107 



statute this is the view which shouhi have prevailed. Instead of this 

 idea of use governing the right, the huigiiage of the statute is con- 

 strued to mean that in order to maintain an appropriation the holder 

 of it must either use the water or provide for its use by others. 

 That is, he can not hold the water unused. There is thus established 

 a property right in the stream, and instead of the necessities of the 

 land irrigated being the measure of the right, there is acquired an 

 a Impropriation of a certain number of cubic feet of water per second 

 as an equivalent of the amount originally used; then the idea of 

 beneficial use soon loses its practical significance. If, in addition to 

 this, A and B and C, after they have each ac(pnred a right to a cer- 

 tain number of cubic feet of water per second, can sell those several 

 rights to D, and D in turn can combine these several appropriations 

 and peddle out the water so controlled to individual users, the lan- 

 guage of the statute regarding beneficial use becomes largely mean- 

 ingless as a limitation on appropriations. If A and B and C can sell 

 their rights to D, why should the State insist on beneficial use at the 

 outset? Why not the State sell this right to D in the beginning? 

 Why not do directly what is accomplished in this way indirectly? 

 Why assume to create users' rights when really creating property 

 rights in the public water supplies? 



Another danger of recognizing sales of appropriations in a run- 

 ning stream and the shifting of the diversions of water which goes 

 with these sales is that it offers a serious obstacle to the action of the 

 State in dividing the stream between appropriators. It must be kept 

 in mind that the water diverted is not all destroyed. A considerable 

 portion returns to the stream as waste or seepage. In some cases as 

 high as TO per cent of an appropriation comes back to the stream and 

 is available for the use of other appropriators below, and on an aver- 

 age one-third of the water diverted comes back. Manifestly the loca- 

 tion where an appropriation is used has much to do with the value 

 of rights below it. If priority Xo. 1 is originally diverted above 

 priority No. 2, Xo. 2 can not only avail himself of the surplus water 

 which passes Xo. I's head gate, but of the seepage water of Xo. Vs 

 appropriation which returns above Xo. 2's head gate ; but if priority 

 Xo. 1 is later on sold and moved downstream below the head gate of 

 Xo. 2, then Xo. 2 loses all the benefit of return seepage. It is true 

 that the laws state that transfers shall not be made which injuriously 

 affect the rights of other appropriators, but until recently these laws 

 hare put on other appropriators the burden of protecting their riglits 

 through litigation, and many grave injustices have been consunnnated 

 because those injured had not the means or time to engage in litiga- 

 tion. In all cases the question of injury should be determined by an 

 impartial investigation of the State engineer's office, and no transfer 



