THE IRRIGATION AGE. 



231 



law must be carried out or enforced in a special and 

 not in a general manner. That is, the laws of the 

 State of New York and the other States of the Union 

 omitted from the category of the national irrigation 

 law, and the laws regarding the dominion of the Fed- 

 eral Government in those omitted States, have no ope- 

 ration or vitality in Wyoming and the other States 

 specifically enumerated in that national irrigation law. 



So far as the Territories are concerned, the Fed- 

 eral Government has full, unmolested sway in the 

 carrying out of the national irrigation law, and what- 

 ever system it adopts that system must become a part 

 of the organic law of the State erected out; of the Terri- 

 tory. The reason is because those who accept that sys- 

 tem and come in under its operation have acquired con- 

 tract rights which must be respected. They can not 

 be deprived of them without their consent. 



But when we come to the States in which the 

 double empire, so to speak, exists, the matter assumes a 

 different complexion for the following reasons: 



First In the enforcement of the national irriga- 

 tion law the Federal Government must either adopt a 

 uniform system of irrigation or one that is diverse and 

 in conformity with the laws of the States in which its 

 objects are carried out. 



Second The irrigation or water laws of the dif- 

 ferent States over which the national irrigation law 

 extends are not uniform, the ownership or right to 

 the water for irrigation being diverse, even the meas- 

 urement of the water being governed by different rules. 



Third The individual who takes up "Govern- 

 ment land" with the water privileges accorded by the 

 national irrigation law is bound to conform to the gov- 

 ernment of the federal authorities until he has acquired 

 an absolute title to the land, and then he becomes sub- 

 ject to the State sovereignty, the federal authorities 

 having no further dominion over him or his land or 

 to control the water. 



The rule of decision in the United States courts is 

 that} all federal laws shall be of uniform, general appli- 

 cation or operation, however special they may be in 

 their intent. Now, if the federal authorities adopt a 

 uniform system of irrigation throughout the entire irri- 

 gation area, that system will conflict with the diverse 

 State laws, and when the land which is now under the 

 dominion of the Federal Government shall fall within 

 the exclusive jurisdiction of the sovereign States, if 

 the law of contracts can not be so twisted as to uphold 

 him, there will be presented the curious problem of 

 the citizen of the State violating the laws of that State, 

 an individual setting its sovereignty at naught. This 

 is an unthinkable condition, and the law of contracts 

 will be apt to go by the board on the ground of public 

 policy, and the man who relied upon the federal power 

 to maintain his rights will find that power a broken 

 reed from the very nature of our system of government. 



The same result must ensue if the federal 

 authorities adapt their system 'of irrigation to the di- 

 verse laws of the States in which national irrigation 

 now operates. Some uniform system of irrigation must 

 be adopted, and in that case, or in the case of any 

 change in the law, the holder of former Government 

 land will be compelled to change his system to con- 

 form to the changes in the State laws. The predica- 

 ment is the same in both cases. 



Under the second reason above given, it suffices to 

 say that the diversity of the irrigation laws in the vari- 

 ous States is self-evident. In some instances there is so 

 great a lack of uniformity that, suppose a ditch to cross 

 from one State to another, the right to use the water 

 in the ditch in one State may be taken away, or so 

 materially modified in the other as to be valueless. 

 This is more important than appears on the surface, 

 for it concerns streams traversing two or more States 

 or originating in one State and flowing into another. 

 Subterranean and all underground waters are impli- 

 cated in this question. Who knows where the infiltra- 

 tions of great streams or the seepage water ends or 

 flows? Shall the State in which the water has its 

 source own all its percolations, even into another State ? 

 A miner owns his ore ledge from the surface, or its 

 outcrop, along all its dips, spurs and angles, regard- 

 less of the territory through which it passes, but to 

 apply this principle to water is to immediately destroy 

 the efficacy of irrigation, and to set back the reclama- 

 tion of the arid and semi-arid empire to its desert con- 

 dition, with only a few oases here and there belonging 

 to the fortunate owners of the source of the water. 



They stand substantially in the same position as 

 interstate commerce, with this vital difference, that the 

 individual water user is not a quasi-public corporation 

 subject to regulation by the Federal Government, that 

 power having lost its right to interfere the moment it 

 confers absolute ownership in the land and water upon 

 the individual, the private citizen who becomes, he 

 and his land, subject to the purview of the laws of the 

 sovereign State. 



This last point covers what may be said under the 

 third reason given above. If the individual meets with 

 a conflict his only recourse is to court, but the federal 

 courts will rule according to the rights of the Federal 

 Government unless broadly contrary to its constitu- 

 tion, and the State courts are bound by their State 

 constitution as their rule of decision. Hence, the irri- 

 gator as the party between the upper and nether mill- 

 stone, is ground into powder. 



What is the remedy to avoid the irritating ques- 

 tions liable to arise, to obviate a train of evils sure 

 to grow out of the attempt to reconcile the differences 

 which exist, and which must be eliminated or cured in 

 the interests of the public welfare ? 



It is beyond the utmost power of any one man, 

 'or body of men organized or associated for private pur- 



