114 



of control will greatly expaiul the volume of Avater controlled by 

 them over that controlled under the interi^retation heretofore main- 

 tained by the State irrigation authorities. As stated, these certifi- 

 cates give only a right to the maximum amount of water during the 

 times it is needed. Under this recent interpretation it gives a righl 

 to the maximum amount of water all the time. It renders practically 

 meaningless the law requiring the water commissioner to prevent 

 waste. If each right is for a certain number of cubic feet per second 

 flowing all the time, then the appropriator, if he does not desire to 

 use it all the time, can, as in the Little Horse Creek case, sell it to 

 some one who does. What should be treated as a surplus becomes a 

 property of great speculative value. 



Repeated measurements in Wyoming have shown that water is 

 not used in irrigation more than one-third of the j^ear, and the maxi- 

 mum amount is not used more than thirty days in the year. The 

 tendency of this decision will be to augment the value of early rights 

 by extending the use of water under them. It is true that the 

 decision holds that increased use is not lawful, the language being as 

 follows : 



An individual appropriator of water for irrigation secures no surplus water ; 

 hence he has no surplus which he can either sell or give to another, as against 

 subsequent appropriations. His appropriation, and therefore his water right 

 dependent thereon, is at all times limited, within the maximum of his appro- 

 priation, to tlie quantity capable of beneficial use and actually so used. If 

 during any period he does not require the use of the water, it falls during that 

 period to the subsequent appropriator who does need the same and can bene- 

 ficially use it. * * * In other words, the biu'den upon the use must not be 

 enlarged beyond that which rested iii)on it under the original appropriation, 

 and while in the hands of the original ai)propriator. as he was entitled to and 

 did use it. This principle is the necessary result of the fact that the only 

 property in the water owned by the appropriator is a right t(j use it as 

 measured by his appropriation. 



In recognizing the validity of this sale, however, the court estab- 

 lished a principle which makes the enlargement of rights not only 

 possible but inevitable. In this particular transaction the seller 

 retains his right to irrigate 700 acres of land, the buyer acquires a 

 right to 10 cubic feet of Avater per second for half the time, with no 

 restrictions as to where or how he is to use it. 



SUMMARY. 



This review has omitted many statements of specific facts because 

 these are given in Mr. Teele's discussion. They seem to warrant the 

 following conclusions : 



(1) That the rights as established, if measured by the original 

 use, are for excessive amounts of water. 



