from Salt River is double what it was in 1884, and consequently more than double the capacity of the river to supply in ordinary years, and still more beyond its capacity in dry years. But the condition of irrigation in Salt River Valley is not as bad as these figures would seem to imply. As above indicated, the adjudicated rights are probably greater than the areas actually irrigated in the years given, and cultivation has been discontinued on some of the tracts formerly irrigated. There is considerable competition for water among irrigators during the dry months, and this has been one cause of the abandonment of areas formerly cultivated. ADJUDICATION OF WATER RIGHTS. It will readily be seen by the foregoing that the various canals and ditches taking water from Salt River have an aggregate capacity much larger than the low-water flow of the river, which is in the neighborhood of 300 cubic feet per second, and the irrigable land under these canals is proportionately in excess of the water supply in the dry season. These facts led to the institution of a suit before Judge Joseph H. Kibbey to determine the rights of the various proprietors, the trial of which was begun in March, 1890, and concluded in August of that year. The amount of evidence taken in the case is very voluminous, consisting of 6,000 pages of typewritten matter. The argument of the case was heard in February, 1891, and occupied fifteen days. Many interesting principles of the law relating to water rights were enunciated in this decision, relating to the method of acquiring water rights and the rights of the community concerning the reasonable use as opposed to the waste of water. This decision was published, but the pamphlet is now out of print, and a portion of the decision is here reprinted on account of its value and interest in connection with this subject. JUDGE KIBBEY'S DECISION. In 1848, and from that time until 1863, that part of the Territory of Arizona within which is the Salt River Valley was a part of the Territory of New Mexico, and there were expressly enacted by that Territory laws governing the appropriation and use of water for irrigation. In 1863 part of the then Territory of New Mexico was erected into a temporary government by the name of the Territory of Arizona, and the laws of New Mexico were, by the acts of Congress establishing the Territory of Arizona, made applicable to that Territory. In 1864 the First legislative assembly of the Territory convened and enacted the code of laws commonly known and cited as the Howell Code. By article 22 of an act of that legislature, known and designated as the "Bill of Rights," it was provided that "all streams, lakes, and ponds of water capable of being used for the purposes of navigation or irrigation are hereby declared to be public property. and no individual or corporation shall have the right to appropriate them exclusively to their own private use, except under such equitable regulations and restrictions as the legislature shall provide for that purpose." This act went into force on the 1st day of January, 1865. This provision has been incorporated in the successive revisions of our code, and is still a part of our statutory law. At the same session of the legislature, and by a law taking effect at the same time, an act governing acequias and irrigating canals was adopted. Section 1 of that act provides that "all rivers, creeks, and streams of running water in the Territory of Arizona are hereby declared to be public and applicable to purposes of irrigation and mining," as afterwards provided. Section 2 saves all vested rights. Section 3 provides that "all the inhabitants of this Territory who own or possess arable or irrigable lands shall have the right to construct public or private acequias and obtain the necessary water for the same from any convenient river, creek, or stream of running water." Section 4 provides for the assessment of damages resulting from the construction of ditches across private property of individuals. Section 5 provides that no inhabitant of this Territory shall have the right to erect any dam, or build a mill, or place any machinery, or open any sluice, or make any dike, except such as are used for mining purposes or the reduction of metals, as provided for in sections 6 and 7 in the act, that may impede or obstruct the irrigation of any lands or fields, as the right to irrigate the fields and arable lands shall be preferable to all others, and the justices of the peace of their respective precincts shall hear and determine the question relative to all such obstructions in a summary manner and cause the removal of the same by order directed to a constable of the precinct or sheriff of the county, who shall proceed to execute the same without delay. Section 7 directs that when any ditch or acequia shall be taken out for agricultural purposes the person or persons so taking out such ditch or acequia shall have the exclusive right to the water, or so much thereof as shall be necessary for the said purposes, and if at any time the water so required shall be taken for mining operations the person or persons owning said water shall be entitled to damages, to be assessed in the manner provided in section 6. Section 8 prohibits the construction or maintenance of bypaths and footpaths across cultivated fields. Section 9 provides that all owners and proprietors of arable and irrigable lands bordering on, or irrigable by, any public acequia shall labor on such public acequia, whether such owners or proprietors cultivate the land or not. Section 10 provides that persons interested in a public acequia, whether owners or lessees of land, shall labor thereon in proportion to the amount of land owned or held by them which may be irrigated by the ditch. Section 11 provides that animals shall be herded to prevent trespass upon cultivated fields. Section 12 provides that in case a community desire to construct an acequia and the persons desiring to construct the same are the owners or proprietors of the land upon which they design to construct the acequia, no one shall be bound to pay damages for the land taken. Section 13 provides for the election of overseers of public acequias. Section 15 provides for payment for services of the overseers. Section 16 prescribes the duty of the overseers, of which, among others, is enumerated the duty to distribute and apportion the water in proportion to the quantity to which each one is entitled according to the land cultivated by him, and that in making such apportionment he shall take into consideration the nature of the seed sown or planted and the crops and the plants cultivated. Section 17 provides that "during years when a scarcity of water shall exist owners of fields shall have precedence of the water for irrigation according to the dates of their respective titles or their occupation of their lands either by themselves or their grantors. The oldest titles shall have precedence always." Section 18 provides for the contribution of labors by irrigators to the maintenance of the acequia. Section 19 prescribes penalties for malfeasance or nonfeasance of the overseer in discharging his duties, and provides for his removal in certain events. Section 20 provides for the filling of the vacancy occasioned by the removal of the overseer. Section 21 imposes a penalty upon the owner or proprietor of land irrigated by an acequia for neglect or refusal to furnish the number of laborers required by the overseer for the maintenance and repair of the acequia. Section 22 prescribes the penalties against any person who shall in any manner interfere with, impede, or obstruct any such acequia or use the water from it without the consent of the overseer. Section 23 provides that the fines and forfeitures recovered under the provisions of the act shall be applied by the overseers to the improvement, excavation, and repair of the acequia, and for the construction of bridges at points where they may be crossed by public streets or roads. Section 24 provides for the appeal from judgment of conviction under any of the provisions of the act. Section 25. "The regulation of acequias which have been worked according to the laws and customs of Sonora and the usages of the people of Arizona shall remain as they were made and used up to this day, and the provisions of this chapter shall be enforced and observed from the day of its publication." Section 26 provides that plants and trees growing on the banks of any acequias shall belong to the owners of the land through which the acequia runs. Section 27 provides that any person owning lands which may include a spring or stream of running water, or owning lands upon a river where there is not population sufficient to form a public acequia, may construct a private acequia for his own uses, subject to his own regulations, provided he does not interfere with the rights of others. In the year 1866 the National Congress enacted a law for the disposal of its lands containing valuable minerals, and among the provisions of that act, with some subsequent slight verbal changes not affecting the substance or meaning, is the following (sec. 2339, Revised Statutes of the United States): "Whenever by priority of possession rights to the use of water for mineral, for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of a ditch or canal, injures or damages the possession of any settler upon the public land, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” Section 2340 provides "that all patents granted, or preemption or homestead allowed, shall be subject to any vested or accrued water rights, or rights to ditches or reservoir used in connection with such water rights, as may have been acquired under or recognized by the preceding section." This provision of the act of Congress has been held by the Supreme Court of the United States, and of some of the States, not only to confirm rights that have been initiated or had vested prior to the passage of the act, but that it was continuous in its operation and was the license of the Government to persons to hereafter appropriate water on the public domain for agricultural, mining, manufacturing, or other purposes. (98 U. S., 453; 13 Oregon, 596.) On the 3d of March, 1877, there went into effect an act of Congress providing that any citizen of the United States, or any who had declared his intention to |