford v. Hathaway (93 N. W. 781) the validity of the Nebraska statute was atacked and the Supreme Court said : The Wyoming statute, from which ours is borrowed, has been subjected to judicial construction and is upheld by the WATER RIGHT LEGISLATION 79 Supreme Court of that State on the express ground that the powers authorized therein are not judicial, but administrative. * * * \fy~ith this authoritative construction of the statute, and a decision of the very question raised in the case at bar upon rea- soning 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 appropriation, dis- tribution and diversion of water. This is obviously an adminis- trative rather than a judicial function. In Bear Lake v. Budge (75 Pac. 614) the Idaho Supreme Court held invalid that part of the 1903 stat- ute providing for the initiation by a water commis- sioner of suits to determine water rights, in the follow- ing 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 interest in a suit to quiet title or to determine adverse interest in property not claimed by or belonging to him or the state. The new Oregon method is designed to meet the objections of those who contend that only a regular judicial tributnal should establish water rights- As stated above, the 1909 Oregon statute provides for an immediate affirmance or modification of the determina- tion of the board by the circuit court. Regarding this feature Mr. Lewis, State Engineer of Oregon, in his third biennial report (1909-1910) states: It is doubtful if the requirement of a confirmation by the court strengthens the water code. On the other hand it is argued that this simply prolongs the proceeding unnecessarily and that the determination of the board, the members of which are supposed to have a special and technical knowledge of the conditions involved, should be final without the intervention of the court, except upon appeal. It is also argued that such appeal should only be allowed to the Supreme Court thus saving the delay occasioned by taking the matter first into the Circuit Court and then to the Supreme Court. Acquirement of Rights. It has been stated that the following states have state engineers to whom ap- plications on furnished printed forms must be made by intending appropriators : Wyoming, Nebraska, Idaho, Utah, Nevada, New Mexico, North Dakota, Oklahoma, 80 WESTERN WATER LAW South Dakota and Oregon. The state engineer of each of the above states will send an application blank and instructions on request and every intending appro- priator should follow the directions carefully and rigid- ly and thus avoid later trouble. To the above list Colorado should be added as the state engineer there issues instructions regarding maps and statements to be filed within sixty days after the commencement of surveys or actual construction of any ditch or reservoir. Texas requires the filing of a map and statement within 90 days after commencing construction, in the office of the county clerk of the county where headgate is situated. The remaining western states, Arizona, Califor- nia, Kansas, Montana and Washington still follow the crude practice of posting notices. At the close of the first chapter of this book an example of a California water notice, accepted by the Supreme Court, was given to show how little definite information need be stated in the notice to meet the lequirement. The following form of notice has been used by the United States Reclamation Service in the states last mentioned and with slight changes and omissions can be adapted to any case. Form of Notice of Water Appropriation. claims at the point where this notice is posted, all the unappropriated waters of the River, both surface and underflow, more specifically stated as amounting to cubic feet per second* This notice is posted on 190 on a tree on the bank of the River, in Sec. T R M., at a point distant feet and bearing from the corner of said sec- tion. The water is to be used for irrigation, domestic, power, mechanical and other beneficial uses in and upon lands situated in counties and located in the following town- ships The water hereby appropriated is to be stored by means of a dam located in Ses T R In a reservoir located in Ts .R and will be conducted to the points of intended use by means of canals, flumes, pipes, tunnels, or other appropriate means of convey- ing water, of the following dimensions: or such other dimensions and grade as will give capacity of cubic feet per second. *In California the amount should be stated in Inches under four-inch pressure. In Arizona the territorial laws (first state legis- lature now in session) require that a copy of the notice must be recorded in the office of the county recorder of the counties in which the ditch lies and WATER RIGHT LEGISLATION 81 also in the office of the Secretary of the Territory no time limit is specified. In California and Kansas, a copy of the notice must be filed in the office of county recorder (county clerk in Kansas) of the county where posted in ten days and work must begin in 60 days. In Montana a verified copy must be filed in the office of county clerk of county where posted in 20 days and work must begin in 40 days. In Washington a copy of the notice must be filed in office of county auditor of county where posted in ten days and work on stor- age works must begin within three months and on diversion works within six months. In Montana, in case of appropriation from adjudicated streams, the new appropriator within 40 days after completion makes application to clerk of district court who orders an examination by a competent engineer. A hearing after published notice is held and the court limits the appropriation in accordance with its findings. The procedure was adopted in 1907. Montana has had a state engineer since 1903 but his duties are confined to operations under the Carey Act. In view of the sim- ple procedure in regard to the acquirements of rights existing in other states having state engineers the Montana innovation is both inexplicable and inexcus- able. Any logical procedure should precede construc- tion and not follow it. Aside from the information and warning regard- ing the amount of unappropriated water an intending appropriator receives in the states requiring applica- tions to a state engineer, he is materially assisted by definitely knowing the time limit for construction and application to beneficial use. In the states allow- ing the posting of notices the statutes merely provide that the right shall relate back to the date of posting if the work is completed with reasonable diligence to determine which, in case of conflict, means litigation. Instances do not often arise where the state engi- neer is called upon to reject an application for the rea- son of probable detriment to the public welfare. As previously stated this authority was given to the state engineer by the 1903 Utah statute but was interfered 82 WESTERN WATER LAW with by the district court and was repealed in 1905. In the recent Oregon case of Cookinham v. Lewis (114 Pac. 88), decided Mar. 7, 1911, the provision of the Oregon 1909 statute authorizing the state engineer and board of control to reject an application where the proposed use is a "menace to the safety and wel- fare of the public" was upheld. It is noteworthy that Utah, which was originally characterized by central- ized authority, should deny this power to a state offi- cial, and that Oregon, where the practice is so new and so foreign from that which preceded, should uphold it. Water rights initiated by application to the state engineer are based upon beneficial use and perpetual unless abandoned or forfeited through nonuse as was the case prior to the adoption of the new legislation. The only exception is the right for power purposes which has been limited in California (1911) and Ore- gon (1909) to a forty year term and on which an annual tax depending upon its magnitude is levied. The legislation regarding power rights will be consid- ered in a later chapter dealing with rights of way over public land. 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 regarding existing rights and no system worth considering regulating new appropria- tions, as in California, the new plan provides a full determination of existing rights in a single proceed- ing, the proper distribution of water by state officials according to such determination, and a complete con- trol 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 topog- raphy 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 New Mexico 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 considered as developed within the various west- ern states and no mention has been made of the right to use the waters of interstate streams. A little con- sideration only is necessary to recall 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 Wyoming meanders across Idaho, crosses and re-crosses the Idaho-Oregon boundary line, flows through southeast- ern Washington 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 confluence 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. 8S 84 WESTERN WATER LAW 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 regarding their use. The interstate streams which have been in controversy 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 Wyom- ing therein held (as reported in a head note) : . 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 construction 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 Mon- tana and flowing into Wyoming. In Howell v. John- son (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 likewise protected in Hoge v. Eaton (135 Fed. 411) wherein appropriators from Sand Creek in Wyom- ing 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 divi- / sions. It is the same in all states through which the streams so \ diverted may pass. The waters of Sage Creek were again in contro- versy in Bean v. Morris which was decided by the WATER RIGHTS ON INTERSTATE STREAMS 85 United States Supreme 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 legislation to the contrary, that the states were will- ing to ignore boundaries, and allowed the same rights to be ac- quired 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 consideration. The doctrine of appropriation has prevailed in these regions probably from the first moment that they knew of any law, and has continued since they became territory of the United States. It was recognized by the statutes of the United States, while Montana and Wyoming were such terri- tory, * * * and is recognized by both states now. Before the state lines were drawn, of course, the principle prevailed between the lands that were destined to be thus artificially divided. Indeed, Morris had made his appropriation before either state was admitted to the Union. The only reasonable presumption is that the states, upon their incorporation, con- tinued the system that had prevailed thereofore, 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 is thought to still exist in Montana. The conflict of doctrines was before the Federal Circuit Court in Anderson v. Bassman (114 Fed. 14) wherein the plaintiffs were farmers using the waters of the West Car- son River in Nevada and the defendants were irrigators from the same stream in California. In the decision Judge Morrow points out that the doc- trine 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 ascertain individual rights of priority but the case was decided 86 WESTERN WATER LAW 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 charging 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 Reclama- tion 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 owners along the river deprived of its surface flow but all land owners within the drain- age area were deprived of the beneficial influence of the subterranean flow. Colorado contended that under the provisions of its constitution it is the owner of all waters within its borders. It further contended that the Arkansas River is substantially two rivers the Colorado Ar- kansas rising in the Rocky Mountains 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 sets forth the vast acreage of public lands to be re- claimed under the provisions of the Reclamation Act, the reliance of the arid west upon the doctrine of prior appropriation, the inapplicability of the riparian doc- trine where irrigation is necessary, the contention of Kansas that it is entitled to have the waters of the Arkansas flow uninterrupted and unimpeded into Kansas, the contention of Colorado that it is the owner of all waters within the State, and closes with the following: WATER RIGHTS ON INTERSTATE STREAMS 87 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 de- feat the object, intent, and purpose of the reclamation act, pre- vent 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 longi- tude, and would otherwise work great damage to the interests of the United. Justice Brewer, who wrote the opinion, after showing 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 naviga- bility of streams is first examined with the conclusion : It follows from this that if in the present case the national government was asserting, as against either Kansas or Colo- rado, that the appropriation for the purposes of irrigation of the waters of the Arkansas 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 appropri- ation of the waters by Kansas or Colorado affects its navigability. The court then proceeds to examine "the ques- tion whether the reclamation of arid lands is one of the powers granted to the general government," pays par- ticular attention to that part of section three of article four of the constitution reading: "The congress shall 88 WESTERN WATER LAW have power to dispose of and make all needful rules and regulations respecting the territory or other prop- erty belonging to the United States * * *," and concludes that the section grants to congress no legis- lative control over the states, but gives it authority over federal property within their limits. It is stated that the constitution is silent regarding the reclama- tion of arid lands as no such problem existed at the time of its adoption, 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 de- clared the Reclamation Act unconstitutional. The validity of that Act, however, was not in issue, but the question of national control that is, the superior right of congress to legislate regarding the reclama- tion of arid lands was. This should be clear from the following quotation which is from the paragraph 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 hereto- fore 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 legis- late 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 legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found, main- ly 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 WATER RIGHTS ON INTERSTATE STREAMS 89 the absence of a definite grant of power, the national govern- ment 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 Company (188 U. S. 545) the court continues: But it is usless to pursue the inquiry further in this direc- tion. 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. - 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, acreage 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 un- doubtedly due to irrigation. A like examination is made of the census statistics for the counties of west- ern Kansas with the conclusion 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; 90 WESTERN WATER LAW 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 Kansas; 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 portions 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 irri- gation 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 de- pletion 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 Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irrigation purposes. The decree which, therefore, will be entered will be one dismissing 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 decree will also dismiss the bill of the State of Kansas as against all the defendants, without preju- dice to the right of the plaintiff to institute new proceedings whenever it shall appear that through a material increase in the depletion of the waters of the Arkansas by Colorado, its cor- porations or citizens, the substantial interests of Kansas are being injured to the extent of the destroying the equitable ap- portionment of benefits between the two states resulting from the flow of the river. It must be emphasized that the Supreme Court in its decree did not attempt to make an equal division of the waters of the stream, but rather an equitable apportionment of benefits. Neither the rule of prior appropriation nor that of riparian ownership is fol- lowed, but the case is allowed to rest on the "car- dinal rule of equality of right" not to the means but to the results. WATER RIGHTS ON INTERSTATE STREAMS 91 Legislation Regarding Interstate Streams. In 1911 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 in the same year authorized a joint legislative committee to investigate the interference by the fed- eral government or any state, corporation or indi- vidual with the control by Colorado of the waters within its borders. Wyoming, likewise in 1911, au- thorized its attorney general, under the direction 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 interstate streams." The only state which provides by statute for the recognition of diversions from interstate streams is Oregon. By the Act of February 23, 1911, it is pro- vided that no permit for the appropriation of water shall be denied because the point of diversion, or any p^ f 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 engi- -n\e$ neer may in his discretion, decline to issue a permit where the point of diversion described in the applica- tion is within the State of Oregon but the place of beneficial use in some other state, unless under the.:j Q> laws of such state water may be lawfully diverted within such state for beneficial use in the State of Oregon." Legislation similar to that of Oregon should be enacted by all the states where rights are initiated by an application to the state engineer. Cases are con- stantly arising where applications are made for pro- posed systems lying partly within two states. With- out definite legislation the state engineer has no guide to action some engineers have approved such appli- cations, others have rejected them. In New Mexico the territorial engineer approved an application for the irrigation of lands in New Mexico by a ditch head- ing 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 de- 92 WESTERN WATER LAW cided that "the territorial engineer was without au- thority to approve the application in question." (Tur- ley v. Furman, 114 Pac. 278, decided March 4, 1911). Not only is legislation necessary in regard to the initiation 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 divid- ing the public waters among ditches entitled thereto. At present the only means provided by statute for distributing the waters of streams is the authority 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 be- yond 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 proceeded to take all the water desired while the ditches heading below in Nebraska and having earlier rights had their supply 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 appro- priated 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 prohibitive, but the situation on many streams is sufficiently serious to warrant drastic ac- tion. The 1911 California legislation referred to above is copied from a statute adopted in New Jersey in 1905. The constitutionality of the latter was upheld WATER RIGHTS ON INTERSTATE STREAMS 93 by the United States Supreme Court in Hudson Water Company v. McCarter (209 U. S. 349). It is spe- cifically stated in the opinion 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 important to note that most of the earlier decisions regarding rights on interstate streams lay down the rule of prior appro- priation regardless of state lines in the absence of statutory provisions to the contrary. The argument against such prohibitive legislation must be based on reasons of policy rather than those of law. As sug- gested in the quotation from Bean v. Morris above, each state stands to lose just as much as it can gain by such statutes. Summary. From a consideration of the cases dealing with interstate streams (the leading ones only being mentioned above) the following conclusions are justified. The state and not the nation is superior re- garding legislation concerning 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 appro- priation it is very probable that that doctrine will be applied regardless of state lines. Between private appropriators in two states, one or both of which re- cognize the doctrine of riparian rights, the priority of appropriations will not be established, but the waters will be distributed on an attempted equitable basis sug- gested by the particular facts of the case. In a con- \ troversy between two states in their soverign capaci- ties the principle established in Kansas v. Colorado Avill 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 bene- ' fits. Legislation forbidding the diversion of waters from within a state to another state is probably legally sound but is based upon such shortsighted policy that It cannot prevail. CHAPTER VIII. RIGHTS OF WAY OVER PUBLIC LANDS FOR DITCHES AND RESERVOIRS. As already stated in the first chapter, the first congressional legislation regarding rights of way over the public domain was the Act of 1866, now Sec- tion 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 pub- lic 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 con- nection with vested water rights, it would seem that no right of way would attach until the completion of the works so that the water could be diverted. The California Court of Appeals has held otherwise, how- ever, in de Wolfskill v. Smith (89 Pac. 1001.) 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 94 RIGHTS OF WAY 95 posted. Although the court points out that the post- ing of a notice "does not constitute an appropriation" and that the "right to water depends upon * * * making an actual appropriation 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. It is certain that as against the government the water right is not considered vested until the diversion works are completed and ready for use. Under the provisions of the Reclamation Act the public lands within a reservoir site, known as Alkali Lake, in An- telope 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 intended 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 $.ct of 1866. The government, in the in- terest of the Reclamation Service, thereupon insti- tuted suit and the company was enjoined from pros- ecuting 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 com- pletion 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 com- pletion 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. 96 WESTERN WATER LAW 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 possession, 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. JJntil the com- pletion of this work, or, in other words, until the perform- ance of the condition upon which the right to forever main- tain posession is based, the person taking possession has no title, legal or equitable, as against the government. Regardless, therefore, of the doubtful logic of the de Wolfskill case, no one planning any material diversion work should rest upon the Act of 1866, but should secure his right of way 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 irrigation ditches and reservoirs upon the approval of applications by the Secretary of the Interior. Such applications must be filed with the register 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 regula- tions 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, Washington, D. C.) The right of way granted extends, where necessary for construction on maintainance, "fifty feet on each side of the mar- ginal 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 construction work, but it has been held that this right is for construction work only and not for repairs or improvements. The act specifically provides that "the privilege herein granted shall not be construed to interfere RIGHTS OF WAY 97 with the control of water for irrigation and other purposes under authority of the respective states and territories." The land office accordingly 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 forfeitures, the Secretary of the Interior has held that the jurisdiction of the Interior Department is lost upon the approval of an application, and any action looking to the cancella- tion 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 re- linquished. 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 ap- proval of the department of the government having jurisdiction of such reservation." Under this pro- vision the Forest Service has prepared special regu- lations 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 appli- cation has been approved by the Secretary of the In- terior, or unless permission for such work has been specifically given, and as a condition precedent to such approval the applicant must enter into such stipulation and execute such bond as the Forest Serv- ice may require. For ditches and reservoirs occupy- ing part of government reservations other than national forests, no application for right of way will be approved by the Secretary of the Interior until 98 WESTERN WATER LAW 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 contem- plated 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 authority 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 ur,ed as is necessary for construction, 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, authorizes the use of rights of way granted under the Act of 1891 for purposes subsidiary to the main pur- pose 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 transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose \of irrigation. In all cases the applicant must prove to the satis- faction of the Interior Department that the intended RIGHTS OF WAY 99 use, other than irrigation, is really subsidiary thereto, and the proof must be especially clear where the de- velopment of power is contemplated. Act of February 1, 1905 : jection four of the Act of February 1, 1905, authorizesltne Secretary of the In- terior 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 ma- terial, earth, or stone for construction or other pur- poses, and that the right of way is restricted to the strip necessary for the construction and maintenance of the works. Applications are made in the same way as those under the Act of 1891. Act of February 15, 1901: Although other uses are specified in this act, it is now of importance only in regard to rights of way though the public lands and reservations for reservoirs and canals for the gen- eration 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 dis- cretion. 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 construction or other purposes. For permission to occupy land outside of the na- tional forests applications must be made in the same way in general as under the Act of 1891. Where the entire right of way lies within an Indian Reservation the application must be filed with the Commissioner of Indian Affairs. Rights of Way for Power Purposes Through National Forests. The Act of February 1, 1905, transferred the ad- ministrative control of the national forests from the Interior Department to the Department of Agricul- ture, so that the revocable license for electrical plants 100 WESTERN WATER LAW (ditches, reservoirs, transmission lines, etc.) is now given under the authority of the Secretary of Agricul- ture. The Use Book Water Power of the_JLor.est Service sets forth in detail the. regulation and in- structions regarding such licenses or "permits." The first, second, fifth and sixth paragraphs of the 1911 regulations are as follows : REG. L-l. Preliminary water power permits will allow the occupancy of the lands of the United States within national forests for the purpose of securing the data re- quired for an application for final permit and for such con- struction as may be necessary to preserve water appropria- tion during that period. Final water power permits will allow the occupancy and use of such lands for the construc- tion, maintenance and operation thereon of works for the main purpose of the generation of electrical power. Prelimi- nary or final permits for commercial water power works, or for non-commercial water power works of a capacity in ex- cess of one thousand (1000) horsepower, will be granted, extended, and renewed only by the Secretary of Agriculture. Permits for non-commercial water power works of a capacity of one thousand (1000) horsepower or less, and for trans- mission lines, not a part of any water power works covered by a water power permit will be granted, extended and re- newed by the District Forester. The Secretary of Agricul- ture alone may revoke water power permits. REG. L-2. The "non-commercial water power works" will be applied to water power works owned and used solely b> the permittees for one or more of the following purposes: In the operation of their own mines, or in the milling and reduction of ores therefrom; as auxiliary to irrigation works owned and operated by permittees; temporarily, in the construction of other works for which permission has already been granted the permittees; by municipalities for municipal purposes; or for such other miscellaneous uses not herein enumerated as may be determined by the Secretary of Agri- culture to fall within this class. No charge will be made for the use and occupancy of lands for non-commercial water power works. All other water works will be termed "com- mercial." " * * * REG. L-5. Occupancy and use of national forest lands is the sole privilege granted under a water power permit. In the issuance of such permits no attempt will be RIGHTS OF WAY 101 made tc adjudicate water rights, since water rights are acquired under state laws and adjudicated by the courts. Therefore no protests against the granting of an applica- tion, if based upon alleged lack of water rights, will be con- sidered; nor, in general, will any allegation that the time of beginning or completion of construction has been or is delayed by litigation over water rights be accepted as a sufficient reason for granting any extensions of time. REG. L-6. Unless sooner revoked by the Secretary of Agriculture, a final water power permit shall terminate at the expiration of fifty years (50) years from the date of the permit, and may then be deemed to be an application by the permittee for a new permit to occupy and use such lands as are occupied and used under the original permit: Pro- vided, That the permittee shall, not less than nor more than four years prior to the termination of the permit formally notify the Secretary of Agriculture that it desires such new permit, and will comply with all laws and regulations at such time existing, regulating the occupancy and use for water power purposes of lands of the United States within the national forests. Applications must be filed with the District For- ester of the district in which the lands to be occupied are situated. In approving an application the time for beginning and completing construction is speci- fied. Before a final permit for commercial water power works can be secured, the applicant must execute a stipulation providing among other things for the pay- ment annually in advance of such charges as may be required by the Secretary of Agriculture, for the installation and maintenance of approved hydraulic measuring devices, and for the inspection of books and records showing stream flow and reservoir data and amount of electric energy generated. Special State Legislation Regarding Water Rights for Power Purposes. As previously stated, water rights for all pur- poses are generally considered to exist as long as the use continues, but water rights for power purposes have been limited to fixed periods in California and Oregon. The latter State in 1909 fixed the period at forty years with a preference right of renewal, for a period then 102 WESTERN WATER LAW fixed by law, and California, at the regular legislative session of 1911, fixed the period at twenty-five years, but changed it to forty years at the special session of the same year. Each State by its new legislation levies an annual charge for power development de- pending upon its magnitude. This special water power legislation was undoubt- edly suggested by the regulations of the Forest Serv- ice. It is an attempt to regulate the so-called "power monopoly" the underlying idea being that no per- manent rights should be given and that the power company should in a small measure share its earnings with the State. Regarding the Oregon legislation State Engineer Lewis in his Third Biennial Report, (1909-1910, pages 82, 83) says : The annual tax idea seems to be based upon the fact that water is the property of the public, and those who enjoy a right to its use should pay something to the state for the privilege. It was not recommended or approved by the Oregon Conservation Commission. Whether the basis for electric power charges will be to "charge all the traffic will bear" as in railway rates, is a matter of uncertainty. The price of electric power is being constantly lowered through competition with steam producer gas, etc., where the cost of production has been greatly reduced in recent years through improvements in methods and machinery. Only these water powers will be developed where the cost of production will permit successful competition with these other power producing agencies. If, in addition to the necessary development cost a heavy annual charge per horsepower must be paid the state, it is conceivable that such charge may defeat rather than promote the conserva- tion idea, as well as retard development. We will be con- suming our limited supply oi ! coai, for economic reasons, while cur water power remains undeveloped and goes to waste year after year. Comments on Water Power Legislation. A little reflection should suggest that the present special legislation regarding water power falls far short of the desired goal the protection of the public-. When the right of way act of February 15, 1901, was RIGHTS OF WAY 103 passed, little was known of practical rate fixing and the revocable license appealed to many as a needed curb. Later the annual charge was fixed by depart- mental regulation. The legislation and regulations are especially designed for the "commercial" power com- panies that is, those engaged in public service. The right of the state to regulate public utilties and fix the rates of public service companies is now undis- puted. For years the rates of water companies have been fixed throughout the entire country, later the railroads were taken in hand, and now public service commissions in a great number of states have been em- powered to fix the rates of every public service com- pany. The movement is so wide-spread and has been so generally accepted without litigation by the com- panies involved that its adoption by every state in the near future is certain. JBeing assured that the state can and will insist upon rates which are reasonable, all_ that remains is to prevent the state or nation from giving to a public service company a property right which may be cap- italized. Thus far no such preventive action has been taken. Although the permit to occupy the public lands is revocable and the water right in California and Oregon is but for a fixed period, they are rights which are bought and sold and on which the company expects the consumer to pay a good return. Likewise the annual charge made by state and nation must be paid by the consumer even where rates are fixed by a commission, as it is a legitimate operating charge. It is now generally conceded that the fixed period idea is wrong economically. Although a preference right to continue after the end of the period is prom- ised the permittee, it is subject to future legislation, the nature of which can not be prophesied. The re- sult is that the operating company must charge a comparatively high rate in order to return the capital invested within the fixed period, and the chance of poor maintenance near the end of the period is decided. Many state and federal officials are now ready 104 WESTERN WATER LAW to recommend an indeterminate license in place of the fixed term or revocable license. The indeterminate license is to be granted subject to the condition that the works may be taken over at any time by the state, or other public unit, at a valuation to be fixed by the state public service commission. As such tak- ing is very unlikely in any given case and as it will become more and more so as the public service com- mission become older and stronger, the indetermi- nate license has almost the assurance of a perpetual right, conditioned only on proper operation. If such license is granted on the further condition that no rights of way, franchises or water rights secured from the state or nation can be capitalized for either rate fixing purposes or in cases of taking as above, the public is certainly protected in full measure. State Versus Nation. During the past few years withdrawals from entry of public lands for power sites have been made in large numbers. The Land Classification Board of the United States Geological Survey has charge of the examination of such withdrawn lands, and all future applications for rights of way for power purposes over public lands outside of national forests will be passed upon by the engineers of the board. Comparatively recently a movemtent has been gaining weight to have the nation transfer the "power site withdrawals" in trust to the states. To many, of whom the writer is one, this suggestion is a step backward. In the last chapter attention was called to the doubtful water rights of interstate ditches. If the suggested step be taken the right of way of such ditches would be equally doubtful and the same ques- tion would be raised regarding interstate transmission lines. In all phases of legislation the struggle should be for uniformity. There are but two federal depart- ments concerned in the regulations regarding rights of way and the minor differences in their points of RIGHTS OF WAY 105 view are being rapidly eliminated. It would take many years to bring the many western states into such unison. Conceding for the purposes of argument only that the technical men of the federal bureaus are not better trained than those in the state offices, the longer period of service and greater freedom from politics are sufficient to make the federal bureau the more effective. It must be remembered also that in each of the western states land matters and water matters are handled by different offices having little or nothing in common. The embarrassment would be thus increased. A real difficulty in the way of an early settlement of the whole question is that the present is a transition period. The public service commissions with their full control of all public service companies are so new that their existence is either not recognized or their worth is questioned. When they have demonstrated their efficiency there will be no further excuse for either federal bureaus or state water commissions at- tempting to regulate the power business. It has been shown that the state and not the nation has control of water rights. There is no more reason, therefore, for the nation charging an annual tax depending upon the amount of power developed which, of course, is a function of the water right than there is for de- manding of a railroad company, as a condition pre- cedent to grant of right of way, that it must pay an annual charge depending upon the traffic handled. The nation as owner of the land should give a right of way or indeterminate license conditioned upon construction within a specified time and leave the question of regu- lation to the state public service commissions. To repeat, the future congressional and state legis- lation regarding water power development will de- pend upon the state public service commissions. If they prove efficient, as there is every reason to believe, the public should insist that all other agencies stay within their proper spheres and stop tampering with the regulation of public utilities. CHAPTER IX. COMMERCIAL 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 jthe irrigation of land higher up on the stream, and in this way all easily accessible lands in the valley were irrigated. These in- dividual 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 prob- lem of digging ditches to them offered too many diffi- culties for local accomplishment. It was at this point that eastern and foreign capital 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 promoter had an easy task, and when we consider the time and re- sults of the early irrigation his success must be taken as a matter of course. The simple ditches then in use were the single instrument by which land worth noth- ing had been brought into a high state of cultivation 106 COMMERCIAL. IRRIGATION ENTERPRISES 107 and great value. It was easy therefore to picture the rich returns of thousands of acres of such land, now barren and worthless, when under a well constructed canal. No argument was necessary to convince the in- vestor that the real wealth lay in the water and that a system 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 engi- neering skill. The chief error was the neglect to "tie" the land to the water. The promoters 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 set- tler, unfortunately, 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 government land and there were no statutes by means of which the canal com- pany 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 enter- prises (now called commercial enterprises) and intelli- gent capital today will invest in no scheme where land and water do not go together. In fact, the attractive enterprise today 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 irri- gated in 1909 by commercial enterprises, and the per- centage of the total irrigated by the latter. The com- mercial enterprise differs from the mutual or co-opera- tive 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. 108 WESTERN WATER LAW Acreage Irrigated In 1909. Percentage Commer- by Commer- cial Enter- cial Enter- State. Total. prises. prises. Arid States 13,739,499 1,444,806 10.6 California 2,664,104 746,265 10.6 Washington 334,378 66,911 20.0 Texas (exclusive of rice) ..'. 164,283 73,440 16.3 Oregon 686,129 77,387 11.3 South Dakota 63,248 6,300 10. Nebraska 255,950 24,834 9.7 Wyoming 1,133,302 87,935 7.8 Utah 999,410 70,227 7.0 Colorado 2,792,032 159,457 5.9 Montana 1,679,084 62,544 3.7 New Mexico 461,718 15.690 3.4 Idaho 1,430,848 44,872 3,1 Nevada 701,833 8,864 1.3 Arizona 320,051 80 .1 Kansas 37,479 North Dakota 10,248 Oklahoma 5,402 As California has comparatively so large a per- centage of commercial enterprises, it might be inferred that such projects are especially numerous and popu- lar. 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 addi tion; Third. Enterprises selling water rights and a pro rata interest in the irrigated system. The enterprises of this group therefore become mutual enterprises. A few California examples of each group follow : Examples of Companies "Renting" Water. The Kern County Land Company diverts water from the Kern River for the irrigation of about 250,000 acres in the vicinity of Bakersfield. Although most of the water is used to irrigate its own lands, the com- pany controls sixteen subsidiary canal companies. Water is supplied at the rate of 75 cents per cubic foot per second, flowing for 24 hours equivalent to 37.5 cents per acre foot. The San Joaquin and Kings River Canal and Irri- COMMERCIAL IRRIGATION ENTERPRISES 109 gation Company diverts water from the San Joaquin River for the irrigation of about 100,000 acres on the west side of the San Joaquin Valley in Fresno, Merced and Stanislaus Counties. The water rate has been fixed by the Boards of Supervisors as follows : Stanislaus County $2.35 per cu. ft. per sec. for 24 hrs. Merced County 1.90 " " " " " " " * Fresno County 1.25 " " " " " " " " The Pacific Gas & Electric Company owns and op- erates a number of canals diverting water from the Yuba and Bear Rivers in Placer County. The canals were formerly used for hydraulic mining but are now used for irrigation and municipal supply. No water rights are sold but the rates for the various kinds of service have been fixed annually by the County Super- visors. Examples of Companies Selling Water Rights But No Interest in System. The San Diego Land and Town Company owns the Sweetwater reservoir and canal system in San Diego County. It has sold land under its system with and without a water right, has sold water rights to other lands, and has furnished water on a rental basis to lands having no water right. The California Development Company diverts water from the Colorado River for the irrigation of about 225,000 acres in the Imperial Valley. It has contracted with several mutual companies to supply water at the rate of 50 cents per acre foot 4 acre feet being sufficient for one acre. The mutual companies sell water rights on the basis of one share of stock to the acre, at the rate of $15 to $25 per acre, which amounts must be paid to the California Development Company. The water user pays an additional sum of about 20 cents per acre to the mutual companies for maintenance and operation. The Fresno Canal & Irrigation Company and the Consolidated Canal Company are under the same man- agement and divert water from the Kings River for the irrigation of about 360,000 acres in Fresno County. Water rights are sold at the rate of $10 per acre for 110 WESTERN WATER LAW first class rights under the Fresno Canal and Irriga- tion system and $5 per acre for second class rights under that system and rights under the Consolidated. The rights are on the basis of one cubic foot per second to 160 acres. There is an additional annual charge of 62.5 cents per acre under the Fresno and 75 cents per acre under the Consolidated. The Crocker-Huffman Land & Water Company diverts water from the Merced River for the irrigation of about 60,000 acres in the vicinity of Merced. Water rights on the basis of one cubic foot for 160 acres, are sold at the rate of $10 per acre, with an additional annual maintenance charge of $1 or $2 per acre. Examples of Companies Selling Water Rights Carry- ing an Interest in System. The Patterson Land Company diverts water from the San Joaquin River for the irrigation of 19,000 acres on the "West Side" in Stanislaus County all owned by the company. The irrigation system has been transferred to the Patterson Water Company. Water rights on the basis of 2 to 3 acre-feet per acre are sold with the land at prices from $200 to $500 per acre. An additional annual charge of $3 for 2 acre feet and $1.50 for the extra acre foot is made. A share of stock in the water company is given with each acre sold, but the land company will retain man- agement until 75 per cent of the land is sold, after which the land purchasers will be given control. The Sacramento Valley Irrigation Company has purchased the old Central Canal and is extending the canal and lateral system to cover about 150,000 acres on the "West Side" in Glenn and Colusa Counties. The company is a land company and is purchasing all the irrigable land under the line of canal which it can secure. The Sacramento West Side Irrigation Company has been formed to operate the system. Water rights on the basis of 1^2 acre feet per acre will be sold with the land at prices from $125 per acre upwards. An additional annual operation and main- tenance charge will be made. A share of stock in the West Side Company will be given with each acre of COMMERCIAL IRRIGATION ENTERPRISES 111 land, so that the land purchasers will ultimately oper- ate and manage the system. Most of the larger mutual companies in southern California were started as commercial enterprises of this group. There is probably no better example than the Gage Canal which is known as one of the most highly developed systems in the country. It diverts water from the Santa Ana River for the irrigation of about 10,000 acres near Riverside. The Riverside Trust Company originally owned the land and canal system. Each acre sojd carried a water right of one- fifth of an inch and two shares in the Gage Company. The Colorado Anti-Royalty Act. In the early 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 so-called Anti-Royalty Act of 1887, which made it unlawful for a ditch owner to accept payment cor- responding to that for our 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 did not become necessary to form the new company and relinquish the works. In more recent years, however, such contracts have been exe- cuted and the capacity fixed by the company in good faith and have been extensively used, not only in Colo- rado but in Nebraska and Oregon also. The Regulation of Commercial Enterprises. At an early date statutes were passed in a number of the western states authorizing the county super- visors, or commissioners, to fix the rate at which com- mercial enterprises should furnish water to irrigators. (The statutes of the last session in some of the states transfer this power to the railroad or public service commissions.) In the absence of such rate fixing the rates established by the water company con- trolled. The state and federal courts in California have 112 WESTERN WATER LAW 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 inter- preted by the California Supreme Court in Stanislaus Water Company v. Bachman (152 Cal. 716), wherein it was held, "And under the present statute the con- tract rights prevail in all cases, the boards of super- visors being powerless to effect or interfere with them." In the more recent case of Leavitt v. Lassen Irri- gation Company (157 Cal. 82) decided December 24, 1909, the Supreme 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 declaration 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. The Leavitt case deals with a prior and perpetual water right reserved by the former owner (the plain- tiff) in selling a commercial enterprise to the company (defendant). It seems that such an exclusive and preferential right could be easily distinguished from the ordinary water right provided for in the amend- ment of 1897, but as so many capable attorneys hold to the contrary it would be unwise to organize an irri- gation company with the idea of establishing by con- tract profitable rates which could not be lowered by the county supervisors.* * Since the above was written the U. S. Circuit Court of Appeals, Ninth Circuit, has decided in Imperial Water Co. No. 5 v. Holabird (197 Fed. 4) that the water right contract therein considered is void. COMMERCIAL IRRIGATION ENTERPRISES 113 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 Northern 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. The question was not a direct issue in California until the recent case of San Joaquin & Kings River Canal and Irrigation Company v. Stanislaus County (191 Fed. 875) decided September 18, 1911. The com- pany 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 refused to accept the contention in the fol- lowing words : The claim, as stated, is manifestly not sufficient to state a right of diversion. It must appear, further, that the com- plainant 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 cer- tain 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 com- 114 WESTERN WATER LAW plainant'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, therefore, be the right of the consumer and attached to his land, and not the right of the complainant attached to its canal system. The irrigation company has appealed to the Cir- cuit Court of Appeals and the case will probably be carried to the Supreme Court of the United States. The reader is referred to the opinion as an excellenc exposition of the principles underlying not only the question of ownership of water rights but also the many other questions regarding rate fixing for public utilities. As the cases now stand the Supreme Courts of Arizona, Colorado and Nebraska and the U. S. Circuit Court in California positively hold that the water right belongs to the user and not to the irrigation company. The only Supreme Court indicating to the contrary is that of Montana in Bailey v. Tintinger (122 Pac. 575) decided March 5, 1912. The case was simply one to determine the relative rights of a number of ditch own- ers and the Court, instead of applying the accepted rule that every appropriator must be given a reason- able time after the completion of the ditch in which to apply the water to beneficial use, holds that under the Montana statutes the appropriation must be con- sidered complete upon the completion of the ditch. In the course of its opinion the court says : To deny the right of a public service corporation to make an appropriation independently of its users or future customers * * * would be to discourage the formation of such corpor- ations and greatly retard the reclamation of arid lands in localities where the magnitude of the undertaking is too great for individual enterprise. In view of the issue before the court the above ex- pression should be considered a dictum only. It is another illustration of the dire need of rational water right legislation in Montana. A further statement of the present and future status of commercial irrigation enterprises will be made in a later chapter after the discussion of other types of irrigation enterprises. 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 alien- ation other than the homestead and pre-emption acts, both passed in 1862. The first act to specially provide for the conditions of the irrigation 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 and Nebraska. 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 remun- erative 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^32Q 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 resi- dent of the State in which the land lies ; that he has not previously made desert land entry or taken an assignment of suchfthat 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, 115 116 WESTERN WATER LAW lands which in the aggregate exceed 320 acres; and that he intends to reclaim the lands described in the application through irrigation within four years. The act of March 3, 1891, provided for the assign- ment of the entire entry, but the act of March 28, 1908, allows an 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 payment of 25 cents per acre must be made. Be- fore 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 com- pany 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_jnake._ 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 irrigation of the land entered. Up to six years ago the Department was very lax in passing upon final proofs, but under the present regulations a rigid examination is made of the water right and the extent of irriga- tion and cultivation. At the time of making final proof a payment of one dollar per acre must be made. As there is no residence requirement in the desert land act other than to reside in the state and as pay- ment for the land itself is only $1.25 per acre, the act has been very popular. In the past many irrigation r CAREY ACT 117 companies secured large areas of public land by stipu- lating 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 con- tracting 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. In the few states, like California, which have not ac- cepted the provisions of the Carey act, the desert land act is the best method of securing the settlement of public lands under a private irrigation project. 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 'be- ing 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 nonpayment of annual charges. To relieve this situation Congress in 1894 passed the so-called "Carey Act" named after Senator Carey of Wyoming-, 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, oc- cupied, and not less than twenty acres of each one hundred and sixty-acre tract cultivated by actual set- tlers, 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 satisfactory proof, according to the regulations of the Secretary of the Interior, was made by the state "that any of said lands are irrigated, re- 118 WESTERN WATER LAW claimed, and occupied by actual settlers, patents 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 irrigation project and thus precluded the earlier type of speculator, but it failed to provide for a lien in case of nonpayment 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 k by providing that patents shall issue to the state, without regard to settlement or cultivation, as soon as a proper irriga- tion 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 yearslafter the passage of the act. No change was made in tnis severe requirement until the act of March 3, 1901, which provided 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 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 February 18, 1909, extended the provisions of the act to the territories of Arizona and New Mexico. The act of March 15, 1910, authorized the Secretary of the Interior to temporarily withdraw from entry areas em- bracing lands for which a state proposes to make ap- plication, pending the investigation and survey pre- liminary to the filing of the regular application for the segregation. The Secretary of the Interior has prepared regu- lations which must be followed by the states in making Carey act segregations. No segregation is now CAREY ACT 119 proved until examined on the ground and reported favorably by a government engineer. 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 sat- isfaction of its representatives. The following state- ment 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. The provisions of the Carey act have been ac- cepted by Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, South Dakota, Utah, Washington and Wyoming. During the fiscal year ending June 30th, 1911, 3,193,314 acres were segregated to the states. The total area patented under the act up to June 30, 1911, is 388,404 acres. The present activity in such projects is shown by. the following statement by the Comimissioner of the General Land Office (Annual Report, 1911) : A conservative estimate would indicate that there will be 4,000,000 acres included in segregation lists for Carey act projects during the coming year (1911-1912). During the last fiscal year 1,650,000 acres of selections were examined. There have been withdrawn for exploration and survey under the act of March 15, 1910, 3,500,000 acres. State Legislation. Idaho and Wyoming were especially active in pre- paring 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 120 WESTERN WATER LAW of the Carey act as far as the state is concerned is en- trusted to a board. The irrigation project is not con- structed by the state, but by an individual, associa- tion 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 segre- gation of the desired tract of desert public land and a proposal to -construct the irrigation system, stating the source of water supply, the location and dimen- sions of the proposed works, the estimated cost of con- struction, and the price and terms at which perpetual water rights will 'be sold. The request must be accom- panied by a certificate of the state engineer showing that the contractor has made proper application to appropriate the necessary water. A certified check of specified 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 prescribed 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 segre- gated 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 with- in 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 CAREY ACT 121 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 en- tered during the first year and at least one-eighth dur- ing 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 con- trol 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. Development Under the Carey Act. The data for the following statistical statement of the work accomplished in the various states under the Carey act was taken from the last biennial reports (1909-1910) of the land or Carey act 'boards and of the state engineers. It was assembled by Mr. A. P. Stover, of Irrigation Investigations of the United States De- partment of Agriculture, in his very comprehensive paper entitled "Irrigation Under the Carey Act," pub- lished in the Annual Report of the Office of Experi- ment Stations for the year ending June 30, 1910. The data, with the exception of the area granted, is for the close of 1910. Colorado. The total area granted to the state, not including the Ute Indian Reservation grant, is 1,000,- 000 acres; the total area segregated, contracted and applied for was 1,121,940 acres; the area of reclaimed land sold to settlers was 34,000 acres ; the number of projects being developed was 20; and the cost of water rights ranged from $15 to $45 per acre. Idaho. The total area granted to the state is 3,000,- 000 acres (2,000,000 acres having been added by Con- gress in 1908) ; the total area segregated was 2,630,833 acres; the area of reclaimed land sold to settlers was 122 WESTERN WATER LAW 270,184 acres; the number of projects being developed was 42 ; and the cost of water rights ranged from $20 to $100 per acre, with an average of $28 per acre. Montana. The total area granted to the state is 1,000,000 acres ;the total area segregated was 411,326 acres; the area of reclaimed land sold to settlers was 45,000 acres; and the number of projects being de- veloped was 13. Nevada. The total area granted to the state is 2,000,000 acres; the total area segregated was 173,215 acres ; and the number of projects being developed or investigated was 13. Oregon. The total area granted to the state is 1,000,000 acres; the total area segregated was 593,124 acies; the number of projects being developed was 16; and the cost of water rights ranged from $10 to $60 per acre. Wyoming. The total area granted to the state is 2,000,000 acres (1,000,000 acres having been added by Congress in 1908) ; the total area segregated was 1,390,365 acres; the area of reclaimed land sold to set- tlers was 130,000 acres; the number of projects being developed was 63 ; and the cost of water rights ranged from $10 to $65 per acre, with an average of $15 per acre. Practically nothing had been done under the Carey act at the close of 1910 in New Mexico, South Dakota, or Washington. In Utah ten projects were being ex- amined and one had reached the construction stage. Water right charges up to $250 per acre are proposed in Utah. It must be remembered that the maximum water right charge is fixed in the contract with the state, so that the state officials are to blame if excessive charges are allowed. The aim ordinarily is to give the contractor a good profit and at the same time to pro- tect the settler. In Oregon the practice has been to fix the maximum charge at "the actual cost of con- struction plus seventy-five to one hundred per cent profit, to reimburse him for the risk, cost of selling and other necessary expenses in addition to the usual con- struction cost." CHAPTER XI. THE RECLAMATION ACT. In the case of United States v. Hanson, 167 Fed. 881, the Federal Circuit Court of Appeals thus ex- pressed 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 inmpracticable 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 exceeding 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 a'bove 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 con- struction work in connection with storage and diver- sion projects. After many unsuccessful attempts the Reclamation Act was finally passed on June 17, 1902. 123 124 WESTERN WATER LAW The Act creates a fund known as the "Reclama- tion Fund" from the moneys received from the sale of public lands in the following western states: Ari- zona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Okla- homa, Oregon, South Dakota, Utah, 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 spe- cial congressional and state legislation. The Secretary of the Interior is authorized to do the many things provided for in the Act and in con- nection with the development of any project he must withdraw from public entry the lands required for the irrigation works and also must withdraw 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 with- drawn are to be restored to entry. The two with- drawals 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 limitations and condi- tions of the Reclamation Act, they were settled upon in many cases just as soon as it was known that a Reclamation 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 dissat- isfaction. This difficulty was removed in the later projects by the Secretary of the Interior withdrawing all lands under the first form. There was some ques- tion as to the legal power of the Secretary to with- draw 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 pro- vided that no entry shall be made and no entryman shall be permitted to go upon lands reserved for irri- RECLAMATION AOT 125 gation 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 deliv- ered. ~7/*?I As soon as a project is found practicable and con- tracts have been let, the Act provides that the Secre- tary "shall give public notice of the lands irrigable under such project, and limit of area per entry, which limit shall represent the acreage which, in the opinion of the Secretary, may 'be reasonably required for the support of a family upon the lands in question ; 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 proj- ect, and the number of annual instalments, not exceed- ing ten, in which such charges shall be paid and the time at which such payments shall commence." The charges announced by the Secretary in the public notice are determined with a view of returning to the fund the cost of the project and in practice are appor- tioned equally throughout the project. The public lands subject to entry can be entered only under the provisions of the Homestead Act in tracts not less than ten nor more than one hundred and sixty acres. JThe entry is subject to the limitations and conditions of the Reclamation Act and the commuta- tion provisions of the Homestead Act do not apply. The original Act placed the minimum area at forty acres. Before receiving patent the entryman must re- claim at least one-half of the total irrigable area of his entry and must pay the charges apportioned against the land entered. Although private lands may be included within the project, no water right for such lands can be sold for a tract exceeding 160 acres to any one landowner, "and no such sale shall be made to any landowner un- less he k be an actual bona fide resident on such land or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made." The Secretary has ruled that residence within fifty miles of the land 126 WESTERN WATER LAW shall be construed as "residing in the neighborhood of said land." It has also been held that a corporation is entitled to hold land under a government project, but as a condition precedent thereto a showing must be made that the aggregate area held by the corpora- tion and its stockholders in their individual capacities does not exceed one hundred and sixty acres. As each individual is allowed to hold one hundred and sixty acres of private land under such a project, there is little incentive for corporate holdings. The Secretary is authorized to use the Reclama- tion Fund for the operation and maintenance of res- ervoirs and irrigation works. When the payments re- quired 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 landowners thereunder to be maintained at their expense under some form of organization acceptable to the Secretary ; but "the title to and the management and operation of the reservoirs and the work necessary for their protection and operation shall remain in the Govern- ment 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 landowners. The only inference, therefore, is that the title to the works, as well as reservoirs, is to remain in the Govern- ment. As in a number of other Congressional acts, it is expressly stated in this Act that it shall not be con- strued as interfering with state or territorial laws re- garding 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 larguage: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irri- gated, and beneficial use shall be the basis, the measure, and the limit of the right. The original Act provided that within each ten- RECLAMATION ACT 127 year period the major portion of the funds arising from the sale of public lands within any state or territory should i be expended within the limits thereof. The section so providing was repealed by Congress in 1910 so that the Secertary is now at liberty to expend moneys on feasible projects regardless of the geograph- ical source of such. As stated above, the operations under the Re- clamation Act are under the Secretary of the Interior. Prior to the passage of the Act in 1902, the Hydro- graphic 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 Ari- zona. As practically all the lands included were in pri- vate 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 cannot pass until all the water right payments have been made. To satisfy the re- quirement in regard to the private lands, the first so- called Water Users' Association was formed. JThe. shareholders of this association, which is regularly in- corporated, are the landowners under the project. The capital stock is fixed at the estimated cost of the proj- ect and each acre is entitled co one share of stock. The association enters into a contract with the Secretary of the Interior pledging itself to repay the cost of con- struction. 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 provided by law for the foreclosure of mortgages. The land is thus bound to the association and the association to the Secretary. 128 WESTERN WATER LAW Although not necessary as far as the lien is con- cerned, the practice has been to compel entrymen on the public lands to become stockholders in the asso- ciation. As provided in the Act, the payments must be paid in ten annual instalments and the practice is grow- ing of fixing a graduated scale for the instalments, so that they may not be heavy during the first few years. The association levies assessments on the shares of stock from year to year to pay the instalments. As the Act provides that the water right payments must be made to the local Land Office, a certificate from such office is accepted as payment by the association. The receipts from the sale of public lands to June 30, 1910, and excepting the five per cent of such pro- ceeds set aside for educational and other purposes, " * ; were^$65 | 584^j^ and the estimated total receipts to June 30, 1911, including $213,998 from the sale of townsite lots, were $71,717,990. The net investment of this fund in "reclamation works on June 30, 1911, to $60,940,834. - -**JLt>f > g- 5| > 3 | *) No new projects have been undertaken since March 4, 1909, and up to that time thirty-two primary projects (that is, projects actually under construction) have been undertaken, the net investment in which on June 30, 1911, amounted to $59,989,158. The area of land to which water could be supplied under such projects on June 30, 1911, was 1,025.609 acres and the total area under such projects was 3,101,450 acres. The charges levied on lands under such projects are divided into "water right -building charges" and "water right operation and maintenance charges." The aggre- gate return for the former to June, 30, 1911, was $1,533,- and for the latter, $517,394.^ } 7 7t/J. f"- T/^o/ A number of the projects are so large that it was originally planned to complete only a portion and allow the returns from the Act itself to pay for the extension work. In order to complete such projects in the imme- diate future, Congress in 1910 authorized a special bond issue of $20,000,000, no part of which can be spent on new projects. RECLAMATION ACT 129 As was to be expected where the operations are of such magnitude and cover so much territory, the con- stitutionality of the Reclamation Act was early at- tacked 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 de- clared 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 Recla- mation Act not only did not do so, but specifically pro- vided for the observance of local law. In the para- graph of the decision showing the power of the Gov- ernment to reclaim lands emphasis is laid upon the reclamation of lands within the territories and upon the reclamation of public lands within the states. In the two cases cited above as upholding the constitu- tionality 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 (Bur- ley 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 provide a system of irrigation for the private lands within the state and control its administration. It would, in- deed, 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. The Reclamation Act has now been in operation ten years and practically all of its thirty-two primary 130 WESTERN WATER LAW projects are furnishing water to settlers or landowners by canals constructed 'by the Government or purchased as a part of the project. As the water right charges in a number of cases are in excess of $40 per acre, the burden of meeting the first payments is in many cases a heavy one. There have, therefore, been constant appeals for relief. In commenting upon a suggested relief measure before the Senate Committee on Irri- gation, Secretary of the Interior Fisher recently wrote as follows : The passage of this resolution would lead to similar de- mands from a similar group of settlers on every project. The descent through successive general postponements to complete repudiation of a just debt may now be clearly discerned and easily made. The Reclamation act was passed in 1902 primarily for the benefit of the West and upon the request of Western Senators and Representatives. Many voices were raised against it in the East freely predicting that the beneficiaries of this large expendi- ture would never repay the cost of the works. These prophets of evil did not believe that the government and people of the United States possessed the patriotism and wisdom necessary to carry through such a great and beneficent enterprise by the expenditure of public funds on a basis of justice and efficiency. They held that in a popular government such an enterprise must be dominated by selfishness, and must degenerate into a scramble for special favors at the public expense. Nevertheless, the act was passed in the faith that the pledge of repayment embodied in its terms would be fulfilled. It is my deliberate conviction that the passage of this resolution would be a first and very influential step toward the breaking of that pledge and toward the failure of the beneficent reclamation policy. I desire to see that policy extended and supported by additional appropriations from the miscellaneous public revenue. But the one indispen- sable condition to its extension, or even to its continuance, is the repayment by the settlers of the cost of the irrigation works. Failing such a repayment not another dollar should be ex- pended in the construction of new projects or in the extension of those already opened. In framing the Reclamation Act the intention was to make the terms of payment no harsher than then existed under private projects and as no private proj- ects allowed in excess of ten years, that term was r RECLAMATION ACT 131 adopted. A great many viewing only the govern- mental character of the enterprise believe that this period should be extended to twenty or more years. The only reason suggested for greater leniency under government projects than under private projects is that the Reclamation Act necessitates residence upon or in the neighborhood of the land. It thus precludes the purchase of land by one who wishes to hold his pres- ent position and pay for the immediate improvement of the land by someone on the ground, with the inten- tion of making the tract his home after reaching the productive stage. This course is possible under pri- vate projects and not only means that the absent owner and probably inexperienced farmer may in time possess a tract easily farmed, but also is a source of income to those residing on the project. The only object of the residence restriction in the Reclamation Act is to avoid speculation and by many it is believed that the restriction works against, rather than for, the project. It is certain that the period for speculation is the time prior to the delivery of water ; that is, when the land values are comparatively low and when no payments need be made. As soon as the water is ready for delivery and the charges are imposed, traffic in land almost immediately ceases and the element of specu- lation disappears. It is probable that Congress will realize this condition in time and repeal the obnoxious residence clause. The Reclamation Act, in brief, provides a revolv- ing fund first accruing from the sale of public lands in the western irrigation states for the construction of irrigation works by the government for the irriga- tion of both public and private land and for the repay- ment of all moneys so expended k by the settlers and landowners under the project. It aims to secure actual irrigation by providing that the title to the water right shall not be given until half of the land has been actually cultivated. The management of the canal system is turned over to the water users thereunder when a majority of the payments have been made. CHAPTER XII. IRRIGATION DISTRICTS. Legislation for the formation of districts for flood protection, drainage and roads was long ago adopted in both the Eastern and West- ern states. Such acts secure for a commu- nity the benefits of protective or public im- provement works through taxation, even though a minority of the property holders object. As the appreciation of the results of irrigation in the interior valleys of California spread during the eighties and as the obstacle in the way of community enterprises 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 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 cham- pion of the measure. The California Irrigation District Act. The California irrigation district act as amended and supplemented, was re-enacted in 1897 and is local- ly known as the Bridgford Act. Statutes very closely following those of California have been adopted in every irrigation state with the exception of Arizona (bill pending in legislature May 1, 1912), the Dakotas and Oklahoma. 1*2 IRRIGATION DISTRICTS 133 The following presentation of the provisions of the irrigation district act is for the Bridgford 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 iBoard 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 presented at a regular meeting of the board, at which time a hearing is given to all those interested. If the action of the board is favorable it defines the boundaries and divides the proposed district into three or five divisions. Any party aggrieved by the action of the board may appeal to the Superior Court. 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 neces- sary to carry the bond issue. The bonds bear inter- est at the rate of five per cent, are payable from the twenty-first to the thirtieth year and must be sold at not less than par. The interest on the bonds and the operation and maintenance expenses of the district are paid by taxing all lands 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-pay- ment of state or county taxes. 134 WESTERN WATER LAW Several amendments to the district act were passed at the regular and special sessions of the Cali- fornia legislature in 1911. The aim of all of the amend- ments was to secure a better financial basis for the sale of the district bonds. The principal act provides for a detailed examination of the feasibility of the dis- tricts 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 registered at the office of the State Controller and thereupon shall be considered legal in- vestments for all trust funds and for funds of insur- ance companies, banks, etc., and are in general placed upon the same legal basis for purposes of investment as the bonds of cities and counties, school districts, or municipalities. Points of Difference in Irrigation District Acts. The principal points of difference in the various state statutes providing for irrigation districts are the provisions regarding state supervision; the exclusion of land included in the original petition; the qualifi- cations of voters; the rate of interest on bonds and the authority to sell bonds below par; and the basis of assessment. In Idaho, Oregon and Wyoming, the feasibility of the project must be approved by the state engineer. The operations under the acts in Oregon and Wyom- ing are just beginning but a number of districts have been operated successfully for many years in Idaho. In the latter state the original petition to the board of county commissioners must be accompanied by a map of the proposed district. The petition and map are referred to the state engineer for report and if his report be against the organization of the district the county commissioners must refuse to further consider the petition unless it be requested in writing so to do by three-fourths of the landowners in said proposed district. The plans and specifications for the proposed IRRIGATION DISTRICTS 135 system prepared after the formation of the district, must also be reported upon by the state engineer, but it is not provided that such plans must be changed in order to secure his approval. In the California act it is provided that the board of supervisors shall not allow to be included in the proposed district any lands which will not, in its judg- ment, be benefitted by the proposed means of irriga- tion. This provision is the general one, but in Wyom- ing it is provided, "nor shall any land be included in such district if the owner thereof shall make applica- tion at such hearing to withdraw the same." In Ore- gon no land can be included in the district which lies within the limits of any city or town. In Colorado and Wyoming it is provided that no land shall be taxed for irrigation purposes "which from any natural cause cannot be irrigated, or is incapable of cultivation." In California any elector residing within the dis- trict has the right to vote regardless of property quali- fications it being generally understood that to place limitations upon the right to vote would render the section unconstitutional. In Colorado and Idaho the voters must be resident freeholders, and the Oregon statute provides that a bona fide owner of land, whether a resident or not, may vote. The rate of bond interest varies from five per cent in California to seven per cent in Idaho, and a number of states allow bonds to be sold at not less than ninety per cent of par value. The basis for assesssment in California is the full cash value of the property. In Idaho the assessment is made in accordance with the benefits received as determined by the board of directors. In Colorado and Wyoming all lands within the district for the pur- poses of taxation must be valued by the assessor at the same rate per acre. This last method is analogous to that used by the ordinary irrigation companies in charging a fixed rate per acre. 136 WESTERN WATER LAW The Constitutionality of Irrigation District Acts. Owing to the compulsory nature of the irrigation district enterprise, it was to be expected that litiga- tion should be initiated immediately after the forma- tion 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 Cali- fornia 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 liti- gation has followed the inauguration of irrigation dis- tricts 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 ar- gument presents the view of a great number of Cali- fornians 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 especially in view of the construction which has been given to certain details of this statute by the Supreme Court of California. Operations Under Irrigation District Acts. Although thirteen irrigation states have irrigation district acts, only eight had irrigation district enter- prises irrigating land in 1909, and only nine had proj- ects either completed or under construction in 1910. The following table taken from the advance sheets of the Thirteenth Census shows by states the acreage irrigated by irrigation district canals in 1909, and also IRRIGATION DISTRICTS 137 the acreage included within districts completed or under construction in 1910. Acreage Irrigation Acreage Irrigated Districts were in 1909, by capable of irrigating State. Irrigation Districts. in 1910. California 173,793 606,351 Colorado 115,304 487,370 Idaho 140,930 329,796 Montana 4,912 15,040 Nebraska 76,448 91,076 Oregon 1,500 5,980 Utah 8,455 10,802 Wyoming 11,800 27,050 A glance at the above table shows that there has been little irrigation district development outside of California, Colorado, Idaho and Nebraska and that such development has been most pronounced in the three states first named. Irrigation Districts in California. The Irrigation Investigations of the United States Department of Agriculture has gathered data for the publication of a report on irrigation districts in Cali- fornia. Certain statistical information from the pro- posed report was presented in a paper read by Mr. Frank Adams, in charge in California, before the Commonwealth Club of California. On account of the growing interest in the history of California dis- tricts, the following long quotation is made from Mr. Adams' paper: 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 dis- solved. 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 settlement and have no outstanding obligations as districts at this time. Two have made settlement, but still have small out- standing indebtedness that either has been declared illegal or can not be found. Four have made settlement by exchanging 138 WESTERN WATER LAW new for old bonds and are now active, and with the exception of one, whose reorganization is not yet complete and which therefore cannot be judged, are active and successful 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 dif- ferent 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 aban- doned, and for which no plans of settlement have yet been seri- ously 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 en- couraging, although in time they will without question be cleared up in some way. This might also be said of the other four. Irrigation Districts in Colorado and Idaho As shown by the above table from the Census re- port, both Colorado and Idaho have been active in irrigation district enterprises. It has been stated above that the irrigation districts in Idaho must be re- ported upon by the state engineer. The wisdom of such a provision and the dire need of it in Colorado is clearly shown by the following extract from the Biennial Report of the State Engineer of Colorado for 1909-1910: It is believed that the organization and financing of irri- gation districts should be subject to some sort of state control. The present irrigation district law, while facilitating the forma- tion of mutual enterprises in which each man in securing the irrigation of his own land helps to irrigate that of his neighbor, unfortunately lends itself to the manipulation of shrewd and un- scrupulous promoters who do not hesitate to take advantage of ignorance on the part of many landowners with regard to finan- cial and engineering problems to promote districts which may or may not have within them the elements of success. The experience of the State Board of Land Commission- ers during the past two years, in which this Board has found IRRIGATION DISTRICTS 139 it necessary to cut in two in many cases the areas proposed for irrigation under the Carey act, indicates that a similar regula- tion and control of irrigation districts would be for the good of all concerned. The irrigation district law should be so modi- fied that no issue of bonds for construction purposes can be made until the enterprise has been approved by the State Board of Land Commissioners. From now on this Board will always have an engineer as one member. It can, furthermore, always command the services and assistance of the state engineer's office in any investigation which it sees fit to undertake. It is, there- fore, believed that it is the proper official organization to exercise control over irrigation districts. The 1909-1910 Report of the State Engineer of Colorado contains statistical data for seventeen irri- gation districts, voluntarily furnished by the district secretaries. The 1909-1910 report of the state engi- neer of Idaho contains reports showing the existing conditions of fourteen districts which reports are made by the district officers to the state engineer in accordance with a provision in the district act. The suggestion quoted above from the report of the State Engineer of Colorado should be incorpor- ated in the district act of every state, although, as stated, Idaho, Oregon and Wyoming provide for re- ports on the feasibility of the projects by the State Engineer. The 1911 amendments in California are designed to give existing districts so desiring a finan- cial standing and do not provide for an examination on the part of the state before the organization. The reason most generally given for the failure of the early districts in California was the lack of proper super- vision although the fact that the movement was pre- mature and attended by the difficulties incident to rapid colonizing of new territory was an important contributing cause of failure. Advantages and Disadvantages of the District Organ- ization. When the first irrigation district act was passed in California in 1887, the only large irrigation enter- prises existing were those owned by corporations (the so-called commercial enterprises) delivering water to 140 WESTERN WATER LAW landowners having no interest in the works. A novel feature of the district plan was therefore the provision for community ownership. The status today is dif- ferent. A large number of the commercial enterprises have become mutual or co-operative (that is, the land- owners own the irrigation works) and the extensive projects now being operated or constructed under the Carey Act and the Reclamation Act will ultimately be managed as mutual enterprises. The district act is therefore no longer unique in this respect. Owing to its compulsory provisions it is easier to organize a large project under the district act than to form a mutual company for the irrigation of the same land. The irrigation district has, furthermore, a polit- ical prestige unknown to the mutual enterprise and has, therefore, far greater chances of securing favor- able legislation. At present the great obstacle in the way of fur- ther development by irrigation districts is the diffi: culty of financing them. In this the district is also not unique as other forms of irrigation enterprises have the same difficulty in securing money for con- struction purposes. The argument is often made that school districts and municipalities which depend for their existence upon the irrigation district, have no difficulty in selling bonds while those of the irri- gation district go unsold. Bankers and bond houses answer that it is due simply to a lack of confidence; that many irrigation districts and other irrigation en- terprises have failed while there are few cases of school district and municipal bonds proving bad investments. As stated above, an attempt has been made to remedy this trouble in California by legislation, but the gen- eral view is that no amount of legislation can increase the sale of bonds or increase the confidence in such, and that the only way of proving to the bond-buying public that the security is good is to show a number of successful irrigation districts. Two states, Idaho and Oregon, have provided for the use of the funds of the United States Reclamation Service in lieu of part or the whole of a bond issue. IRRIGATION DISTRICTS 141 There are certain legal obstacles in the way of the use of the "Reclamation Fund" for such purposes, even if there were a present surplus of money in such fund. The Reclamation Act provides that no water can be furnished to an individual owning in excess of 160 acres and also that the water user must be a resident upon or in the neighborhod of the land irrigated. An irrigation district organized under such restrictions would not be legally sound. It will be necessary, therefore, to eliminate the above restrictions from the Reclamation Act before the Reclamation Fund can be used to finance irrigation districts. Furthermore, at the present time the fund has been entirely allotted to regular Reclamation Service projects so that no re- lief from such source is in sight for the irrigation dis- tricts. Owing to the difficulty in disposing of irrigation district bonds at the present time especially in Cali- fornia the irrigation district has to, pay far more for its construction work than it should. As the bonds carry but five per cent interest and must be sold at par, the ordinary way of handling both bids for the purchase of bonds and bids for construction work is by means of a combination between contractor and bond buyer whereby the bond bnyer buys the bonds at par and is reimbursed by the contractor who adds twenty or more per cent to his usual contract price. It cannot be claimed, therefore, that one of the first aims of the irrigation district act that is, the saving of the profit of the middleman has been brought about. Until irrigation district bonds are on the same basis as other municipal bonds, there will be little economy in the construction of such work. The irrigation district act provides that the dis- tricts shall have the power of condemnation and this provision in the California act has been considered favorably by the United States Supreme Court (Fall- brook Irrigation District v. Bradley (164 U. S. 112). In California and a number of other Western states it is generally believed although not so specifically held that only public service corporations have the 142 WESTERN WATER LAW right of condemnation and that, therefore, a mutual irrigation company or a commercial enterprise for the irrigation of a large body of land for subdivision pur- poses would not have such right. (Although a digres- sion, the point is here suggested that as the Califor- nia legislature in 1911 passed a statute providing that "Irrigation in the State of California is hereby declared to be a public necessity and a public use, and the power of eminent domain may be exercised on behalf of such public use * * *," it is high time for a test case to be made by an irrigation company other than a public service corporation. There seems to be no good reason why a mutual company or a commer- cial enterprise irrigating a few thousand or more acres should not have the right of eminent domain as an irrigation district has.) Aside from its power of eminent domain, the main advantage of the district organization is the authority of the majority to force the unwilling landowners to enter an irrigation enterprise. This power of the majority and the fact that (in most states) all voters within the district, whether property owners or not, may vote on matters pertaining to the management of the district, is thought by many to be detrimental to the best interests of the district. It is thought that under such conditions the management of the dis- tricts is likely to fall into the hands of politicians rather than the more able business men of the district. As to the compulsion exerted to bring unwilling land- owners into the districts, this is now of less import- ance as the interest in irrigation is so great at the present time that there is little objection in any district to its formation and therefore this advantage is more theoretical than real in a number of instances. CHAPTER XIII. THE DESIDERATUM IN LEGISLATION RE- GARDING THE PUBLIC WATERS. The legal principles governing the use of water are the result of judicial decisions rather than legis- lation. Just as the doctrine of riparian rights is the outgrowth of the old common law as interpreted by the English courts, so the doctrine of prior appro- priation is the outgrowth of the customs of the pio- neer miners and irrigators as interpreted by the West- ern 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 abro- gated the doctrine of riparian rights because it was wholly unsuited to conditions there existing, and Cali- fornia has refused to follow the English common law rule of percolating waters for the same reason. Riparian Rights. The Western states still tolerating even a modi- fied riparian doctrine are only semi-arid and naturally the older and larger cities are in the semi-humid sec- tion. It is therefore not strange that their supreme courts still find some virtue 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 decade, however, irrigation has been given a tremen- 143 144 WESTERN WATER LAW dous 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. The doctrine of prior appropriation on the con- trary is proving more and more adapted to the needs of growing communities with restricted water supplies. The cardinal principle being reasonable use and the elimination of waste, no ditch is allowed to divert water unless there is actual immediate need for the use thereof. The popular notion of the exclusive owner- ship of water finds no authorization in the books. On the contrary expressions like the following show the attitude of the 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 pro- ductive 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 claims of the doctrine of prior appropriation is perhaps nowhere better shown than in the very recent 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 ren- dered his wheels useless. If the doctrine of riparian rights were recognized in Idaho the remedy of the plaintiff would have been unquestioned, but the doc- trine was long ago abrogated. The Supreme Court in affirming a judgment of dismissal quotes with ap- proval 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 THE DESIDERATUM 145 a use also lacks one of the essential attributes of an appropria- tion, 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. Despite the weakness of the riparian doctrine, it is the accepted rule of propertyniTlie' semi-humid states. As it has been fixed upon us by the courts, legislation attempting to abrogate it for lands now in 'private ownership, would be futile and should not be attempted. The suggestion has been made to lessen the statutory period now allowed a riparian owner in which to bring an action for wrongful diversion. It is a practical idea and worthy of adoption, but any change in the doctrine itself must be made by the courts. Percolating Waters. California is the only irrigation state which does not follow the common law rule that percolating waters belong to the owner of the soil. Excepting California there can be no need of legislation regarding the use of such waters. In California the courts have departed from the common law and have laid down a new rule somewhat analogous to that of riparian rights in the surface streams. Under the new rule the owner of land over- lying 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. Where a surplus exists, the court may fix the time and amounts for the pumping of percolating water to lands not overlying. To be constitutional any legislation in California regarding percolating waters must be declaratory of the principles established by the courts. The scien- tific and technical questions which arise in the de- termination of the source and amount of percolating waters are so many and so difficult to positively answer, that few claimants will be satisfied with a determina- 146 WESTERN WATER LAW tion not approved by the higher courts. Until ad- ministrative officers have demonstrated their efficiency in determining rights to the surface flow, there is little hope of them being given an opportunity to deal with percolating waters. At the present time the courts have established rules of their own which will con- serve such waters, and those who are striving for better water legislation in California should concen- trate their efforts in behalf of the surface supply. 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 cannot be anticipated and avoided by state legislation. In certain parts of the West, especially on the Colorado and Sacramento Rivers, the clash is imminent. As action by congress in favor of irrigation would be diffi- cult to secure and of doubtful validity, the question must be settled by the communities involved. The investments in irrigation works and the industries de- pendent 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 navigability 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 diversions of the summer flow even to the detriment of navigation, and that such conflicts will be adjusted to so allow. "Monopoly" in Public Waters. As ordinarily defined "monopoly" signifies that the "monopolist" has control over output and prices. So construed there can be no monopoly in the waters of our streams. The various types of irrigation enterprises may be grouped as follows: United States Reclamation THE DESIDERATUM 147 Service enterprises; Carey Act enterprises; irrigation districts ; co-operative or mutual enterprises ; commer- cial enterprises; and individual and partnership enter- prises. As explained in the previous chapters all of the types become mutual excepting the commercial enterprises which supply water for compensation to parties who own no interest in the works. It has also been shown that the rates of the commercial enter- prises are subject to regulation by public officers and that the water right of the enterprise belongs to the land owners and not to the operating company. It is therefore certain that so far as the water right is con- cerned no monopoly can exist in the irrigation busi- ness. The expression is generally associated with the hydraulic development of electric power, but, as all public utilities are subject to rate fixing by the proper state authorities, any control of output and prices can be terminated. According to present decisions the water right of power plants is vested in the owner thereof, and this must always be the rule where the riparian right exists. In the case of appropriation rights legis- lation should be adopted providing that appropriations for power purposes may be authorized as indeterminate licenses and that the water right shall be considered of no value in rate fixing and in condemnation by the state or other public unit. There is no more reason why a power company should be allowed to capitalize a water right than there is for an irrigation company. In regard to other franchises the courts have been doing their part in attempting to reduce fictitious capi- talization, and it is high time for all legislative bodies to positively provide for the elimination of any chance of capitalization in franchises granted by them or under their acts. Legislation Regarding Appropriations. Every western state has statutes fixing the pro- cedure to be followed in making appropriations. Ari- zona, California, Colorado, Kansas, Montana, Texas and Washington have departed little, if at all, from the 148 WESTERN WATER LAW method of posting notices. The remaining irrigation states have a central office, the state engineer's, in which applications for permission to appropriate water are filed and the conditions fixed under which the right 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 prac- tically no cases showing an abuse of the power of re- jection. 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 prac- tice has proved of great benefit to both the old and the new appropriators. It gives present users an opportunity to know about and protest 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 following the old method has instances of the construction of works whose operation was en- joined immediately 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 administration just as a modern auditing system makes it possible for a business house to more easily control its operations. Under the new system the appropriator is under state control from the initia- tion to the completion of his project. It is a control, however, which protects, rather than prohibits, bona fide projects. In those states using the old method of posting notices the records are useless as evidences of work actually done, and one is never certain of the status of his right during construction. In those states having no special legislation for the determination 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 THE DESIDERATUM 149 possible to have dozens of law suits over water rights on a stream without all the water users being brought into any one of them. The new system provides a method for the determination of all rights in a single proceeding. Colorado, Idaho, Utah, North Dakota, South Dakota, Oklahoma and New Mexico provide for adjudications directly by the courts, and Wyoming, Nebraska and Nevada determine rights through a non- judicial officer or board. Oregon in 1909, combined the two by providing for a determination by a board which must be affirmed or modified by the circuit court before becoming final. As the states in which rights are determined by a board have secured the best results, and, as the Ore- gon 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 enumeration above. So far as bringing all claimants into one action is con- cerned 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, therefore, 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 legislation 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 determination 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. The new legislation regarding water rights by 150 WESTERN WATER LAW appropriation effectively provides for the three essen- tials ; 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 rea- son 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 matters and bring about the de- sideratum in legislation regarding our public waters INDEX Abandonment of Water Rights 47 Acreage Irrigated in 1909 108 Irrigated by Commercial Enterprises 108 Irrigated by Irrigation Districts 137 Act of 1866 3, 4 Act of 1870 3 Act of March 3, 1891 96 Act of May 11, 1898 98 Act of February 1, 1905 98 Adams, Frank 137 Adverse use, title by 47 Anaheim Union Water Co. v. Fuller 23, 24 Anderson v. Bassman 85 Appropriation, doctrine of 1-10, 38- 46 Posting notices of 6, 8, 10, 80, 81 Not restricted to public lands 38 Waters open to 39 Proceedings to effect 41 Incomplete 43 Measure of right 44 Principles of 45 Legislation regarding 56-82, 147 Archer v. Chicago M. & St. P. Ry. Co 55 Arizona, Riparian doctrine 14, 51 Notice of appropriation 80 Area irrigated 108, 137 Commercial enterprises 108 Avery v. Johnson 39 B Bailey v. Tintinger 114 Bear Lake v. Budge , 79 Bear Lake Irr. Co. v. Garland 96 Bien, Morris 74, 75 Bien v. Morris 84, 93 Boehmer v. Big Rock District 23 Bonds, irrigation district 134, 135, 139, 140 Boquillas Cattle Co. v. Curtis 21 Brewer, Justice 87. 88 Broder v. Natonia Water Co 5, 6 Burley, v. U. S 129 Burr v. Maclay Ranche Water Co 33- 34 C California, statutes governing appropriations 7, 8, 9, 20, 21, 38, 43 Riparian doctrine 14, 23 Water right legislation 5(5 Irrigated area , . , 108 INDEX Commercial enterprises 108 Irrigation District Act 132 Area in Irrigation Districts 137 California Development Co 109 Carey Act 117- 122 State legislation 119 Development under 121 Carey, Senator 117 Choate, Joseph H 136 Clough v. Wing 1 Coffin v. Left Hand Ditch Co.. . , 12, 20 Colorado, Riparian Doctrine in 14 Water right legislation 57 Irrigated area in 108 Commercial enterprises in 108 Anti-Royalty Act Ill Carey Act Projects 121 Area in Irrigation Districts 137 Irrigation Districts 138 Commercial Irrigation Enterprises See Irrigation Enterprises. Conger v. Weaver 6, 9 Cookinham v. Lewis 82 Crawford v. Hathaway 78 Crocker Huffman L. & W. Co 110 D Desert Land Act 21, 22, 115- 117 DeWolfskill v. Smith 10, 41,< 94 Duckworth v. Watsonville 26, 38, 40 E Eddy v. Simpson 7 Estoppel 53 F Fallbrook Irrigation District v. Bradley 136, 141 Farmer Investment Co. v. Carpenter 78 Farmers Irrigation District v. Frank 66 Fisher, Secretary of Interior 130 Forest Service 43 Forfeiture of water rights 47 Fresno Canal & Irrigation Co 109 G Gage Canal Ill Gustin v. Harting 54 Gutierres v. Albuquerque Land Co 89 H Hanson v. McCue 29, 32 Hawley, Judge 45, 53 Heilbron v. Fowler Switch Canal Co 52 Hoge v. Eaton 84 Homestead Act 125 Hough v Porter 21, 22, 40, 49 Howell v. Johnson 84 INDEX Hudson, McClintock 35 Hudson Water Co. v. McCarter 93 I Idaho, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 67 Irrigated area in 108 Commercial enterprises in 108 Carey Act Projects 119, 121 Area in Irrigation Districts 137 Irrigation Districts. 138 Imperial Water Co. v. Holabird 112 Interstate Streams, water rights 83- 90 Inyo Water Co. v. Jess 43 Irrigation Districts 132- 142 California Act 132 Difference in Acts 134 Constitutionality of Acts 136 Operations under 136 In California 137 In Colorado and Idaho 138 Advantages and disadvantages 139 Irrigation enterprises, commercial 106- 114 Examples of 108-110 Regulation of Ill Types of 146 Irrigation v. Navigation 146 Irwin v. Phillips 2, 6 J Johnston, Clarence T 76 Jones v. Adams 12, 13, 20, 45 Jones v. Conn 22 K Kansas, Riparian doctrine 14 Notice of appropriation 80 Irrigated area in 108 Commercial enterprises in 108 Kansas v. Colorado 15, 86, 93, 129 Katz v. Walkinshaw 30, 33, 37 Kern Co. Land Co 108 King v. Chamberlin 41 L Lateral limits of riparian rights 22 Leavitt v. Lassen Irrigation Co 112 Legislation. See Appropriation, Riparian Rights, Perco- lating Waters, Water Rights. Le Quime v. Chambers 35 Lewis, Chief Justice 12 Lewis, State Engineer 79, 102 Little Walla Irr. Union v. Finis Irr. Co 144 Los Angeles, etc., v. Los Angeles 39 Los Angeles v. Pomeroy 29, 30 Lux v. Haggin , 12, 13, 20, 27, 31, 36, 37 INDEX Mo McClintock v. Hudson 35 McCoy v. Huntley 44 M Merritt v. Los Angeles 43 Miller v. Bay Cities Co 16 Miller v. Enterprise Co 39 Miller v. Fresno Plum Co 18- 19 Miller v. Madera Canal Co 15 Miller & Lux v. Madera Canal Co 22 Monopoly in Public Waters 146 Montana, Riparian doctrine 14 Notice of appropriation 80 Irrigated area in 108 Commercial enterprises in 108 Carey Act Projects 122 Area in Irrigation Districts 137 N Nation, State v. Rights of Way 103 Navigable streams, appropriation of 40 Navigation v. Irrigation 146 Nebraska, Riparian doctrine 14 Water right legislation 65 Irrigated area in 108 Commercial enterprises in 108 Area in Irrigation Districts 137 Nevada, Riparian doctrine 14 Water right legislation 73 Irrigated area in 108 Commercial enterprises in 108 Carey Act Projects 122 Area in Irrigation Districts 137 New Mexico, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 74 Irrigated area in 108 Commercial enterprises in 108 North Dakota, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 74 Irrigated area in 108 Commercial enterprises in 108 Notice of appropriation, example of 10, 80 O Oklahoma, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 74 Ophir Mining Co. v. Carpenter 42 Oregon, Riparian doctrine 14, 22, 26 Forfeiture of rights 48 Water right legislation 76 Irrigated area in 108 Commercial enterprises in . 108 INDEX Carey Act Projects 122 Area in Irrigation Districts 137 P Pacific Gas & Electric Co 109 Patterson Land Co 110 Percolating waters, definition 28 Law of i 28 Rule of v. Rule of Riparian Rights 35 Legislation Regarding 143 Posting notices of appropriation 6, 80 Power purposes, water rights for 101 Prescription, title by 47 Prior appropriation. See Appropriation. Pueblo rights 29- 30 R Reasonable diligence 41 Reclamation Act 123- 131 Reclamation Fund and Irrigation Districts 140, 141 Relation, Doctrine of 6, 7, 9 Revocable license 55 Rights of way 94, 105 By prescription 55 Power purposes 99 Rincon Water Co. v. Anaheim 43 Riparian Rights in the Western States 11- 27 Early decisions 11 States adopting and those rejecting 20 Lateral limits 22 Restricted to riparian land 26 Summary of Principles 27 Rule of v. Rule of Percolating Waters 35 Legislation regarding 143 Rogers v. Overacker 53 Ross, Justice 14, 31 S Sacramento Valley Irrigation Co 110 Sacramento West Side Irrigation Co 110 San Diego L. & T. Co 109 San Joaquin & Kings R. C. & I. Co 108 San Joaquin & Kings R. C. & I. Co. v. Stanislaus Co 113 Schodde v. Twin Falls Land & Water Co 144 Shaw, Justice 31 Smith v. Hawkins 49, 50 Smith v. Hope Mining Co 47 South Dakota, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 74 Irrigated area in 108 Commercial enterprises in 108 Stanislaus Water Co. v. Bachman 112 State v. Nation, rights of way 103 Statute of limitations 51 Stewart v. Boise, etc 70 INDEX Still v. Palouse Irrigation & Power Co 22 Stover, A. P 121 T Temple, Justice 29, 31 Texas, Riparian doctrine 14, 24 Notice of appropriation 80 Irrigated area in 108 Commercial enterprises in 108 Turley v. Furman 92 Twaddle v. Winters 15 U Underground waters, law of 27- 37 Union Mill v. Dangberg 45, 53 Union Mill, etc., v. Ferris 4, 11 United States v. Hanson 123, 129 United States v. Rickey Land & Cattle Co 95 United States v. Rio Grande 40 Utah, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 70 Irrigated area in 108 Commercial enterprises in 108 Area in Irrigation Districts 137 Utt v. Frey 47 V Vanderwork v. Hewes . . . .* 41 Van Sickle v. Haines 4, 11, 12, 27, 45 Verdugo Water Co. v. Verdugo 54 W Washington, Riparian doctrine 14 Notice of appropriation 80 Irrigated area in 108 Commercial enterprises in. 108 Water rights, loss of 45- 55 Legislation 56-82, 143- 147 Legislation, review of 77 On interstate streams 83- 90 Court decisions 84 Power purposes 101- 102 Who owns 112 Watkins Land Co. v Clements 24 Weldon, Judge 43 Wheeler v. Northern Col. I. Co 113 Wiel, Water Rights in Western States 25 Willey v. Decker 84 Wright, Senator C. C 132 Wyoming, Riparian doctrine 14 Forfeiture of rights 48 Water right legislation 61 Irrigated area in 108 Commercial enterprises in ; 108 Carey Act Projects 119- 122 Area in Irrigation Districts 137