THE LAW OF WATER OWNERSHIP. 



is the common property of all mankind) 6 attempted 

 to be drawn between the title to water and the right 

 to its use, js purely mythical and imaginary, and the 

 sooner it is dropped and the two treated as identical, 

 the better, and less confusion will exist." 



The right to appropriate water is not conferred on 

 individuals alone, but upon corporations and associa- 

 tions, and what is said heretofore or hereafter in re- 

 gard to the rights of individuals will also apply to 

 corporations, and vice versa, for I hold that the per- 

 son or the canal company that diverts the water is 

 the appropriator. 



The canal companies, whether associations or cor- 

 porations, are not common carriers in any sense what- 

 ever, as claimed by some writers, and in some decis- 

 ions of the courts. 



The common carrier is one who for hire or reward 

 undertakes to transport the goods of such as choose 

 to employ him, from place to place. 



The canal company that constructs its canals and 

 diverts the water from the natural stream, intending 

 to convey it to the consumer, cannot, from the very 

 nature of the business, be a common carrier. The 

 water to be diverted is not the property of the con- 

 sumer until it is delivered 10 him. 



The water is not delivered by the consumer to the 

 canal company for transportation. The contrary 

 must be the case to constitute the canal company a 

 common carrier in any sense whatever. 8 



The consumer does not divert the water from the 

 natural streams and has no interest in the diversion 

 or the means of diversion as an individual, and con- 

 sequently he has no proprietary interest in the di- 

 version. 



The water can only be appropriated from the nat- 

 ural streams. The person or company that makes 

 the diversion for the beneficial use is the appropria- 

 ator, and if the water is so diverted in order to be 

 supplied to the consumers, it is for a beneficial pur- 

 pose. 9 



Under the pr. sent statutes of the United States, 10 

 and the States, dams may be constructed, and the 

 water impounded and held for future use. 



In other words, it may be hoarded from the general 

 public for the benefit of the company and delivered 

 to its patrons, when it can be done advantageously to 

 the company and the consumers. Under the benefi- 

 cent provisions of the law, the company may ex- 

 pend a large amount of money in constructing its 

 dams and canals, with the hope of large gains. 



Having acquired the right to hold and transport 

 the water to the consumers to the extent that it finds 

 consumers for a bene'ficial use, it may sell or lease it 

 to the consumers at such rates as the company and 

 the consumer may agree upon. The rates are subject 

 to legislative control, but rarely, if ever, have the 



rates been so unreasonable as to invoke such inter- 

 ference. 



To fix extortionate rates would be to defeat the ob- 

 jects of the company. The success of an irrigation 

 enterprise must depend upon the success of the con- 

 sumers of the water. To impose upon the farmers 

 under the canal water rates so excessive as to make 

 farming unprofitable would result in dismal failure to 

 the supplying company as well as the consumer. No 

 general standard of fair and reasonable rates can be es- 

 tablished. What would be equitable and reasonable 

 for the consumer in one locality would be extortionate 

 in another. So what would be equitable and reason- 

 able for one company would not pay a reasonable in- 

 terest on the investment of another company. The 

 method of doing its business is, of course, at the op- 

 tion of the company. It may loan or sell its water 

 rights or privileges and it may lease or sell the water 

 it supplies. 



The practice of selling floating water rights 

 adopted by some companies as an expedient for rais- 

 ing money is open to criticism and should be dis- 

 couraged. It opens the door (and there should be 

 none) to speculation in privileges. If a company de- 

 sires to keep itself free from harrassing litigation, its 

 methods of business should be such that all consum- 

 ers shall enjoy the same privileges at the same price. 



As before stated, the consumer taking water from 

 the canal of another cannot make an appropriation. 11 

 Consumers have only such rights as they have ac- 

 quired by contract, purchase or lease from the com- 

 pany that appropriates and supplies the water. 12 

 Hence there exists no priority of right to the water 

 from the canal between the consumers. 



Could any other construction be placed upon the 

 statutes it would very seriously affect the value of 

 property invested in canals and reservoirs, and would 

 lead to much confusion and possibly t'o annoying 

 litigation. 



NOTES. 



1. Revised Statutes of Arizona, page 558, Sees. 1, 2, 3, 25 and 27. 



2. The appropriator becomes the proprietor of the water, or 

 the use of the water (it is immaterial which term is used, they 

 are in effect the same), and he remains the owner of the use so 

 long as the beneficial use to which it was appropriated is con- 

 tinued. 



Wyatt v. Larimer & Wild Irrigation Co., 27 Pac. Rep. 

 page 906. 



3. He has property in a commodity, that he can deal with, 

 transfer and deliver to the consumer or user. 



I. D. pages 911 and 913. 



The right to water acquired by appropriation may be trans- 

 ferred like other property. 



McDonald v. Bear R. Co. ,13 Gala 220. 



The owner of the ditch has the exclusive power to control, and 

 right of enjoyment of the water diverted by and flowing in his 

 ditch; but whether such water be his private property it is not 

 necessary to decide. 



Kidd v. Laird, 15 Gala. 162. 



