105 



water, hut in \Vv()iniMii\ the only State havin*^- a constitutional dcelara- 

 tion that the water l)elono-s to the State, the supreme court has lield 

 that ""The pul)lie ownership * * * is rather that of sovereign 

 than proprietor,'' thus basino- the hiws of that State on its police power 

 rather than on its ])i'()prietorship of the water (Willey /". Decker, 73 

 Pac, lilO). The Colorado constitution declares that the unappro- 

 priated waters of that State are the property of the pul»iic. and its 

 court has repeatedly u))hel(l its ii-rioation laws as a pro|)er exercise of 

 its police })ower. The constitution of Montana declares that the I)ene- 

 ticial use of water is a public use, and any further declaration on this 

 subject is not deemed necessai-y. 



The additional dat:i reciuired for proper adjudication of ritihts con- 

 sist of reliable testimony pertaining to the dates of appropriation of 

 existing rights and accurate information regarding the early use of 

 water from each ditch and the subse({uent eidargement. if any. The 

 codes of Western States differ as to the methods of procedure of obtain- 

 ing these additional facts and of making the final determination of 

 water rights. In Utah the district court appoints from one to three 

 referees; in North Dakota the attorney -general, aided b}^ the district 

 attorneys of the districts affected, bring suit, while in Wyoming the 

 adjudications are made by a l)oardof five State oflicers, the majority' of 

 whom are thoroughly familiar with the character of the stream imder 

 consideration, the nature of tlie diversions, the character of the land 

 irrigated, and the kind of crops grown. The vital point involved is 

 that the settlement of these questions shall be placed in the hands of 

 men having an expert knowledge of canal management and the practi- 

 cal retpurements of ii'rigated agriculture. A duty of such far-reach- 

 ing imi)ortance should not be imposed on eithei' the attorney -general 

 or the judges of district courts for the reason that they may be too 

 much burdened with other duties to give the necessary time and 

 thought to such water suits. 



DUTY OF WATEil. 



In ^lontana at least one-fourth of the total availal)le stream flow 

 in summei" is now diverted and applied to land. In defining the rights 

 which have been acquired no fixed general duty can be legally estab- 

 lished, since each water-right owner is entitled to the amount of water 

 which he-has been accustomed to apply in an economical wav. The 

 duty of water for such rights must therefore be l)ased on beneficial 

 use rtiid may vary with the length of the irrigation season, the char- 

 acter of the soil, nature of the crops, etc. 



In the case of rights to be acquired the State has a free hand, and it 

 may place a maximum limit on the amount of water which may be 

 diverted to irrigate a given area of land. In the opinion of the writer 

 this maximum amount should not exceed 3 acre-feet. Fifteen inches 



