THE IRRIGATION AGE. 



105 



water remained in lakes and ponds as it was before. 

 They are doing something that may be made of 

 benefit to others than themselves. 



Should those who may be benefited pay some 

 part of the cost? 



It would seem that they should, if no one is 

 being injured that is, if in disposing of the seep- 

 age water no one is being deprived of anything he 

 has, if each has all he had before. Clearly one is 

 not agrieved if a thing that is not his is withheld 

 from him. 



The water which caused the seeped condition 

 was originally the water of a running stream and 

 the property of the state. If let alone it would have 

 run down in its natural course. However, it was 

 diverted by an appropriation with the consent of 

 the state board and under its direction. The state 

 at this point relinquished its control to the appro- 

 priator, and as soon as it is applied to the land it 

 becomes so much a part of the land that it cannot 

 be identified nor separated from the land except 

 through seepage or evaporation. It has become a 

 part of the land and the property of the land owner 

 to all intents and purposes. At least the state would 

 hardly claim control to the extent of being respon- 

 sible for any damage it might do after it has been 

 diverted. 



If it is the property, or if under the control of 

 the land owner at this time, when does the owner- 

 ship or control revert to the state? From the read- 

 ing of the law, it would seem to be when it reaches 

 a running stream, and not before. If in the use of 

 it the irrigator, by reason of the lay of his land, is 

 unable to apply it without causing some of the land 

 which is naturally low to become seeped, or if his 

 neighbor uses more water than his land will absorb 

 and the surplus causes seepage and the seep water 

 is still on his land and in a stagnant condition and 

 has not joined a running stream, then it must still 

 be his and under his control. If this is true of a 

 single individual, then it is true of a number of 

 individuals. They will have the same rights if 

 organized into a district. 



If a drainage ditch is constructed to rid the 

 land in the district of the surplus water, which is of 

 no value to them, but which, if collected by means 

 of the ditch which has been constructed, is of value 

 to another who may have land needing the water, 

 then it would seem that they have the right to dis- 

 pose of it in such a way as to at least partly com- 

 pensate themselves for the expense of drainage, and 

 this would undoubtedly be true if in so doing they 

 were not depriving any one of what he might justly 

 claim as his. It will now be necessary to inquire 

 as to whether or not others would have a claim on 

 the water thus disposed of. 



It is admitted that the water which caused the 

 seeped condition was taken from the stream legally ; 

 that it was done under an appropriation approved 

 by the authorities of the state. So far as the flow 

 of the stream is concerned, it is lost after it has 

 been diverted, except that part that will in time re- 

 turn through what we may term the return flow 

 water that percolates through the ground and 

 comes out in the stream at some point lower down. 

 It does not do this until it has served the purpose 

 of irrigating the land to which it is applied. 



If because of the peculiar lay of the land, or 

 because of the formation of the subsoil, it comes to 

 the surface and forms ponds or pools, without 

 reaching some waterway through which it may find 

 its way back to the stream, then it is of no value 

 in the way of increasing the flow of the stream. 

 The stream is in the same condition it would have 

 been in had the water not made its appearance on 

 the surface in the form of seepage. When it was 

 first withdrawn, the flow of the stream was re- 

 duced to the extent of the amount taken out, and 

 junior appropriators were advised of the amount 

 taken and their appropriations were granted on the 

 basis of the amount remaining, so that they cannot 

 expect it to be returned, except through the return 

 flow in the manner already stated. 



If it is left in the pools or ponds their appro- 

 priation is not less valuable than it was when it was 

 made it is as good but no better. The same amount 

 of water is available that was available at the time 

 of making the appropriation. Apparently there is 

 no harm done if it is allowed to remain on the land 

 where it accumulates, to the down stream or junior 

 appropriator. He is not deprived of any water that 

 he was not deprived of when it was first taken 

 from the stream, and he had no claim on it when it 

 was taken. Obviously, it will not gather itself 

 together and find a way back to the stream. An 

 artificial channel must be made or it will remain 

 as seep water. So the land owner who is unfortu- 

 nate enough to have such a condition has not only 

 been damaged by having his land ruined by it, but 

 must put himself to expense either to reclaim his 

 land or to protect it against further damage by the 

 seeped area being increased. 



If the down stream or junior appropriator is 

 not damaged by its remaining on the land, then he 

 is not damaged by its being removed and applied 

 to other land in need of it. It would seem that it 

 might be used at the nearest point where there is a 

 need for it, without infringing on anyone's rights. 



If so, those to be benefited by its use should 

 join with those to be benefited by being relieved in 

 the collection of it and they should have joint con- 

 trol. 



Our present state law provides that Irrigation 

 Districts may collect seep water, or they may join 

 with drainage districts in the collection of it and 

 use it as supplemental to their appropriations so 

 long as the total used does not exceed their appro- 

 priation. This law does not make less valuable any 

 existing rights, nor add to the value of any with- 

 out a corresponding cost to the beneficiary. 



In conclusion, it seems to me that the owner- 

 ship and control of seepage water is now, and 

 should be, in the land owner on whose land it is. 

 The only question is, when does he lose the owner- 

 ship and control, and that would appear to be only 

 when it has been returned to a running stream. It 

 might be a wise plan to more definitely define, by 

 statute, the meaning of a running stream. This 

 would make it no longer a matter of controversy as 

 to when the ownership ceases. If this theory is 

 not correct, then the owner, whoever he may be, 

 should be made to take care of his property. No 

 one should be expected to take care of the property 

 of another without compensation. 



