with water, of property in water, or in the soil covered by the water, under all conditions and circumstances. There are many important questions which I have left untouched; there are many questions of great doubt and difficulty, peculiar to this Pacific coast, to which I have not even alluded.

The single object of this essay was to ascertain, as far as possible, the law peculiar to the Pacific states and territories, concerning the waters of natural running streams, the rights of all persons, riparian proprietors and others, to use the waters of such streams, and especially, as being of paramount importance to the agricultural interests, their right to use and consume these waters for the purpose of irrigation.

Upon the foundation of existing law, as thus ascertained, it was my further design to suggest such measures of just and practicable legislation as would render the waters of these streams available, for purposes of irrigation, to the largest communities of persons engaged in agriculture, with the least possible interference with the existing and natural rights of any class. The object thus proposed has been reasonably accomplished. There seemed to be a prevailing opinion among the members of the legal profession-an opinion in which I partook when commencing this essay-that the law of California and other Pacific commonwealths concerning the water rights in natural streams, private riparian rights, the rights of private riparian proprietors, and similar topics connected with the appropriation and use of such waters, was wholly vague, unsettled, and uncertain, to be collected only from doubtful, contradictory, and conflicting decisions. It has been shown that there is, in reality, no foundation for this opinion. In the great majority of the states and territories embraced within our review, the entire field has been occupied by elaborate systems of statutory legislation. In California and Nevada it has been shown, as it seems to me, beyond the possibility of question or doubt, that the principles

and fundamental doctrines of the common law concerning the waters of natural streams flowing through or by private lands, private riparian rights, and the rights of private riparian proprietors, have been established by the courts in an unbroken series of decisions.

There are two antagonistic interests in the state, each endeavoring to control the legislature, and to shape the legislation entirely in its own behalf, to the complete exclusion of the other. These are the riparian proprietors, who assert their common-law rights, and would exclude all other classes from any participation in the waters of the stream, however abundant; and the communities of land-owners away from the banks of streams, who deny any rights of the riparian proprietors, and claim a free, unrestricted access to and appropriation of all natural streams, limited only by the extent of their own needs. The latter class, being the most numerous, has prevailed with the legislature, and shaped the legislation exclusively for its own benefit, in most of the Pacific states and territories, whose statutes I have hereinbefore quoted.

The type of legislation which I have proposed, recognizes the just claims of both these classes; it provides for satisfying the demands of each, so far as possible, without completely sacrificing the other; but it necessarily requires that each should surrender some portion of its exclusive pretensions. I have the utmost confidence that the main elements and features of legislation which I have proposed, might, in the hands of intelligent men, who were familiar alike with the situation and topography of the larger rivers, and of the regions through which they run, and with the agricultural methods, customs, and wants of the adjacent communities, be worked up into a just, practicable, and efficient system for the regulation of irrigation throughout all parts of the state.

CHAPTER X.

IRRIGATION AND DITCH COMPANIES.

[By the Editor.]

L LEGISLATION AUTHORIZing and REGULATING SUCH COMPANIES. Systems of statutory regulation.

$177.

187.

Statute of South Dakota.

188. Act of congress granting right of way.

IL CONSTRUCTION AND APPLICATION OF THESE STATUTES.

189. Acquisition of water rights.

190. Right to use ditch constructed by another.

191. Bridging highways and crossings.

192. Tolls and charges for water.

193.

Contracts with consumers.

194. Duty of company to furnish water.

195. Compelling company to deliver water.

196. Rights of stockholders.

197. Duty to keep ditch in repair; liability for injuries.

198. Liability for failure of water-supply.

I. LEGISLATION AUTHORIZING AND REGULATING SUCH COM

PANIES.

§ 177. Systems of statutory regulation.

Within the past few years the subject of irrigation has become one of paramount importance in certain of the western and southwestern states. And as this subject developed, it became apparent that additional legislation,

for the protection of the available waters, and for regulating the appropriation and use of streams for this purpose, was a matter of urgent necessity. The states, therefore, addressed themselves to the task of framing statutes which should efficiently meet these requirements, and at the same time make the benefits to be derived from an economical and well-planned system of irrigation available to the greatest possible extent throughout their territories. These statutes have been enacted, for the most part, since the preceding portions of this work were originally written. But it is believed that the propriety of including in the present edition a synopsis of their terms, and a discussion of the judicial decisions in which they have been construed, is too obvious to require an apology.

The statutes to which we refer, though exhibiting a great deal of variety in the detail, will admit of being generally divided into three classes. The system established by the laws of the first class is that of "irrigation companies" or "ditch companies." These are private corporations, authorized by the statute and regulated by it in respect to their powers, duties, and liabilities. Their object is to acquire exclusive rights to the water of certain streams or other sources of supply, and to convey it, by means of ditches or canals, through a region where it can be beneficially used for agricultural purposes. They are invested with the power of eminent domain for the purpose of acquiring the necessary rights of way, and also, in some states but not all, for the purpose of condemning the water rights of appropriators and riparian owners. They may divide the water among stockholders, or make contracts with consumers, or furnish a supply to all who apply at fixed rates. But the legislature usually reserves the right to regulate their charges, and the courts compel them to furnish water to all persons entitled thereto. They are made liable for dam

ages caused by the operation of their works and by the failure to keep the same in good repair. And on the other hand, their property is protected from injury or interference by severe penal laws.

The system established by the statutes of the second class is that of "irrigation districts." These are public and quasi-municipal corporations, each comprising a defined region or area of land which is susceptible of one mode of irrigation from a common source and by the same system of works. They are organized on petition, hearing, and order of the proper local authorities, and are governed by their own officers, usually a board of directors, assessor, collector, and treasurer. The district has power to acquire, either by purchase or condemnation, all the lands, waters, and water rights needed for its purposes, and to construct the necessary canals and other works. Its indebtedness is to be bonded, and the interest on the bonds-and the principal by successive instalments-is to be paid by annual taxation on the real estate within the district. The water distributed for purposes of irrigation is to be apportioned ratably among the land-owners of the district, to each according to the ratio which his last assessment for district purposes bears to the whole sum assessed upon the district.

The statutes of the third class provide a system of state supervision and control of the appropriation and use of water. They contemplate a division of the state into "water districts," which, however, are not public or municipal corporations. In each of these districts there is a "water commissioner," who, in conjunction with the division superintendents and the state engineer, is charged with the enforcement of the law. The plan of these statutes is not to disturb existing appropriations or water rights, but to secure, by official supervision, the just distribution of the water according to the rights of all who have