113 



(1) That, tho riolit lieing for use, it could not be sold. If Xo. 1 

 did not wish to use the water, it belon<>ed to Xo. 2. 



There were certain other features of this sale which make its 

 validity a menace to the State's ao-ricultural development. The seller 

 of the right does not relinquish the right to irrigate a single acre of 

 his 700. The buj^er does not designate how many acres he proposes 

 to irrigate, or whether he will use it for irrigation. lie does not 

 name the ditch in which his purchased right is to be turned. 



The water commissioner or the State board of control has no official 

 knowledge as to where the purchaser of this right will use the water 

 next year, or apparently any official control as to the ditch into which 

 it shall be turned or the land on which it shall be used. The laws 

 of the State recjuire careful surveys to be made at the State's expense 

 to determine the lands entitled to water, but if the right can be 

 separated from these lands without any examination and shifted 

 from place to place without an}^ control by the State authorities, 

 then this expenditure in the location of the irrigated areas is a waste 

 of time and money. The State board of control is by the constitu- 

 tion given control over the appropriation of water and its distribu- 

 tion, but this board was not consulted with reference to this sale. 

 Xo copy of the deed of transfer has ever been filed with the board. 

 Except for the litigation, its authority in this matter was never 

 recognized. Even noAv the board has no official knowledge of where 

 the water purchased is to be used and no standard by which it can' 

 limit the area to which it is applied or protect whatever rights 

 priority Xo. 2 may have in the running stream. The decision seems 

 to be based on the assumption that there was granted to the first 

 appropriator a right to 10 cubic feet of water per second of time. 

 If this assumption were correct, then there Avould be a strong pre- 

 sumption that the holder of the certificate of approjn-iation was 

 authorized to sell his right to this water for half the time, but this 

 assumption is not supported by the certificate which first defined the 

 right and is not in accord with the rulings of the board of control in 

 interpreting these certificates, the language of the certificate in this 

 case being: '' The Springvale Ditch Company, by reason of the con- 

 struction of the Springvale ditch and the beneficial use of water for 

 irrio-ation, is entitled to sufficient water from Little Horse Creek to 

 irrigate 700 acres of land." 



This, as Avas pointed out by State Engineer Bond, in his report 

 for 1899-1900. page 45, is something entirely different from a right 

 to a continuous flow of 10 cubic feet per second or any fixed volume 



of water. 



Such an interpretation of the certificates issued by the State board 



