114 



THE IRRIGATION AGE. 



who is using the water for a proper purpose, as for 

 the purpose of irrigating his lands. 



Having acquired the right to the beneficial use of 

 water, the proprietors of a canal may dispose of it in 

 any manner they see fit, and at any price they may 

 fix, provided only it be reasonable and equitable. 

 Thus the proprietors of a canal will not be permitted, 

 even in the absence of statutory regulations, to fix 

 an extortionate price, which practically means the 

 prohibition of all use of the water, for no man can be 

 permitted to do indirectly that which the law prohib- 

 its him from doing directly. In the absence of a stat- 

 ute governing, it js thought that the price charged for 

 water must be an equitable one; in other words, such 

 an one as will yield a profit on the investment, and 

 enable the farmer to pay the rental, and yet secure a 

 fair return for his labor. In Montana it is provided 

 by statute that the county commissioners may fix 

 the price to be charged for water. As a general rule, 

 however, canal proprietors prefer to fix such a price 

 for the use of the water flowing in their canal that 

 there will be no occasion for the interference of the 

 public officers. 



A canal company which has been selling a right to 

 the beneficial use of its waters at a stipulated annual 

 rental may at any time change the method of dis- 

 posing of such use, and charge a fixed price for per- 

 manent water rights in addition to a specified annual 

 rental, so long as they do not thereby impair or inter- 

 fere with any vested rights of the owners of land 

 under the canal. They may not only do this, but 

 they may also require that the water rights be taken 

 within a certain time, and if they are not taken within 

 that time by the owners of the lands under their 

 canal, give notice that they will sell such water rights 

 to any other person or persons, or that they will even 

 refuse to sell them to any one. 



It is thought that the only effect such proceedings 

 would have upon any owner of lands under the canal 

 would be to subject him to the liability of losing his 

 right of priority to use, and if the appropriation of 

 water was not sufficient to supply all the lands under 

 the canal, he might be cut off entirely of any right 

 to participate of the beneficial use of such water. 

 Where water is flowing in a natural channel, the law 

 is that "he who is prior in time is prior in right," 

 regardless of his location on the banks of the stream. 

 An irrigation canal is merely an artificial channel or 

 stream flowing through the land, and the same rule 

 applies "first in time, first in right." 4 But it is 

 thought that so long as there is water flowing in the 

 canal, the right to the beneficial use of which is not 



sold and actually used, the land-owner failing to take 

 out a water right for his land will be entitled to the 

 use of as much of such surplus as his land may re- 

 quire, provided only there be so much, upon the pay 

 ment of the fixed rental therefor. 



It is a common practice with canal companies to 

 sell what are known as " floating water rights." So 

 far as the writer is aware, the legality of such sale of 

 water rights has never been raised in any adjudicated 

 case and the status of the holders of such water 

 rights judicially determined. On principle, however, 

 it would seem that such a speculation in water rights 

 is a hazardous enterprise, where the purchaser is not 

 an owner or holder of land under the canal which 

 may be benfited thereby; for while water used in 

 irrigating land is in many respects different from un- 

 appropriated water flowing in a natural channel 

 through the land, and has been said not to be apper- 

 taining to the land, 6 yet under an order from the 

 county commissioners, who by law are designated to 

 fix water rentals, the land owner who did not obtain 

 a water right may still obtain water; 1 and in the 

 absence of statutory legislation on the subject, the 

 company would be held, at common law, to have sub- 

 mitted itself to a reasonable judicial control, invoked 

 and exercised for the common good, in the matter of 

 regulations and charges; and an attempt to use its 

 monopoly of water for the purpose of coercing com- 

 pliance with unreasonable and extortionate demands 

 would lay the foundation for judicial interference, 

 and a mandamus would issue. 8 



From this it follows as a corollary that if a person 

 who has been taking water from a canal company at a 

 stipulated annual rental, neglects or refuses to take 

 out a water right in compliance with a demand of the 

 company as above suggested, so long as there is 

 a surplus of water unappropriated to actual use, and 

 which is running to waste for want of such actual 

 use, he will be entitled to receive and use that water 

 upon his land, upon application to the company and 

 payment of reasonable charges therefor, notwith- 

 standing the fact that floating water rights have been 

 disposed of to persons other than actual owners of the 

 land under the ditch, and the company has no more 

 water rights for sale. It goes without saying that it 

 would be otherwise wh< re the water is all actually 

 used, under such sale of water rights, on lands prop- 

 erly under the canal. 



NOTES. 



The notes of reference to legal decisions accom- 

 panying the article of Judge Kern's will be found on 

 page 125. 



