STATE COIfTROL OF STREAMS. 63 



made by a judge who, through painful experience, had become impressed 

 with the danger of leaving these mattei's to be settled by accidental litigation, 

 which always includes the judges among its chief victims. 



Under a rational irrigation code titles to water are established like titles 

 to j)ublic land, by proceedings which are wholly ministerial. This is the 

 case under the Northwest irrigation act of Canada, and under the Wyoming 

 inigation law, where the supreme court recently held that even in determin- 

 ing territoi'ial rights the State board of control acts as an administrative 

 and not as a judicial body. (Farm Investment Co. v. Carpenter, 61 Pac. 

 Rep., 258.) 



If the amount of an appropriation depends upon the volume of water 

 beneficially used, the first step in the determination of a water right 

 should be a physical investigation. The water supply should be measured, 

 the capacity of the ditch which diverts it should be determined, and the 

 area and location of the land on which the water has been used defined. 

 With these facts before it, the tribunal which fixes the amount of a water 

 right has only a problem in mathematics. The judicial element is no more 

 present than it is in fixing the taxable value of a horse or cow, in passing 

 upon an assessment schedule, or determining whether or not a homesteader 

 has complied with the laud law. Determining the amount of water used is 

 no more a judicial act than the fixing of a tax rate by a board of supervisors, 

 the leasing value of land by a board of land commissioners, or hundreds 

 of other acts of official and everyday life which require the exercise of 

 ordinary judgment and discretion. One of the most mistaken and injurious 

 beliefs is that rights to water can be settled onh' through a lawsuit. 

 Nevertheless, the opinion seems to prevail widely, not alone in California 

 but tlu'oughout the arid region, that water is a kind of property which must 

 be disposed of exclusively by the courts. 



THE NATTJB.E OF RIGHTS TO WATER. 



The water problem of California involves one of the serious social and 

 economic questions of our time. Every arid State will watch the action 

 taken and be influenced by it. The irrigated countries of the Old World 

 will measure our ability to deal honestly and wisely witli arid-land problems 

 by the way this one is settled. The action to be taken, and some action 

 should be taken, ought not to be shaped by laws bon-owed from a country 

 of rains and fogs or made to perpetuate the mistakes of the earlier law- 

 makers. It ought to represent the enlightenment of the twentieth century 

 and the spirit of a republic instead of a nn)uarchy. If it does it must have 

 as a fundamental idea the giving of equal rights to all in our common 



