20 



THE IRRIGATION AGE. 



Water when collected in reservoirs and pipes, and thus separ- 

 ated from the original source of supply, is personal property, and 

 is as much the subject of sale, an article of commerce as other 

 goods and merchandise. 



29 Pac. Rep., pages 911 and 913. 



4. While it so remains the subject of exclusive ownership and 

 control, it is the property of the appropriator in every legal 

 aspect. 



Id. page 910. 



26 Pac. Rep. .page 313. 



5. By such appropriation and by reason of the diversion and 

 separation of the water from the volume of the stream, the title 

 of the public or the people was divested, and the appropriator 

 became the owner. Cleared of all embarrassment by reason of 

 the supposed double ownership, we find the rights declared in the 

 constitution to be the same that were recognized before its 

 adoption. 



29 Pac. Rep., page 911. 



6. Wyatt ?'. Larrimer & Weld Irrigation Company, 29 Pac. 



Rep., pages 912 and 913. 



7. Id., page 913. 



8. These definitions are so elementary that they would not be 

 stated, except for purposes of illustration, to show that in the 

 case presented the corporation is not brought within the defini- 

 tion, in any respect, of either a "common" or "private" carrier, 

 coming nearer the definition of " private " than " common " car- 

 rier, but lacking several indispensable elements of either. 



In order to constitute a carrier of either class, (1) the goods to 

 be carried must be the property of the bailor. (2) The thing 

 must be delivered by the bailor to the carrier to be transported. 

 (3) The carrier must transport and deliver to the consignee the 

 identical goods delivered to him for transportation. (4) A person 

 who contracts to transport and deliver to another at a given place 

 a certain portion of a common lot of material, to be separated 

 from it at the place of the consumer, to which the consumer had 

 no title prior to the transportation and delivery, is in no sense a 

 carrier, but a vendor of the commodity. 



Wyatt 7'. Larrimer & Weld Irrigation Company, 29 

 Pac. Rep., page 909. 



9. The canal company, the appropriator, has a proprietary 

 right to the water diverted. 



Id., page 911. 



10. Act of Congress entitled, An Act to repeal Timber Culture 

 laws, and for other purposes. 



Approved March 3, 1891. 



11. The constitution recognizes priorities only among those 

 taking water from natural streams. 



Reservoir Co. v. Southworth. 

 21 Pac. Rep., page 1028. 

 29 Pac. Rep., page 912. 



12. That the rights of the complainants to equitable relief must 

 depend solely upon the contracts made by them with the company. 



29 Pac. Rep., 913. 



THE CATASTROPHE AT LIMA, MONTANA. 



BY J. M. GOODWIN. 



THE sudden emptyings of reservoirs in Idaho and 

 Montana lately should teach some very important 

 lessons if the facts and conditions are properly studied 

 and heeded. It has been shown that the flood in 

 Idaho, in March last, by the breaking of the dam 

 came from inferior construction with unfit materials 

 and in which case the dam was washed out. In early 

 May a very different problem was presented in the 

 case of the emptying of the reservoir belonging to the 

 Lima, Montana, company where the dam was left in- 

 tact. While the flood was quite disastrous in cover- 

 ing lands with debris, washing away of soil from 

 fields and flooding lands and buildings, the losses from 

 these causes alone were not very great. The valleys 

 of Red Rock and Beaverhead were wide enough to 

 permit the water to spread out and hold back the tor- 

 rents to such an extent as to make the progress of the 

 flood downstream very slow. It is 1 doubtful if there 

 is a more enticing place in all the country for throw- 

 ing a dam across a stream to secure a great storage 

 reservoir than was the one selected by the company 

 that put in the dam twelve miles above Lima. It was 

 in a deep, narrow canyon, requiring a short dam and 

 which was easily constructed with material on each 

 side. On -the left hand side the hill rose abruptly 



from the water and it was a solid* mass of conglomer- 

 ate held by nature's own and best cement. On the 

 opposite side the hill was made up of gravel, boul- 

 ders, sand, etc., much stratified, being all secondary 

 deposit, or " wash,'' and of ample strength to hold 

 back the water in the reservoir had it not been un- 

 wisely cut. While that was really the weak point in 

 structure it would have stood more than the pressure 

 alone, and which did not cause its destruction, as will 

 be shown later. These hill sides hedging in the 

 stream were covered with brush, all of which was 

 rooted out and burned, leaving the surfaces in good 

 condition for putting in the earth and stone work of 

 the dam. At the bottom of the stream the space 

 between walls was only fifty feet, while forty feet up 

 it was 110 feet. A trench fourteen feet wide and 

 fourteen feet deep was sunk clear across this space 

 of fifty feet and masonry of stone and Portland ce- 

 ment put in having sixteen feet base and tapering to 

 six feet at the top, a point ten feet below the top of 

 the dam. This wall was bounded with the hill on 

 each side and formed the core of the dam, the main 

 structure being earthwork. Transversely the dam had 

 a base 300 feet wide while the center on top was forty 

 feet wide, the two slopes having a rise of one foot in 



