378 IRRIGATION INVESTIGATIONS IN' CALIFORNIA. 



If, for example, any corporation or individual wished to consider the matter of 

 constructing a dam and reservoir at any higher site on the stream above the present 

 Sweetwater Dam, they would be unable to know or ascertain by any records in exist- 

 ence anywhere how much water was already owned by other parties and how much 

 they would have to permit to pass by their proposed works to satisfy lower appro- 

 priate rs before they could begin to store water themselves; whether they would have 

 to measure out a certain number of "inches" claimed by certain recorded notices, or 

 permit the entire stream to pass by them until a certain body of water suiEcient to 

 fill the lower reservoir had gone down. These vague and uncertain conditions are 

 sufficient to cause any investor to pause and hesitate before entering upon any enter- 

 prise involving so many possibilities for litigation. 



SECONDARY WATEK. RIGHTS. 



There are four varieties of claims of water rights under the Sweetwater Dam 

 distributing system, subject to the adjudication of the courts upon their validity, 

 which I have designated "secondary water rights," as distinguished from those 

 drawing directly from the stream, or primary rights. These are defined by Mr. A. 

 Haines, an attorney residing at Chula Vista, who has been employed in all the litiga- 

 tion against the company, as follows: 



First. Those rights arising in cases where the San Diego Land and Town Company, having con- 

 structed its system and laid its pipes, mains, and laterals, conveyed land as "irrigated land," without 

 mention of water in the conveyance. The 'validity of this class of water rights depends on how the 

 question of implied grant is resolved. 



Second. Those cases where, in the earlier history of the company, it voluntarily connected lands 

 not bought of it with its distributing system and furnished water to such lands. The water rights of 

 this class depend upon the construction of section 552 of the civil code, which is as follows: 



" Sec. 552. Whenever any corporation, organized under the laws of this State, furnishes water to 

 irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall 

 remain a perpetual easement to the land so sold, at such rates and terms as may be established by said 

 corporation in pursuance of law. And whenever any person who is cultivating land on the line and 

 within the flow of any ditch owned by such corporation, has been furnished water by it with which 

 to irrigate his land, such person shall be entitled to the continued use of such water, upon the same 

 terms as those who have purchased their land of the corporation." 



Third. The third class of water rights consists of those rights which the corporation created by 

 express contracts in writing for sale of land, together with one acre-foot of water per annmn per acre, 

 delivered at the highest exterior point of the land, for a price for land and water in solido, and subject 

 to such further annual rate as the corporation had the right to establish, pursuant to law. 



Fourth. The fourth class of water rights are those created by express conveyance of water rights 

 to the amount of one acre-foot per acre per annum to land not bought of the company, subject to such 

 annual rates as the corporation should establish according to law. This class of rights dates from the 

 year 1892, as well as those of the third-class. These water rights were at first sold for $50 per acre, 

 and later they were raised to $100 per acre. Water rights of this class for about 200 acres were thus 

 sold. 



The records in the recorder's office of San Diego County show nothing specifically 

 respecting water rights as to the first two classes, but they do show record of the 

 contracts of the third and fourth cla.sses, although it requires a searcher of records 

 to be able to find them, and they are scattered throughout the numerous volumes of 

 deeds and contracts. 



