14 
Bulletin 67. 
of the statute demands the most constant vigilance. Many grave 
wrongs have been permitted on account of the failure of water 
commissioners to discharge this important duty. The writer’s 
attention was called within the last two or three years to the 
fact that on one of the streams of the state for several years per¬ 
sons having ditches of quite late construction and without ju¬ 
dicial decrees, had been taking water from sloughs and tribu¬ 
taries of the river, to the injury of early decreed appropriators 
on the stream, without any interference or action of the water 
commissioner to prevent such abuse. 
It is manifestly the intention of the law that the water com¬ 
missioner should act as faithful servant of all the appropriators 
on the stream, to see that their rights are protected under the 
judicial decrees. The administration of the water system of the 
state was provided by the legislature so that there should be 
some one person to act as agent for all, to see that their rights 
were respected, so as to obviate the necessity of farmers, busy 
with their agricultural work, employing a man to patrol the 
stream and to discover whether or not they were defrauded of 
their property rights. It is to be feared that there are too many 
water commissioners who are neglectful of the emphatic lan¬ 
guage of the statute requiring them to be constantly watchful. 
Too many commissioners wait to have complaint made to them 
of unlawful diversions, without themselves taking the initiative 
in such matters. It is evidently not the purpose of the statute 
that a water commissioner shall draw a fairly liberal per dieni 
merely for giving orders concerning a few of the main ditches 
in his district, and waiting for some one to complain that a 
wrongful diversion is being made by a late ditch from some 
slough or tributary, or from the main stream itself, but that he 
should be actively concerned and have his assistants under his 
immediate supervision active to watch for abuses, and to prevent 
them, if necessary by the full force of the county. 
It would seem that the statute mentioned was passed in 
1889 1° enforce greater vigilance on the part ot the water com¬ 
missioners. Three sections (Secs. 2386, 2388 and 2391, M. A. 
S.) were enacted for this purpose. The vesting a water com¬ 
missioner with the power of a constable, and imposing upon him 
the duty of prosecuting for violation of his orders, and particu¬ 
larly the fifth section (2391 M. A. S.), making it his duty 
to be actively employed, supervising and directing putting in 
headgates, waste gates, etc., and acting as a guard of the public 
stream, and especially making it a misdemeanor subject to $50 
fine to willfully neglect this duty, indicates the legislature was 
led to believe that the previous general definition of his duty to 
divide the water according to the prior rights of all, was not 
found in practice sufficiently definite to bring forth the activity 
