97 



Rights may be transferred in all of the States witli tlio possible 

 exception of Nebraska. In order that the list of rights may at all 

 times be correct, it is necessar}' that these transfers be recorded with 

 the State engineer. Correctness and accuracy require nothing more 

 than this. It is, howeyer, a fundamental part of the law of transfers 

 that they can be made only wlien the rights of others are not injured. 

 Originally there was no pro^^sion for determining in advance of the 

 transfer whetlier the rights of others would ])e injured thereby. The 

 usual procediu'c was to make the transfer, after which those claiming 

 to be injured were compelled to bring action to jireyent it. This 

 placed the burden of determining wliother a transfer might l)emade 

 upon those who might be injured rather than u])on those who are to 

 receive the benefit. Recognizing this, Colorado requires that the 

 party wishing to make a transfer apj)ly to the court haying jurisdic- 

 tion of the stream, and the transfer is allowetl only after a hearing 

 similar to that held in connection with defining rights. Idaho, 

 Nevada, North and South Dakota, and Oklahoma re({uire that appli- 

 cation must be made to the State engineer, who is to hold liearings, 

 after a proper advertisement, and determine in advance whether a 

 proposed transfer can be made without injury to other rights. Wyo- 

 ming gives the engineer authority to recognize a transfer or refuse to 

 do so, after which either party may appeal to the court. Since the 

 question whether the transfer of a riglit will injure others is entirely 

 one of physical facts and does not involve any legal questions, it 

 seems that this matter is more properly left with the State engineer, 

 who is a liydraulic engineer, than with the courts. The essential 

 requirements regarding transfers are that there shall be a record 

 and that it shall be determined in advance whether the rights of others 

 will be injured. 



Having a complete list of all rights to water, the officer charged 

 with its distribution needs also a knowledge of the supply wdth which 

 to satisf\^ these rights, and all the States having engineers provide 

 for the making of stream gaugings. It is also essential that he have 

 means of measuring accurately the quantity of water delivered, and 

 means of controlling this. Most of the States have provided for this 

 by requiring ditch ow^ners to put in head gates and measuring devices 

 on the request of the water officials. Various means of enforcing 

 this provision, in case the owners refuse to put in the structures, 

 have been tried, such as having the official put them in and collect 

 the cost through the county commissioners or by suit in the court, 

 or having the county commissioners put in the structures and tax 

 the cost against the property of the ditch owner. All such systems 

 have proved ineffective, partly because county commissioners are 

 apt to be in sympathy with the ditch owners and refuse to act, and 

 partly because of the delay which is unavoidable where so many 

 different agencies are required to act. The only provision which has 

 31 774 -No. 168—06 7 



