become such, upon the payment of 25 cents per acre, may file a declaration, with the register and receiver of the land district in which any desert land is situated, of his intent to reclaim a tract of land not exceeding one section, by conducting water thereon within the period of three years thereafter. It provides that the right to the use of the water by the person so conducting the same on or to any tract of desert land of 640 acres shall depend upon bona fide prior appropriation, and such rights shall not exceed the amount of water actually appropriated and necessarily used for the purposes of irrigation and reclamation, and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights."

By an act of the legislative assembly of the Territory of Arizona approved February 19, 1877, all the laws of the Territory then in force were directed to be recompiled, which was done; and the compilation is known and cited as the "Compiled laws of 1877," among which are the Bill of Rights and the various provisions governing the construction of private and public acequias and the appropriation and use of water for irrigation that we have above quoted from the Howell Code. The same laws have been carried forward into the revision of 1887. In 1887 the acequia law was not reenacted, but not having been repealed, it is still in force, and the editors of the revision of 1887 have incorporated it in that revision. (Sects. 3199–3226, R. S., 1887, Arizona.)

In 1887 the legislative assembly enacted a law providing that the common-law doctrine of riparian rights shall not obtain or be of any force or effect in this Territory. (Sec. 3198, R. S., 1887. Arizona.)

Incident to the right of the inhabitants of this Territory to appropriate water for irrigation or other uses is the restriction that the means of diversion shall be reasonably adapted to the purpose, to the end that the water that is made free to the public shall not be diminished beyond the quantity sufficient to supply the actual needs of the appropriator; that the means of application of the water to the purposes for which it is appropriated shall be of a character to insure as small a consumption of water as is reasonably consistent to the accomplishment of that purpose. No man has a right to waste a drop of water. Any excess of water that he diverts and wastes by carelessness, negligence, or ignorance of economic methods of cultivation or irrigation, or failure to adopt them, he unlawfully diverts.

It appears from the evidence in this case that large quantities of water are allowed to flow in the various canals and ditches to supply stock with water. This necessarily involves a great waste of water. At a small estimate, I should think the evidence discloses an amount of water wasted thus sufficient, if properly applied to irrigation, to make productive 10,000 acres of land. The amount of water actually consumed by the stock is insignificant. The loss is that due to evaporation and seepage in its long passage through the various canals and the miles of subsidiary ditches. This seems to me to be an unreasonable use of water. I do not mean to deny the right to the use of water for stock, for it has always been a recognized use, like that for domestic purposes. But it can not, I think, be diverted from its original course for that purpose. It has always been the law that stock and the public could drink from a water course, but not to impede its flow or diminish its quantity for that purpose. Instead, I consider the law to be, of bringing the water diverted from a natural water course a long distance by means necessarily involving an enormous proportionate waste to water stock, the stock must be taken to the natural water course to drink, or otherwise provided for.

If the water be in the ditches on a man's ranch in the course of application directly to irrigation, it might be permitted to allow stock to drink of it; but it is an unreasonable use of it to permit water to be in the ditches for that purpose alone.

Another matter for our consideration in this connection is the right of the appropriator of water to the exclusive possession, maintenance, operation, and the use of the conduit, as he has prepared it, for the diversion of the water, whether or not, having constructed such a conduit, he thereby has the right to have the water flow in the river to that conduit and thence to the point where he desires to use it, or whether his right is limited to the actual delivery of water to his lands, with or without increased expense to himself, whether it be by means therefor provided by himself or by means provided by some one else. To illustrate: If those who operate the Highland Canal should divert from the river the water to which the consumers under the Tempe, the Mesa, the Utah, and the San Francisco are entitled, and yet should that company deliver the water so diverted through its own canal to and upon the lands of those under the other canals named, in the quantities to which they are entitled, would those who constructed and since have operated and maintained the Tempe Canal, the Utah Canal, the Mesa Canal, and the San Francisco Canal have any just cause for complaint, or have the owners of those mentioned canals a vested right not only to the use of the water for the purpose of irrigation, but also to have it conveyed by means of its own conduit?

Following out to their sequence the propositions I have advanced as to the ownership of water and the right of appropriation, I am of the opinion that the entire right of the appropriator for irrigation is limited to the delivery of water sufficient for the purpose upon his land at a point where he can use it for irrigation, and that so long as such water is so delivered he may be indifferent to any acts of diversion or obstruction of the flow of water in the natural water course, and has no just cause for complaint therefor. He might be compelled to adopt a more expensive means of delivery of the water to his lands if the means that he has already adopted are such as would result in the loss of water; for, as we have repeatedly affirmed, the water is public property; it is a common stock to which all may go, and no man has any right by faulty construction of his conduits, or by their deficient construction, or by a desire to appropriate more than his share of the water, to diminish that common stock of the water to any greater extent than his necessities require.

This brings us to the question whether or not it is the duty of the prior appropriator to make use of such new means as may result in the more economical conveyance of water than those which he had heretofore provided for himself. Whether or not it would be his duty, if, for instance, he was an irrigator under the Tempe Canal, to construct a new conduit from the Highland Canal to his lands, and thereby conduct his water at a considerable saving of the common stock of water, assuming, of course, that the Highland Canal is capable of carrying, in addition to that which it is already under obligation to carry, the quantity sufficient for his use.

The variety of means adopted for the diversion of water vary under different conditions. The person who first appropriates usually finds in the natural water course a volume of water in excess of that which he himself needs, and to divert the comparatively small proportion of the whole volume which he may need would be inexpensive and easy of accomplishment. It is usually unnecessary for the first appropriator to construct a dam, or that he should excavate a ditch to the bottom of the water course whence he divert his water; because of the superabundance in the natural water course enough for his purpose may be diverted by less expensive means. As, however, others seek, subsequently, to appropriate a

portion of the same stream above the point of diversion by the first, a diminution of the quantity of the water going down to the first appropriator results in such a reduction of the volume of water that the means adopted by the first appropriator will not enable him to continue his diversion, and he must, in order to get the water, either construct a dam so as to divert the water or excavate his ditch deeper, so as to reach and divert the water from the diminished quantity flowing in the natural water course. This would, of course, entail an additional expense

upon the first appropriator.

To illustrate the question, let us suppose that upon a water course there is an average flow of water of 4 feet in depth; that the construction by the first appropriator of a ditch, the bottom of which is 2 feet below the surface of the water, enables him thereby to divert all the water he needs. Suppose that thereafter another appropriator constructs above the point of diversion by the first a ditch which appropriates 2 feet in depth of the water, and diminishes it so in volume that instead of flowing by the point of diversion by the first, 4 feet in depth, it now flows only 2 feet in depth. Still the quantity there flowing is sufficient to supply the needs of the first appropriator. It will be seen that the first appropriator can not, by the means then had, divert his amount of water, and there is necessarily entailed upon him an expense of either further excavation of the ditch or the erection of a dam in order to raise the surface of the water to a point at which it can be diverted into his ditch; and this additional expense is entailed by the act of the subsequent appropriator. It is not a question, as I have put it, of a deficiency in the supply of water, but it is merely a question of the right of a subsequent appropriator to diminish the volume of water flowing to such an extent that it can not be diverted by a prior appropriator by the means he then had. We think that it certainly can not be said that the first appropriator has the right to have the water flowing such a way that by his first means of diversion he can still continue his appropriation of the water. The whole policy of the law is, that all of the waters in the streams in this Territory should be used for mining, agricultural, and milling, and that there shail be no appropriation by anyone in a manner that shall prohibit subsequent appropriation by others, unless that subsequent appropriation leaves an insufficient quantity of water.

The court held that the title to irrigating water inheres in the land irrigated and not in the company diverting the water, and that priority of time at which the water was applied to beneficial use constitutes priority of right to use of said water, and that this priority was determined, not by the date of diversion from the river, but by the date of such actual beneficial use. Evidence was therefore taken to establish the date of actual irrigation of each tract of land under each canal, the date of such irrigation determining the beginning of the right to the quantity of water requisite for such irrigation. Each canal, therefore, was entitled in any given year only to such quantity of water as was necessary to irrigate the lands actually under cultivation, subject to similar rights of other lands previously acquired. The unit of area for this purpose was taken as 160 acres, or a quarter section, although fractions of such tracts were considered in rendering the decision, the lowest subdivision considered being 40 acres, or one-fourth of a quarter section. The duty of water was assumed as 64 miner's inches for a quarter section of land. A miner's inch was defined to be one-fortieth of a cubic foot per second, which made the duty of 1 cubic foot per second 100 acres. On this basis a decision