IRRIGATION LEGISLATION. 



RIGHT OF WAY FOR CANALS AND RESERVOIRS OVER 

 GOVERNMENT LANDS. 



BY L. H. TAYLOR, OF NEVADA. 



SECTIONS 18, 19, 20 and 21 of the 

 act of Congress approved March 3, 

 1891, entitled " An Act to repeal timber- 

 culture laws, and for other purposes," 

 grant the right of way through the public 

 lands and reservations of the United States 

 for the use of canals, ditches and reser- 

 voirs heretofore or hereafter constructed, 

 upon the filing and approval of the certifi- 

 cates and maps therein provided for, but 

 the applicant for such right of way ac- 

 quires no rights until said maps, etc., are 

 approved by the Secretary of the Interior, 

 and such right attaches from the date of 

 approval. In this the law is defective, 

 for in the interim between the filing of 

 the application and its approval the land 

 is subject to entry, and being entered by 

 anyone unfriendly to the project the appli- 

 cant has no recourse but to buy out the 

 entry man, or to condemn the right of way 

 under the law of eminent domain, and if 

 the applicant be a private individual and 

 not a corporation he has not this latter re- 

 source. So the act above referred to 

 should be amended so as to provide that 

 after approval of any application there- 

 under, the right of way granted shall refer 

 back to and attach from the date of filing 

 said application or better yet, from the 

 date of beginning of the necessary surveys, 

 the same as a homestead filing refers back 

 to the date of settlement. 



Another amendment which appears 

 necessary to this act is one providing for 

 its extension to unsurveyed as well as sur- 

 veyed lands. It may be argued that on 

 unsurveyed lands there is no means of 

 properly describing the right of way, but 

 this can be done in the same manner as in 

 the case of mineral entries. 



It may often happen that all or a part 

 of a reservoir site or canal location is upon 

 unsurveyed land, and this may be occupied 

 by a settler at any time before such canal 

 is constructed or the reservoir filled with 

 water, and thus a great hardship worked 

 upon those engaged in such construction, 

 or the enterprise be stopped altogether. 



Unhappily, there are only too many men on 

 the lookout for just such opportunities to 

 blackmail legitimate enterprises, and it 

 should be the function of the law to afford 

 protection against such. So it is to be 

 hoped that this matter may be brought to 

 the attention of, and acted upon by Con- 

 gress at its present session. 



The Court of Appeals of Colorado holds 

 that an appropriator of water of a river 

 cannot enjoin another subsequent appro- 

 priator of the water of a tributary below 

 the point of the first party's location, from 

 using the water of the tributary on the 

 ground that such use reduced the quantity 

 of water in the river so that lower appro- 

 priators, whose appropriations were prior 

 to that of the complainant, did not receive 

 the amount of water they were entitled to 

 unless the first party supplied the defi- 

 ciency from his share of the water, where 

 the prior appropriators are not made 

 parties to the action. 



Larimer & Weld Reservoir Co. v. Water 

 Supply & Storage Co., 42 Pacific Reporter, 

 1020. 



CONSTRUCTION OF CONTRACT WITH WATER 

 COMPANY. 



A contract between certain parties and 

 a water company gave the former the op- 

 tion to buy from the latter land described 

 in the contract, at a certain date, " in ac- 

 cordance with the rules" of the company, 

 at a price stated. The Supreme Court of 

 California held that such parties were not 

 entitled to any water rights, in the event 

 of their election to bay, in the absence of 

 any rules by such company entitling them 

 to such rights. The fact that such com- 

 pany had adopted a system of allowing 

 certain leases to be made with the privilege 

 of purchasing, " the purchase price of the 

 land to be in full payment of, and to enti- 

 tle the purchaser to, a permanent water 

 right to the use of the water from the 

 company's canal, corresponding to the 

 number of acres bought by him," etc., did 



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