370 



THE IRRIGATION AGE. 



RED TAPE BURNS UP $1,000,000 



(.Continued from Page :>(>">) 



crops and that it was not morally right for the Govern- 

 ment officials to use its power to squeeze the people 

 because of their necessity for water and make them 

 pay an exorbitant price and thus destroy millions of 

 dollars of crops each year while arriving at the so- 

 lution. 



The course of the Reclamation officials appears 

 more inequitable when the Government's legal rights 

 are considered and when it is clear from consideration 

 of elementary principles of law that the Government 

 is not entitled, as a matter of law, to sell this water. 



The Reclamation Act itself does not provide for 

 the sale of any water, but merely provides for reim- 

 bursement from the Government projects to the public 

 land funds. It is an elementary principle of law that 

 there is no private ownership in the public water ; that 

 the use of waters is an appurtenant to the riparian 

 owner, and the regulation and control of waters is ex- 

 clusively in the states and in the State Government, 

 and is not in the Federal Government; and that Fed- 

 eral regulation and control of the waters in the Inter- 

 State streams is prohibited by the Federal Constitution. 



The Reclamation Act itself recognized this prin- 

 ciple by Sec. 8 of the Act, which says : 



"That nothing in this act shall be construed as affecting 

 or intending to affect or to in any way interfere with the 

 laws of any state or territory relating to the control, appro- 

 priation, use or distribution of water used in irrigation or 

 any vested right acquired thereunder, and the Secretary of 

 the Interior, in carrying put the provisions of this act, shall 

 proceed in conformity with such laws, and nothing herein 

 shall in any way affect any right of any state, or of the 

 federal government, or of any landowner, appropriator or 

 user of water, in, to or from any interstate stream or the 



waters thereof; provided, that the right to the use of the 

 vvater acquired under the provisions of this act shall be appur- 

 tenant to the land irrigated and beneficial use shall be the 

 basis, the measure and the limit of the right." 



The United States Supreme Court in the case of 

 Kansas vs. Colorado, 206 U. S. 46; 51 Law Ed. 956, 

 denied the right of the Reclamation Service to control 

 the waters, except waters for irrigation of Government 

 lands and held that there was no power in the Federal 

 Constitution giving the Federal Government control of 

 the waters in the stream, and held that the control of 

 the waters of the stream was exclusively in the states. 



The Reclamation Act can only be held Constitu- 

 tional upon the theory that it gives the Federal Govern- 

 ment, under the power to control its public lands, the 

 rights of riparian owners to appropriate the waters of 

 the public stream and to construct irrigation works to 

 irrigate its own lands. The act itself provides that the 

 Reclamation Service shall be subject to the laws of 

 the states and that beneficial use shall be the basis, 

 measure and the limit of the right, and the water taken 

 under the act shall be appurtenant to the land contem- 

 plated in the Reclamation Act, which was the Gov- 

 ernment land only. Therefore if there is any surplus 

 waters held by the Government within the reservoir, 

 in the bed of the public stream which are not required 

 by the Government and not necessary for the irriga- 

 tion of the Government lands, such surplus is public 

 waters and belongs to the riparian owners along the 

 stream in Wyoming and Nebraska, in accordance with 

 the laws of the states of Nebraska and Wyoming. 

 Therefore the Government has no legal or moral right 

 to withhold these surplus waters in the Pathfinder Res- 

 ervoir above what are required by the Government for 



irrigating its own lands 



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