502 



THE IRRIGATION AGE. 



serted in the constitution and laws of Wyoming some 

 provisions which have revolutionized the methods of ad- 

 ministering streams. Regardless of his able efforts and his 

 activity for many years, some of the principles that he 

 deemed most important were overturned by the courts in 

 a measure, and it has only been by a continuous campaign 

 that these have finally been so clearly denned by statute 

 that all who can read may understand. 



One of the most important principles that must sooner 

 or later be accepted generally, is that water is always pub- 

 lic property and that its use only can be controlled by 

 private parties, and that this use (commonly called a 

 water right), belongs to the use and not to the person 

 making the use. If the water is used tor irrigation pur- 

 poses it belongs to the land. If it is used for power pur- 

 poses it belongs to the particular power development, and 

 so on. Another important detail is that no right guaran- 

 tees a specific volume that can be used without regard to 

 the necessities of the community. The right embraces 

 a maximum use which cannot be exceeded, but the actual 

 use is limited to the volume that can be beneficially ap- 

 plied. 



The administrative officers of Wyoming always held 

 that water rights belong to the land for irrigation pur- 

 poses and that such rights are inseparable therefrom. The 

 plain provisions of the original law would seem to make 

 this interpretation reasonable. However, because other 

 States had contrary decisions the Wyoming courts fol- 

 lowed them, and in 1904 the Supreme Court of that State 

 declared that water rights are not inseparable from the 

 land under the laws of the State. Some legislation of 

 questionable value was immediately enacted by the legis- 

 lature which followed, in an attempt to correct the law. 

 This was in force for four years when the legislature of 

 1909 enacted the following act, it being largely a definition 

 of a water right: 



Sec. 724 R. S., 1910. A water right is a right to 

 use the water of the State, when such use has been 

 acquired by the beneficial application of water under 

 the laws of the State relating thereto, and in conform- 

 ity with the rules and regulations dependent thereon. 

 Beneficial use shall be the basis, the measure and the 

 limit of the right to use water at all times, not ex- 

 ceeding, in any case, the statutory limit of volume. 

 Water being at all times the property of the State, 

 rights to its use shall attach to the lands for irriga- 

 tion, or to such purpose or object for which acquired 

 in accordance with the beneficial use made and for 

 which the right receives public recognition, under the 

 law and the administration provided thereby. Water 

 rights cannot be detached from the lands, place or 

 purpose for which they are acquired, without loss of 

 priority. 



Sec. 725. Water rights are hereby defined as fol- 

 lows according to use: Preferred uses shall include 

 rights for domestic and transportation purposes; ex- 

 isting rights not preferred, may be condemned to 

 supply water for such preferred uses in accordance 

 with the provisions of the law relating to the con- 

 demnation of uroperty for public and semi-public 

 purposes. Such domestic and transportation pur- 

 poses shall include the following: First, Water for 

 drinking purposes for both man and beast. Second, 

 Water for municipal purposes. Third, Water for the 

 use of steam engines and for general railway use. 

 Fourth, Water for culinary, laundry, bathing, refrig- 



erating (including the manufacture of ice), and for 

 steam and hot water heating plants. The use of water 

 for irrigation shall be superior and preferred to any 

 use where turbine or impulse water wheels are in- 

 stalled for power purposes. 



The practice of the state administration has been 

 uniform with the above law since the original statutes 

 were enacted in 1891, regardless of court interpretation. 

 This is the case, because until the case was handed down 

 by the court, the law was construed to embrace the pi in- 

 cipies now more specifically defined, and immediately 

 after the decision was made by the court, the legislature 

 enacted a law which gave some temporary relief. 



We have been led to study these matters because our 

 attention has been called recently to a court decision that 

 discusses fundamental principles in such a broad and com- 

 prehensive way, that we believed a detailed investigation 

 as to the birth and rise of modern irrigation law and ad- 

 ministration would be of value. The case we refer to re- 

 lates to the adjudication of water rights of Salt River in 

 Arizona. The action was brought by one water user 

 against nearly five thousand others, and the United States 

 intervened owin;j to the fact that the Reclamation Service 

 is building a great irrigation system to divert water from 

 the stream. We regret that we cannot publish this de- 

 cision in full. We will quote Judge Kent's discussion of 

 principles, whicli show thorough study and which we are 

 satisfied is the best presentation of these important doc- 

 trines that has thin far been made by any court. 



"The doctrine of riparian rights does not obtain in 

 Arizona. The right of the owner of land to divert 

 from a non-navigable stream the flow of the water 

 therein and to apply the same to beneficial use upon 

 such land, is rind always has been recognized in this 

 Territory. Such diversion and use is termed an ap- 

 propriation of water. Whatever may be the steps 

 necessary to take to initiate such a right or to evidence 

 the intent to initiate it, the appropriation itself only 

 becomes complete and vested when the water is ac- 

 tually diverted from the stream and placed to a bene- 

 ficial use upon the land. The right given by such an 

 appropriation is strictly not a right to the water itself, 

 but a right to the use of the water. Its application 

 to a beneficial use upon the land is as necessary in 

 order to complete the right as is the diversion thereof 

 from the stream. An appropriation of water, there- 

 fore, for the purpose of the irrigation of a parcel of 

 land may not be established and completed by means 

 merely of a declaration of intention or by the posting 

 of notices of ippropriation, nor may it be made by a 

 canal owner or by a canal company as such alone, 

 independent of its ownership of the land; but as ap- 

 plication to a beneficial use upon the land is necessary 

 to complete th^ appropriation, it follows that such ap- 

 propriator must be an owner of land or have a pos- 

 sessory right thereto. 



"Furthermore, since the land to which the water is 

 to be applied is a necessary integral part of the appro- 

 priation and a factor by which the amount of water 

 appropriated for use is measured, it follows that when 

 the water is no longer applied to the land for which 

 it was diverted, the right of appropriation of such 

 water for such iard ceases. The right of appropriation 

 further depends rpon a supply of water that is un- 

 appropriated. It follows, therefore, that the first in 

 time of appropiiation is the first in right to appropri- 



