IRRIGATION PRINCIPLES. 



I. WATER RIGHTS. 

 BY WM. HAM. HALL, MEM. AM. SOC. C. E. 



HPHE fundamental principles guiding the develop- 

 ment of irrigation in a country are found in its 

 laws of waters. These have been evolved with 

 and are dependent upon governmental rights and 

 ownership of streams and their beds and banks, and 

 the laws on which rest individual rights in property. 



Aside from systems which may be classed as 

 Mohammedan, Tartar, Hindu, Mongolian, and Con- 

 fucian, found in such great irrigation countries as 

 Turkey, Egypt, Turkestan, India and China, and 

 others dominated and shaped purely by the monar- 

 chical idea of sovereignty, there are two great systems 

 of law, each claiming a more liberal foundation, and 

 each widespread in many lands. 



The civil law was the crowning feature of civiliza- 

 tion under the Roman empire. The countries of the 

 German empire, Holland, Belgium, France, Italy, 

 Spain, Mexico, and many others have it to-day. 



The Common law is the envelope of civil liberty as 

 it has developed with the English people. England, 

 most of her colonies, and nearly all of the States of 

 our Union have the Common law. 



The first system, as it came to modern peoples, 

 was then already pure and complete, codified after 

 long centuries of application, and formulated through 

 pure reason on principles of justice and equity, by 

 minds as great and acute to the perception and 

 ordering of these as any which modern enlightenment 

 can boast. 



The second is the result of gradual development, 

 arrived at by the adjustment of principles to cases 

 arising from time to time. It started amid conditions 

 the outgrowth of the feudal system of mediaeval 

 times. And .feudal rights and privileges largely 

 influenced those portions of the Common law system 

 relating to streams and waters. 



WATER UNDER CIVIL LAW. 



Under the Civil law water is the common property 

 of all people. Except in that measure actually 

 necessary for individual use it cannot be made the 

 personal property of any man. A stream's channel 

 maybe in private ownership; and so, its banks; but 

 its water is owned in common by the people at large. 

 A stream may be public as to banks, bed and sur- 

 face, but the water of this, too, is in distinct owner- 

 ship, undividedly, in the people of the country. They 

 each have a proprietary interest in it. It is not a 

 public thing belonging to nobody or to the great 

 public as represented by government. But a thing 

 owned by people, and every person of the country is 

 part owner. This is an important distinction, as it 

 has affected irrigation. 



Thus owned, it is the ward of government in 

 the common interest. Government looks after it 

 not as its own property, not as public property, but 

 as the people's property. For the benefit of all, it is 

 protected from individual, private or corporate 

 appropriation. Rights to its use are not acquired by 

 the mere taking. They must be based on an admin- 

 istrative permit, and are subject to administrative 

 regulation. They become fixed by prescription only; 

 and this means use from time immemorial. No water 

 right of modern origin in a Civil law country is fixed 

 to a degree that exempts it from administrative 

 regulation. Such regulation does not mean curtail- 



*A11 rights reserved by the author. 



ment or forfeiture, except as to waste and except in 

 case of misapplication. It simply forces the claimant 

 to comply with the terms of this concession, and to 

 have regard for the rights of others, without forcing 

 others to appeal to courts. 



Appropriation of waters, as the term fits the prac- 

 tice in America, is not and never was a Civil law in- 

 stitution. The waters of streams in France, Italy 

 and Spain the Civil law irrigation coun tries par ex- 

 cellance are not, and since feudal times have not 

 been subject to appropriation. No right could be 

 acquired to them by the mere assertion of claim and 

 the action of taking and using, based on that asser- 

 tion. In the eyes of the Civil law, the taking by an 

 individual, without specific leave, a part of the com- 

 mon property of all the people, and appropriating 

 it to his own use, is regarded as an act contrary to 

 law as stealing. It is stopped, just as other thefts 

 would be, and, if persisted in, the thief is punished. 



Riparian proprietors may temporarily take and 

 utilize the waters flowing through or by their lands, 

 but they can get no right to such use, except by pre- 

 scription use from time immemorial. Their taking 

 may be summarily stopped by the administration, 

 without resort to courts. They have no advantage 

 ovei other land owners or other people in the acquire- 

 ment of water rights. To secure the privilege of 

 using an apportioned part of the common stock of 

 water, all people are on a like footing, and all have 

 to follow the same process of application to the ad- 

 ministrative authorities. These rules apply to all 

 streams except those insignificantly small, which 

 rise on and remain within private lands. On these 

 latter, riparian proprietors have more extended 

 rights. But the volumes of water are so small in such 

 cases as to render them of no public importance. 



In guarding and regulating the use of the common 

 stock of water, it is the object of administration in 

 Civil law countries, simply to assure its useful, 

 economical and advantageous application, and to 

 prevent its private monopoly to the public detriment. 

 There is no tendency to administrative interference 

 with details of use, except to stop abuse. The issue 

 of water rights for irrigation is preferably made to 

 communities of land owners organized into districts, 

 or to companies, for service to such communities. 

 The concessions are made definite from the beginning. 

 The employment of capital in irrigation enterprise 

 the construction and operation of water storage and 

 water service works is encouraged, and its invest- 

 ment is protected. But concessions to capitalized 

 companies are always guarded by terms which pre- 

 vent oppression of water users, and lead to owner- 

 ship of the works and water rights by them, after a 

 period generally ranging from 20 to 50 years. 



A degree of stability and safety is thus assured to 

 irrigation enterprise and irrigation, from the begin- 

 ning in each case. The capitalized company has a 

 clean-cut proposition to work on. With a reasonably 

 good scheme its securities are at once recognized, 

 and are marketable. If it is a specially valuable 

 concession, from which large returns are estimated, it 

 may have had to pay government a bonus for it. 

 If a poor one, from the financial standpoint, it gener- 

 ally receives with it a subsidy, in order that it may 



