This

issued February 15, 1892, says on page 12: "On nearly every stream more water is claimed than is available." was also true at the time the Act under discussion was enacted, on March 23, 1891. This proviso has also caused much dissatisfaction among the people of the State, and in many cases has prevented the satisfactory organization of irrigation districts. Under the law as it now stands all vested water-rights must be purchased with the consent of the owner thereof and at his price. A great stumbling block in the way of progress and the workings of the law is this proviso, from the fact that nearly all the waters available for irrigation within the State are claimed by individual appropriation.

§ 412. Common Law in State Riparian Rights.-Up to very recently it was held in Nevada that the common law of riparian rights, as understood by the Courts of England and those of the Eastern States, were applicable in that State. But a decision of the Supreme Court of that State in 1889, decided: That the term "Common Law of England" was employed in the statute adopting it in the sense it is generally understood in this country, and the intention of the legislature of that State was to adopt only so much of it as was applicable to the condition of the State and the needs and conditions of the people; and it was further held that the common law doctrine of riparian rights was unsuited to the condition of that State.1

1 Reno Smelting M. & R. Works vs. Stevenson, 20 Nev. 269; 21 Pac. Rep. 317; see also Jones vs.

Adams, 19 Nev. 78; 6 Pac. Rep.

242.

I. Subject Treated in General.

§ 413. Particular Features of State.-The State of Washington is similar to Oregon in climate and topography. The Cascade range, which trends in a direction nearly north and south at a distance of about one hundred and fifty miles from the ocean, forms the most conspicuous feature of surface relief. This range divides the State into two great parts, differing greatly in climate and agricultural capabilities. On the western side of the range the annual precipitation is heavy and a dense forest covers the mountains and smaller hills, while east of the mountains the rainfall is much less, and vegetation is comparatively scanty and almost entirely dependant upon irrigation. The great plains of the Columbia form a most striking feature of arid lands. These extend from the foot hills of the Cascade range eastward to the mountains of Idaho, and from the mountainous or broken region below the

border of British Columbia southward across the State. The water supply of these plains is exceedingly small, but in the Columbia River itself there is an amount sufficient for all the needs of irrigation, but unfortunately the river is hundreds of feet below the level of these arable lands, and its waters can be taken out only upon a very narrow strip of sandy bottom. The State of Washington affords an interesting field for the student of irrigation possibilities, and presents some results that have attracted considerable attention. Of all the States where irrigation projects are being carried forward Washington has one of the greatest available water supplies in proportion to the extent of arid land. But this supply is so situated that it requires great enterprises and a large amount of capital to develop it.

§ 414. Irrigation in State.-Fortunately for the State of Washington some crops can be raised without irrigation nearly every year over a great part of these plains. But wherever there is an available water supply the farmers have begun to make use of it for irrigation as an adjunct to the rainfall for watering such plants as are injured by the long summer droughts. It is gradually being recognized that the greatest prosperity can come only by a thorough development of the waters of the State. And, as is usually the case in the earliest attempts of irrigation, at present the diversion is accomplished by small ditches in which a few farmers have joined together to bring the water from the streams along the lower levels and the river bottoms. From what we have said it is very apparent that the relation of irrigation to agriculture is determined largely by convenience and the question of expense. And in most counties throughout the State irrigation is still in the experimental state, being used to tide over an occasional drought.

II. General Statutory Enactments.

§ 415. Right to Appropriate Water for Manifold Purposes. On March 9, 1891, the State Legislature passed an Act which has been embodied in the compiled statutes of that State.1

1 See Hill's Annotated Statutes, Sections 1709-1717.

Section 1709 provides that: "The right to the use of water in any lake, pond or flowing stream in this State, or the right to the use of any water flowing in any river, stream or ravine of this State for irrigation, mining or manufacturing purposes, or for supplying cities, towns or villages with water, or for water works, may be acquired by appropriation, and as between appropriations the first in time is the first in right."

§ 416. Same.-Water how Appropriated.-The Act provides that a notice must be posted in a conspicuous place at the point of intended storage or diversion; it also sets forth specifically what the notice must contain, and that it must within ten days after it is posted be filed for record in the office of the County Auditor of the county in which it is posted. The appropriator must commence the construction of the works within three months after the notice is posted if it is intended to store the water. If the use is by diversion he must within six months after the notice is posted commence the construction of the works by which it is intended to divert the water; and it is expressly provided "That such works must be diligently and continuously prosecuted to completion unless temporarily interrupted by the elements." provides that by a strict compliance with the above rules the appropriator's rights to the use of the waters actually stored or diverted relates back to the time the notice was posted; but a failure to comply with the rules deprives him of the use of the water as against a subsequent appropriator of the water who faithfully complies with the same.

The right to the use of water acquired by appropriation may be transferred like other property by deed, and it also provides that the purpose for which water is appropriated may be changed.

§ 417. Right to Appropriate Water for Irrigation.On March 4, 1890, there was approved an Act entitled, "An Act providing for the use of water for the purpose of irrigation, and providing for the condemnation of the right of way for ditches and to carry water for such purposes."1

1 See Hill's Annotated Statutes, 1891, Sections 1718-1783; Stat. 18891890, p. 706.

"Sec. 1718. Any person is entitled to take from any of the natural streams or lakes in this State water for the purposes of irrigation not heretofore appropriated or subject to rights existing at the time of the adoption of the Constitution of this State, subject to the conditions and regulations imposed by law; provided, that the use of water at all times shall be deemed a public use and subject to condemnation as may from time to time be provided for by the Legislature of this State." 1

§ 418. Same.-General Rights Provided by the Act.The Act provides that riparian proprietors shall be entitled to use unappropriated waters. Provisions are made for condemnation for right of way of ditches and for apportioning the water when the volume in any natural stream shall not be sufficient to supply the continued wants of the entire country through which it passes. Power is given to the judge of the Superior Court of the county to appoint three commissioners, whose duty it shall be to apportion in a just and equitable manner a certain amount of the water upon certain alternate days, as they may think best for the interest of all parties concerned, with due regard to the legal rights of all. The basis of their apportionment is determined upon the volume of water usually flowing in the natural streams; and, in the event of any of the streams being unusually low, the rights of all persons to water out of the said streams are determined in accordance with the reduction of the water in said stream or lake.

Sec. 1731 provides that all persons on the margin, brink, neighborhood or precinct of any natural stream shall have the

1 As to the authority given appropriators to rights in water prior to the passage of this Act see Thorp vs. Tenem, I Wash. St Rep. 566, 570; 20 Pac. Rep. 588; Ellis vs. Pomeroy Improvement Co., I Wash. St. 589; 21 Pac. Rep. 27; Geddis vs. Parish, 1 Wash. St. 589; 21 Pac. Rep. 314, where it was held that where one has ap

propriated the water of a stream flowing across the public lands by erecting on his own lands a ditch, one acquiring title from the United States takes subject to such appropriation, and he cannot by obstructions on his own land divert the water from the ditch of the prior appropriator.