I. Subject Treated in General.

§ 443. Particular Features of Territory.-We must take into consideration in this connection the fact that Utah in its natural state was but little less than a desert. Its streams capable of being utilized are in general small; and its valleys, hemmed in as they are by lofty ranges of the Rocky Mountains which draw the moisture from the clouds, are naturally the most arid. The northern and western parts of the Territory lie within the great basin of the continent, from which no water escapes except by evaporation; and the western and southern parts of the Territory are in the drainage basin of the Colorado river, everywhere distinguished by lofty plateaus and deep canyons, with the river itself many hun

dred feet below the surrounding country. The Wasatch Range of mountains runs in a general north and south direction through the center of the northern half of the Territory, wringing from the clouds the moisture, thus preventing any great precipitation in the valleys. But in the winter the moisture in the shape of snow being stored up in the mountains until needed renders the counties in the valleys very prosperous. The small streams issuing from this great range have cut through the mountains and as a general rule pour their waters toward the west, ultimately flowing into the Great Salt Lake. This lake is but the remnant of a great body of fresh water which occupied all the valleys of western Utah, and from whence came the rich sediments which render the broad bottom lands so fertile. The valleys situated at the base of this range of mountains, although exceedingly arid in climate, receive many streams which carry a large part of the precipitation which has fallen upon the highest summits, and are thus most favorably situated for cheap and effective irrigation. The valleys further to the west, however, though equally fertile, do not receive streams as large or permanent, from the fact that the mountains bounding them are of less altitude.

§ 444. Irrigation in Territory.-Utah occupies the central position in the "arid region," and therefore the details of irrigation therein possess more than ordinary interest, from the fact that they represent conditions intermediate between those of the north and the south, the east and the west. Besides this, the irrigation methods and systems have been developed by men who, unaided by capital or previous experience, have introduced methods of their own, and, taught by repeated failures, have finally achieved success. The country being arid in the highest degree the value of the land is dependent wholly upon the amount of water to which it is entitled; the most fertile areas being almost valueless without water. Utah offers a striking contrast to the rest of the arid region in the details of the customs of distribution of waters according to the priority of rights and also in the regulation and control by the irrigator. With few exceptions the canals and systems

of ditches have been built by farmers and are controlled by them in every minute detail.

The point has long since been reached when all the easily available water has been appropriated, and the increase of the cultivated area has been due to a more careful utilization of the supply. But in nearly every valley in Utah there is now more land under cultivation than there is water to mature the crops in all years. The principle was early established among the farmers of that Territory that those who first made use of the water should ever afterwards be entitled to a sufficient amount to irrigate the area of land originally cultivated by them; and the later comer, whenever scarcity occurred, should not take the water until those enjoying prior rights had satisfied their needs, the latest comer being the first to be deprived and those settling before him losing their water supply in succession in the converse order of their acquisition as it became less and less.

II. General Statutory Enactments.

§ 445. Priority of Water Rights.-February 20, 1880, an Act was approved for recording vested rights for the use of water and regulating their exercise which is worthy of note, as it differs greatly from the statutory laws upon this subject. in other States and Territories of the arid region.1

Sec. 2775 provides that the selectmen of the several counties of this Territory are hereby created ex-officio Water Commissioners for their respective counties, whose powers and duties are prescribed to be as follows: They are to make and cause to be recorded such observations as they may deem necessary of the quantity and flow of water in the natural sources of supply; the average flow thereof at any season of the year, and to hear and determine all claims to the use of water, and on receipt of satisfactory proof of any right having vested to issue to the person owning such right a certificate therefor for recording; and to generally oversee the distribution of the water within their respective counties to all parties having joint rights therein, and to any natural source or

1 See Compiled Laws, 1888, Vol. II, Secs. 2775-2779.

supply; and in case of dispute between any such parties as to the nature and extent of their rights to the use of water, or right of way, or damages therefor, to hear and decide upon all such disputed rights and to file a copy of their findings and decisions as to such rights with the County Recorder, and to distribute the water according to such decisions and findings, unless otherwise ordered by a Court of competent jurisdiction.

Sec. 2777 provides: "The certificate of the Water Commissioners shall state generally the nature and extent of the right to use water of the person or corporation to whom it is issued, and must be filed with the County Recorder for recording."

Sec. 2779. "No person or corporation shall maintain any suit at law or in equity for the determination of the existence or extent of any right or rights to the use of water in this Territory until after the decision of the proper County Commissioners or of the proper Board of Reference, as the case may be, unless said Commissioners or Board shall fail and neglect to hear and decide such person's claim of right to use of water for more than three months after such person may have presented in writing his claim or claims and evidence in support thereof for adjudication. Provided, this section. shall not be construed to affect or impair the authority or jurisdiction of any Court in the issuance of a temporary injunction or restraining order in such cases, or to abridge the right of any person aggrieved by any such decision to main. tain any lawful suit or appeal after such decision may have been made."

§ 446. Same.-Primary Water Rights.-Sec. 2780 provides: A right to the use of water for any useful purpose, such as for domestic purposes, irrigating lands, propelling machinery, washing and sluicing ores, and other like purposes, is hereby recognized and acknowledged to have vested and accrued as a primary right to the extent of, and reasonable necessity for, such use thereof under any of the following circumstances:

"1. Whenever any person or persons shall have taken, di

verted and used any of the unappropriated water of any natural stream, water-course, lake or spring or other natural source of supply.

"2. Whenever any person or persons shall have had the open, peaceable, uninterrupted and continuous use of the water for an uninterrupted period of seven years."

In construing this section the Supreme Court of the Territory, in the case of City of Springville vs. Fulmer,1 held: That where a city, with consent of original appropriators, took control of the waters of a certain creek and distributed them to the inhabitants of a city the right to exercise such control vested in the city, and it was authorized to maintain a suit to enjoin an individual from diverting the waters to his own use.

In the case of Holman vs. Pleasant Grove City 2 the Supreme Court held: That where by common consent a municipality has for many years regulated the appropriation of the waters of a certain river for irrigation purposes, by allowing a pro rata distribution among the appropriators, in case of deficiency it has no right to subsequently divide the appropriators into two classes, according as their use begun before or after a certain arbitrary date, and to restrict only those of the second class; but all must be served alike. And Mr. Chief Justice Zane, in rendering the opinion, said upon this subject: "When the right according to priority is abandoned and the city takes control and assumes and exercises the authority of distribution, with the consent of the holder of the right, he must be held to subject himself to reasonable regulations to be adopted and enforced by the municipality. Ordinances or by-laws of a city regulating and providing for the distribution of water to its residents should be reasonable. They should be equal. Pleasant Grove City had no right, arbitrarily, to throw all the appropriators before 1865 into one class, and all appropriating after 1865 into another class. Such discrimination was inequitable and unequal and therefore void. To ascertain the precise day that water was first used on each lot of ground or tract of land within the

17 Utah, 450; 27 Pac. Rep. 577. 28 Utah, 78; 30 Pac. Rep. 72.