68 



to the stream must be tied to a government comer or mineral monu- 

 ment if there is one witliin 6 miles. When an application is received, 

 it is recorded at once if it is accompanied by the proper fees. If the 

 fees are not paid, no record is made, })ut the applicant is notified and 

 tlie a])plication is indorsed as received on the date when the fees are 

 j)ai(l and then recorded. It is then examined to see that it contains 

 the required facts. If it does not, it is sent back for correction or 

 additions. If it is not corrected as required, no further proceedings 

 are had. When the application is in proper form, the engineer at once 

 })ublishes at the expense of the applicant a notice of the application. 

 This notice must be published in a newspaper having general circula- 

 tion in the river sA^stem referred to for thirty days. In addition to the 

 description of the proposed diversion, the published notice contains 

 the statement that ''all protests against the granting of said applica- 

 tion, stating the reasons therefor, must be made by affidavit in dupli- 

 cate and filed in this office within thirty days after the completion of 

 the publication of this notice." The expense of publication has been 

 from $7.50 to $1S, depending on what paper it was published in. A 

 good many applications have been dropped at this point because of 

 the cost of advertising. 



Although protests should be in the form of affidavits, informal pro- 

 tests are sometimes received and recognized in case formal protest is 

 made within a reasonable time and accompanied by the, proper fee. 

 The law passed in 1903 provided for a hearing on a protested applica- 

 tion, but when the engineer attempted to hold such a hearing it was 

 ])rohibited by order of the court, on the ground that that pro\nsion of 

 the law was unconstitutional, because it attempted to confer judicial 

 power on the State engineer, and under this provision the engineer 

 claimed the power to determine rights to water. The contention of 

 the engineer was that the applicant had as yet no right to be deter- 

 mined and that the hearing was simply an inquiry to learn whether 

 there was water in the source of supply to which the applicant might 

 acquire a right. This case was decided against the engineer and that 

 provision of the law has been repealed. Under present practice all 

 protests are sent to the applicant, who has an opportunity to file 

 an answer called a ''rebuttal protest," and he is requested to make 

 this in the form of an affidavit. In some cases the protestant has 

 l)een allowed to answer again. After these formal papers are all in, 

 the engineer sometimes talks the matter over with the parties inform- 

 ally before making his decision. Either party may appeal to the 

 courts from the decision of the engineer. As passed in 1903, the law 

 empowered the engineer to reject an application when there is no 

 unappropriated water in the proposed source of supply or when the 

 proposed use will conflict with existing rights or threatens to prove 

 detrimental to the public interest. The engineer refused an applica- 



