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cultivates, and if any person uses an excessive supply of water he is liable for damages sustained thereby.

§ 514. State Control of Distribution for Irrigation.Besides the above law on February 7, 1881, there was approved an Act regulating the distribution of water for the purposes of irrigation.1

This Act provides that the inhabitants in any vicinity who use the waters of a certain stream for the purpose of irrigation constitute a water district, and a majority of such inhabitants having such common rights may annually elect a Water Master, whose duty it will be to superintend the distribution of such waters among those having the right to its The duties of the Water Master are: He must regulate the distribution of water among the several ditches according to their respective rights and necessities; provided, that vested rights of individuals, companies or corporations to the use and control of water must not be injured or impaired.

use.

§ 515. Criticism of the Laws of Idaho. The laws in the State of Idaho regarding the control of the waters and the rights of different irrigators depending upon any one stream cannot be called the most satisfactory. They do not appear to guard the rights of individuals. There is general complaint that no one can enjoy the general ownership of water sufficient to render his farm productive until his rights have been tested by law suits, often of the most expensive and protracted nature. Idaho has not kept up with the majority of the other States in the arid region in her legislation upon the subject of irrigation. No recent enactment has been made, and there are many points of weakness in the present statutes which react injuriously upon the agricultural interests. The situation is in many localities complicated by the rapid growth of the new and improved systems of irrigation by means of the construction of large ditches; the rights of such later comers to the water being, however, secondary to those of the older ditch owners. And, as is usually the case

1 See Rev. Stat. 1887, Secs. 3200-3205.

where owners of large canals and owners of small ditches take water from the same source, there is considerable complaint from the farmers. If one owns a small ditch he is in constant fear of being deprived of his share of the water in the river by the larger, better built canals. And on the other hand the farmer who obtains water from the canal company complains of the excessive rates charged and of the unsatisfactory manner in which the water is furnished.

§ 516. Future Laws of Idaho.-Constitutional Provisions. It is quite evident that not many years will elapse before the State of Idaho must remodel her laws upon the subject of irrigation, so that the rights of all parties interested in the waters of the State will be better protected than at present.

Tending toward that end, when the new State Constitution was adopted, Article XV. contained the following:

"Section 1. The use of all waters now appropriated, or that may hereafter be appropriated, for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be, sold, rented or distributed, is hereby declared to be a public use, and subject to the regulation and control of the State in the manner prescribed by law.

"Sec. 2. The right to collect rates or compensation for the use of water supplied to any county, city or town or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.

"Sec. 3. The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same those using the waters for domestic purposes shall (subject to such limitations as may be prescribed by law) have the preference over those claiming for any other purpose; and those using the water for agricultural purposes shall have preference over those using

the same for manufacturing purposes. And in any organized mining districts those using the water for mining purposes, or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes. But the usage by such subsequent appropriators shall be subject to such provisions of law regulating the taking of private property for public or private use as are referred to in Section 14, of Article I., of this Constitution.

"Sec. 4. Whenever any water shall have been or shall be appropriated or used for agricultural purposes under a sale, rental or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use; and whenever such water so dedicated shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes, with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, administrators, successors or assigns shall not thereafter without his consent be deprived of the annual use of the same when needed for domestic purposes or to irrigate the land so settled upon or improved upon payment therefor and compliance with such equitable terms and conditions as to the quantity used and the times of use, as may be prescribed by law.

"Sec. 5. Whenever more than one person has settled upon or improved land with a view to receiving water for agricultural purposes under a sale, rental or distribution thereof, as in the last preceding section of this article provided, as among such persons priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improvements; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the Legislature having due regard both to such priority of right and the necessities of those subsequent in time of settlement or improvement may by law prescribe.

"Sec. 6. The Legislature shall provide by law the manner

in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purposes."

§ 517. Riparian Rights in Idaho. The common law riparian rights may be considered, from the foregoing abstract of the statutory laws of the State and the provisions of the Constitution, to be entirely ignored and abolished. The Constitution, as we have seen, provides: "The right to divert and appropriate the unappropriated waters of any stream for beneficial purposes shall never be denied."

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518. Particular features of State. -Irrigation in State.

II. GENERAL STATUTORY

Section.

ENACTMENTS.

519. Water-rights in general.

520. Right-of-way for ditches.
521. Criticism of above law.-Ri-
parian rights in Nebraska.

I. Subject Treated in General.

§ 518. Particular Features of State. Irrigation in State.--The particular features of the State of Nebraska have been practically described under the same subject in our chapter upon the State of Kansas.1

The practical application of the art in Nebraska has had a great impetus in that State since the very dry season of 1890. Within the State there is much excellent land ready for irrigation, and the water supply is there to serve it, and may be brought upon the land by short and cheap ditches. It will not be many years before the keen logic of profit and loss will drive home the conviction that it is an enormous and inexcusable waste to let the copious volume of the rivers of that State, laden with enriching silt, run away unused to the sea. Although Nebraska is properly classified among the subhumid States, it is coming each year to be recognized there, as in the State of Kansas, that the practice of irrigation will do away with such years of drought as have been experienced by those two States in the past.

II. Statutory Enactments.

§ 519. Water Rights in General.-On March 27, 1889, there went into effect a law in Nebraska to provide for water

1 See Ante Sec. 425.

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