82 IREIGATION INVESTIGATIONS IN CALIFOBNIA. 



his own eyes that certain lands have been claimed and improved in accordance with 

 the law. while nothing short of a scientific study can demonstrate whether or not there 

 is a surplus of water in the stream available for new appropriations. On this subject 

 there is always a difference of opinion. The old resident is sure there is no surplus 

 water, while the newcomer is equally certain that the present supply is being wasted 

 and that he has a perfect right to claim his share and proceed to create his home. 

 There can be no decision rendered between these conflicting opinions and interests 

 until the matter has been brought to the test of actual experience. This is when the 

 new ditch has been built, at great or little cost, as the case may be. When we come 

 to consider the matter of lawsuits resulting from these conditions we shall see how 

 even this costly test often results in decisions which do not decide, but merely involve 

 all the interested parties in financial loss and vexation of spirit. The fact that this 

 law provides no method by which the intending appropriator nmy know whether 

 there is surplus water which he can legalh* claim, and, if so, the amount of it, is the 

 first great evil we encounter in considering irrigation development, but is by no 

 means the only failure in the law of appropriation. 



The law says that the appropriator "must post a notice, in writing, in a con- 

 spicuous place at the point of intended diversion." Now, it may happen, frequently 

 does happen, that "the conspicuous place" at which it is desired to divert the water 

 is in some willow thicket at the lonely bend of the stream, where there are only jack 

 raljbits and coj^otes to see the notice so posted. Streams are not diverted in the 

 main streets of populous villages, nor even on the main traveled roads of the 

 country. The water is generally desired to be taken out at a point somewhat remote 

 from the cultivated districts where men have their habitations. It must be taken at 

 a sufficient elevation to enable the water to flow upon lands which, at the point to be 

 cultivated, lie considerably above the stream. This stealthy method of appropriation 

 is, then, open to the very serious objection that a projected enterprise which maj^ be 

 of great importance to the community can be initiated with all the privacy that a 

 bank robber might desire for his operations. The further provision for placing 

 the notices of appropriations in a book kept by the county recorder helps the matter 

 very little. Such records are of course open to public scrutiny, but they are seldom 

 scrutinized. The recorder himself has no function in the matter except to write the 

 notices in his book. He has no means of knowing whether the new claim is justifiable 

 and no authority to divulge the information if he possessed it. Neither he nor any 

 other official representing the people has any means of knowing whether the pi-o- 

 jected work will be carried out, nor whether, in case it be carried out, it will be done 

 in a way which accords with good public policy. Neither is there any method 

 provided for ascertaining if projected works have actually been constructed. In 

 a general way the public learns, after a time, that a man has. built his ditch or has 

 given it up, but their only means of knowing this is by their own observation or by 

 hearsay. 



The law says the appropriator must state the means by which he purposes to 

 divert the water and the size of the proposed works. He must also apply it to a 

 useful or beneficial purpose. The law goes no further. It provides no method by 

 which the public may ascertain that he has taken only the amount of water to which 

 he laid claim, or that he has applied it beneficially. All this is left to litigation. 



