THE IRRIGATION AGE. 



WHY AND HOW STATE AND FEDERAL GOVERN- 

 MENT SHOULD CO-OPERATE FOR IRRIGATION. 



F. H. RAY, HELENA, MONT.* 



Reclamation of the arid West will be hastened by 

 intelligent co-operation of State and Federal Govern- 

 ments. State and nation have separate interests a? well 

 as a common interest in such reclamation ; each have 

 work to do in connection therewith that the other can 

 not perform; there need be no conflict of authority or 

 complications between them, and wise state laws will 

 remove many existing obstacles. 



The national irrigation law was a long advance step, 

 for which much credit is due President Roosevelt, the 

 National Irrigation Association, Elwoocl Mead, and 

 many others. The idea held by. some, however, that 

 the entire work of reclamation should henceforth be left 

 to, or will be accomplished by the Federal Government, 

 is wrong. Government funds are not available for the 

 stupendous task; and reclamation, as in the past, will 

 continue to be accomplished most largely by private 

 enterprise. 



The national irrigation law wisely recognized the 

 domain and function of the State by expressly provid- 

 ing in Section 8, "that nothing in this Act shall be 

 construed as affecting or intended to affect or to in 

 any way interfere with the laws of any state or terri- 

 tory relating to the control, appropriation, use or dis- 

 tribution of water used in irrigation, or any vested right 

 acquired thereunder, and the Secretary of the Interior, 

 in carrying out the provisions of this Act, shall pro- 

 ceed in conformity with such laws." 



President Roosevelt in his first message to Con- 

 gress grasped the situation and indicated what the 

 states should do. He said : "The security and value 

 of the homes created depend largely on the stability of 

 titles to water; but the majority of these rest on the 

 uncertain foundation of court decisions rendered in or- 

 dinary suits at law. With a few creditable exceptions 

 the arid states have failed to provide for the certain 

 and just divison of streams in time of scarcity. Lax 

 and uncertain laws have made it possible to establish 

 rights to water in excess of actual use or necessities. 

 In the arid state the only right to water which should 

 be recognized is that of use. In irrigation this right 

 should attach to the land reclaimed and be inseparable 

 therefrom. Granting perpetual water rights to other 

 than users, without compensation to the public, is open 

 to all the objections which apply to giving away per- 

 petual franchises to the public utilities of cities." 



Secretary Wilson, in his 1901 report, said : "What- 

 ever aid Congress extends should be conditioned on the 

 enactment of proper irrigation codes by the states and 

 made to promote the -greater efficiency and success of 

 such laws rather than interfere with their operation." 

 He thus clearly recognized the right relation between 

 nation and state. 



VITAL IMPORTANCE OF WATER TITLES. 



With land abundant and water scarce possession 

 of water is the keystone in our western agricultural 

 arch, or as stated by President Harrison, "Whoever 

 controls a river practically owns the land it waters, 

 no matter who has title to land." Under such condi- 

 tions the title to water is of vital importance and just 

 laws governing its ownership and use are the neces- 

 sary foundation for agricultural development. 



Unfortunately this phase of the subject was, ex- 



* Paper read before Eleventh National Irrigation Congress 



cepting in Wyoming, Nebraska, and Colorado, neglected 

 until 1898. Attention was then called to it in Agri- 

 cultural Department Bulletin No. 58, by Elwood Mead, 

 Chief of Irrigation Investigation. Since then that office 

 has in other bulletins, notably Nos. 86, 96, 100 and 

 104, diffused much valuable information gathered by 

 competent investigators in several states and demon- 

 strating the urgent need for state legislation. Efforts 

 for such legislation was successfully made in Utah and 

 Idaho last winter, but failed in California and Montana. 



Let us consider, very briefly, existing conditions 

 as to water titles. Titles to water should be as defi- 

 nite, as easily ascertained, as secure and free from liti- 

 gation as land titles; this much is due the settler, the 

 distant investor, and is requisite for the general wel- 

 fare. Instead of this desirable condition there prevails 

 in most of the arid states indefinite, insecure titles, 

 excessive decrees, streams over-appropriated, many local- 

 ities where it is easier to build the ditch than ascer- 

 tain its right to water, where irrigation and litigation 

 are synonymous. 



A recent careful investigation in one state, which 

 has more water and less irrigated land than several 

 sister states, disclosed 26,146 recorded claims for water, 

 less than 10 per cent of which had been adjudicated. 

 During the current year there had been water litiga- 

 tion in twenty out of twenty-six counties, water suits 

 were pending in seventeen counties and water litiga- 

 tion had been increasing in most counties. Cases with 

 400 defendants were reported. One county reported a 

 large part of its criminal cases and two-thirds of its 

 civil cases were water controversies. In one small val- 

 ley about a quarter of the water right had been ad- 

 judicated at a cost of $25,000. In that same valley 

 of fifty ditches taking water to hundreds of farms, not 

 one right had been determined, nor did a farm on those 

 fifty ditches have a clear title to its water supply. At 

 present court decisions are seldom final and the law 

 does not afford adequate means of protecting a right 

 after adjudication, except through another lawsuit. I 

 can cite streams in different states where titles have 

 been quieted three and four times in ten years, and 

 other suits to again settle have just been instituted. 

 It is a question whether the water rights or litigants 

 will first be put to rest. 



Estimate, if you can, the obstacles which such con- 

 ditions are to irrigation growth and the burden im- 

 posed upon tax payers by the ever increasing litiga- 

 tion. Think of the opportunity afforded for acquir- 

 ing excessive decrees, establishing water monopoly, de- 

 priving prior settlers of rights and oppressing future 

 tillers of the soil. Consider the effect on the inquir- 

 ing investor. Too often he quits a contemplated enter- 

 prise in disgust. Foregoing are a part only of the 

 evils, ever growing, due directly to lack of proper super- 

 vision and control. Is not the urgent need of a remedy 

 apparent? Does not agricultural development require 

 an early and just adjudication of conflicting claims 

 and thereafter adequate siipervision and control of 

 water? Should not this Congress heed the need and 

 devote a part of its deliberations to this subject? 



As a basis for such discussion let me mention, very 

 briefly, remedies tried and proposed. Supervision and 

 control may be by community, by state or by nation. 

 Utah tried community or district control as early as 

 1865, has found it unsatisfactory and adopted state con- 

 trol. In California the Wright district law has not 



