THE IRRIGA TIOX A GE. 15 



ney will want are unknown until they make their demand. I mean 

 legally unknown because the company would have no right to recog- 

 nize them as it now does. 



I have dwelt so much on this because it scares capital, scares it 

 now and is going to scare it more. It is of little use to say that c api- 

 tal should not be scared. Capital will indulge its privilege all the 

 same and be scared in spite of us. Hence this question should be set 

 right as fast as possible by law or constitutional amendment and peo- 

 ple allowed to make such contracts as they choose. As a matter of 

 fact there is very little reason for getting scared. I believe the de- 

 cision of Judge Ross in the case referred to will be sustained on ap- 

 peal. It is based on the peculiar wording of the constitution of Cali- 

 fornia and is backed by numerous cases in which the principle is clear. 

 The case was one of a naked contract to furnish appropriated water 

 at a certain price each year. Had the contract been by deed of a defi- 

 nite quantity reserving a contribution for maintenance or interest on 

 deferred payment it would probably have been quite different. Es- 

 pecially so if the payment had been made a lien on the land. Deeds 

 of appropriated water, either of the whole appropriation or of a part, 

 have never been questioned that I know of. They have been made 

 for years in every state where irrigation is practiced and sustained as- 

 deeds of real estate everywhere. A deed assented to by acceptance 

 and charging the annual payment on the land as a lien was sustained 

 by the Supreme Court of California some eight years ago under a sec- 

 tion of the code which allows liens on land to be created by the owner 

 of the land. A deed of water as of real estate, reserving a render's 

 lien for part payment would probably be good anywhere. I drew up a 

 deed some years ago to "cover all points, which has been pronounced 

 impregnable by several of the best lawyers in the state, and no buyer 

 of water has ever yet objected to its terms though many have taken it. 



The decision referred to has no application to land owner's com- 

 panies. It has been decided that they are not subject to the legal 

 rates and are not bound to furnish water to outsiders. They are 

 exactly like a social club furnishing themselves. A hundred or a 

 thousand men have the same right to own and distribute water jointly 

 and fix the contribution of each toward the expense of operation and 

 maintenance of the ditch that a single man has to take out and own 

 the small brook that irrigates his single ranch. It matters not wheth- 

 er his title is by appropriation or as riparian owner. Appropriation 

 for such purpose has never been questioned any more than it has for 

 mining or power. A body of land owners do not appropriate for sale 

 but for their own use. But this does not prevent a man from maki ng 

 a private deed of the water if he does not want it himself and the 

 chances are that he can attach what strings to it he chooses, the same 

 as if it were land, deeds for water being the same in all other respects 

 as deeds of land. In the same way they can sell some of the stock 



