104 



pliicc \\ill not 1)0 included. Avhich will make necessary new adjudica- 

 tions from time to time. If all existinu' rio-hts are delined and new 

 ones are acijuired only under the sui)ei-vision of the State eno;ineer, 

 this necessity for periodical adjudication will he (h)iie away with. For 

 securino- a complete list of existino' riyiits the present law has two 

 serious defects. Adjudications will take place only on the initiative of 

 the holdei-s of riuhts. and if the\- are indisposed to take the matter up, 

 rights may remain undetined for years. This has heen the experience 

 in Idaho, where a law was passed which authorized the State authori- 

 ti(\s to heyin such actions. The enforcement of this law was fouo"ht 

 by the farmers who did not want to stand the expense of adjudication, 

 aiul the law was declared void by the State courts (Bear Lake Co. r. 

 Budge, 75 Pac, 615). But some way of forcing adjudication is abso- 

 lutely essential to any orderly public control. Wyoming, Nel)raska, 

 Utah, and Nevada ha\'e such systems. Those in Utah and Nevada have 

 not been tested in t,he courts, l>ut the Wyoming and Nebraska laws have 

 been repeatedly upheld 1)y their State courts. Under these laws. State 

 ofhcials make surveys and measurements of the ditches and irrigated 

 lands, and take testimony as to dates of construction and other facts 

 bearing on the dates of acquirement and volume of rights, and on the 

 liasis of the surveys and the testimony detine the rights. Appeal from 

 such decision to the courts is provided for. but is not generally taken. 

 The second serious defect with the present Montana system is that no 

 provision is made for surveys to secure the facts as to capacities 

 of ditches and areas irrigated. Decisions as to rights which depend 

 entirely on these facts, so far as their volume is concerned, are based 

 entirel}' on interested testimony. Whether rights are detined by 

 administration officials or ])v the courts this exact knowledge as to 

 physical facts is essential to just conclusions. In Utah, Idaho, and 

 Oregon rights are dehned by the courts, but the law provides for 

 surveys by the State engineer as a pait of every adjudication. In 

 Wyoming, Nebraska, and Nevada riohts are detined t)y administrative 

 officers as the l)asis of such surveys. 



This work involves the use of substantial head gates to control 

 diversions and suitable measuring devices to determine the How. 

 These structures should l)e inserted by and at the expense of the 

 respecti\ e owners under the supervision of the State engineer. As 

 th(>se structures will cost a consideral)le sum the cost of making the 

 hydrographic survey and the necessary maps and compilations should 

 Ije paid by the State. The genei'al tx-nctit from this work is surely 

 suflicient to justify the State in bearing this expense. 



The system of State conti'ol of iri-igation reconunended is based 

 upon the police power of the State. In several States th(^ unappropri- 

 ated waters an> declai'cd to be the property of the State as a basis for 

 laws controlling the acquirement of rights and the distribution of 



