THE IRRIGATION AGE. 



175 



water has the better right; that the extent of the appro- 

 priation is measured by the actual beneficial use of 

 water, and that when the use ceases the right ceases. 

 There is in some states a modified riparian doctrine, 

 but it is a wide departure from the old common law and 

 only differs from the doctrine of appropriations in 

 making riparian land owners preferred appropriators. 

 These principles are a satisfactory basis for an irriga- 

 tion code, but a working principle is not enough. To 

 divide a river among thousands of users requires more 

 than a principle, just as the enforcement of laws re- 

 quires courts and sheriffs. We have in this to deal 

 with human nature, and solve the question of an irriga- 

 tor who said: "What shall we do? There are eight 

 owners of our ditch, seven of them are men and one 

 of them is a hog." 



We have to have state engineers and water com- 

 missioners to manage the hog. In doing this we began 

 with makeshift devices. There were objections to laws 

 which created new offices and we tried to get along with 

 offices already created. Eights were recorded with the 

 county clerk and the amount of appropriations settled 

 by lawsuits. The seeming economy of this was not real. 



are concerned, corrected this mistake by uniting all 

 the separated water districts into divisions, each of which 

 takes in an entire watershed. We have now before us 

 the question of how to adjust the rights across state 

 lines and protect the earlier rights in the state below 

 from the encroachment of the state above. 



This principle of court adjudications of rights has 

 been adopted by the majority of the arid states, but it 

 has been greatly improved by coupling with the judicial 

 act an important administrative act which is the pre- 

 liminary measurement of the land irrigated by the state 

 engineer. In time the practica of establishing water 

 titles by lawsuits will be abandoned throughout the arid 

 region. The beginning of this was made in the adop- 

 tion of the Wyoming law which incorporates two new 

 features in the irrigation codes of this country. The 

 first of these was the establishment of the existing titles 

 by an administrative board rather than by court. I 

 think the importance of this administrative board has 

 been exaggerated in discussion, because this board deals 

 only with the settling of the older claims. It has little 

 to do in the establishment of future rights. In the es- 

 tablishment of existing rights its merit was not in sub- 



Uncompahgre Valley, Colo., Wheat. 



The mistakes, the extravagant rights and the uncer- 

 tainty as to water titles has cost a thousand times more 

 than the establishment of an adequate administrative 

 system at the outset. This country should have begun 

 as Canada did. In Canada water is considered a public 

 property and titles are established under a proceeding 

 analogous to that followed in this country in the estab- 

 lishment of titles to public land. Every water right 

 filing in Canada is recorded not only in the province 

 wheer the diversion is made, but also at the dominion 

 capitol, just as we record land filings in this country. 



Another mistake was in not making the administra- 

 tive unit all the drainage of the stream. Recording 

 claims in the different counties led to the establishment 

 of different sets of rights in each county ; the creation of 

 water districts which did not take in all the drainage of 

 the stream led to the cutting up of the stream in sec- 

 tions, and to conflicts between districts as to their re- 

 spective shares of the flow. We have, so far as states 



stituting an administrative board for the court, but in 

 making any title depend on the facts gathered by a meas- 

 urement of the ditch, a measurement of the land irri- 

 gated, a determination of the quantity of water which 

 could be appropriated and a determination of the quan- 

 tity of water which had been appropriated, rather than 

 by the interested testimony of the claimant. If this testi- 

 mony had been gathered and submitted to a court instead 

 of to an irrigation board, I have no doubt the results 

 would have been much the same. The important feature 

 of the Wyoming law, however, was not the settlement of 

 old rights, but the method of establishing future rights. 

 This was the requirement of every intending settler to 

 secure a permit, of watching by the state officials of 

 every step in the diversion of water and the granting 

 by the state of a title when the applicant had done all 

 the law requires. In this way every right is estab- 

 lished on its merits exactly as homestead and desert 

 titles are established to land, i. e., on the merits of each 



