the water-shed tributary to a proposed storage reservoir. Stations at which observations are taken should not be over

a mile apart. These stations should be correctly located on the plat of the watershed, so that a daily record of the results of each observation with the number of the station at which it was made can be kept for future reference.

The value of such observations even made for only one year is considerable, but in order to fix a minimum and maximum rainfall they should be kept for a number of years. Statistics show that dry and wet years occur in groups of from three to ten years. Hence observations must be made for a period covering half a score of years or more in order to ascertain the fluctuations of rainfall with certainty. (To be continued.)

I

SEE by the reports that my friend A. J. Chandler of Phoenix, Arizona, has finally won his case in the supreme court of that Territory by reversing the judgment of the district court. Well, he ought to have won. In the face of express statute of Arizona, and in the face of the almost universal decision of the supreme courts of the Western States and Territories upon the subject the district judge must have spent many a sleepless night in digging up an old common law theory which he thought would fit the case. "Water should, and by right ought to flow where it has been accustomed to flow." A theory so ancient and mildewed that it smells of the peat bogs of England, where the principal question is how to drain the water off from the land and not how to permit to run over them in such a manner that it will do the greatest good to the greatest numbers.

In the case before us, the plaintiffs and appellees were the prior appropriators and users, as between themselves and appellants, Mr. Chandler and associates, of certain water of the Salt river and conducted the same through what is known

as the "Tempe Canal" to where they used it for the purposes of irrigation, and turning a grist mill. Appellants having appropriated, and otherwise secured, the use of water from the river, subsequent to the appropriation of the appellees, at a point in the river several miles above the point of diversion of appellees, for the purpose among other things, of creating, generating, and perpetuating, for public and private use, a water power of not less than 800 horse power," then sought to mingle the water of the appellees with their own, and run it from the river through their canal over a precipice having a fall of forty to fifty feet where their power plant was located, and afterward delivered it back to the appellees' ditch at a point above any place where the water was used by them, and at the time when this action was commenced to enjoin appellants they were so actually running and delivering said water. An injunction was issued by the district judge and upon the final hearing of the case the injunction was made perpetual, and restrained ap. pellants from interfering with the water of the appellees, except to use it for

mechanical purposes, and provided that said water should after such use be returned by appellants to the natural channel of the river above the mouth of appellees ditch. This requirement was, of course, in strict conformity with the provisions of the common law relative to riparian rights, and upheld the doctrine that water after being used by any person to the extent permitted by common law must be returned to its original channel not perceptibly diminished in quantity and undeteriorated in quality.

The Supreme Court held that the common law had no application whatever to the use of water in Arizona. And in the

case at Bar it held that an injunction would not lie at the instance of a prior appropriator of the water of a river through an irrigation ditch to restrain a subsequent appropriator further up a stream from diverting water from the river and after using it returning it into complainant's ditch, where it appears that the water is turned into such ditch above the point where it was to be used by complainant and where the complainant had the same quantity as he would have had if defendant returned the part used by him to the river.

Judge Bethune, who rendered the opinion of the Supreme Court, in the course of his remarks said: "It seems to be admitted that there could be no objection to the use by a subsequent appropriator of the waters of a stream already appropriated, should the water be returned uninjured to the channel above the point of diversion of the prior appropriation. But, as we have seen, this rule springs from the common law, which, as already stated, has no application in regulating our water rights. We cannot perceive any reason why, under our system of the use of water, a person entitled to the use of a certain quantity of it should receive it at one place, instead of another, provided his rights are in no way affected or curtailed. The appellees claim a certain quantity of water for the irrigation of their lands and to run Hayden's Mill. If they get it, why should the manner in which they get it matter to them, especially when one may add useless burdens upon the exercise of absolute rights of the appellants, and either way would equally subserve the rights of appellees?

"In our view of the case, no rights of appellees are invaded by reason of the delivery of the water claimed by them into their ditch above the point of use by them. The evidence fails to show that any damage has accrued, or will accrue, to them by having their water delivered to them at the point to which appellants were delivering it at the commencement of this action, or that their remedies against appellants for a failure to so deliver the quantity of water, to which appellees are entitled, or for any damages otherwise suffered, would be in any manner different from those appellees would have should appellants be required to deliver the proper quantity back into the channel of the river. We are of the opinion that the appellants were exercising an absolute right in the use of the water, of course subject to any penalty they may incur by the use of such right. We therefore do not think this is a case for an injunction, but that the appellees have ample modes of redress at law for any damages which may be occasioned by an improper action of appellants in the use of the water, or in delivering it back to appellees. The judgment of the lower court is reversed, and the cause remanded for a new trial."

The case of appellees was simply another example of the selfishness of man. Not injured in any manner themselves they wished to prevent Mr. Chandler and his associates from using the water and thus preventing the greatest good to be done to the greatest number, and the further development of the country.

But the district judge who granted the injunction, what shall I say of him? His audacity is only equaled by the district judge of Idaho who rendered that remarkable decision upon the theory of "equitable division" of waters in the case of Hillman vs. Hardwick and others (reported in the 28 Pac. Rep., 438). In that case the evidence was that there were about eighty to 100 inches flowing in a certain stream, and the plaintiff claimed by virtue of a prior appropriation 125 inches of water. But in spite of the fact that his claim to this amount and his actual application of all of the water for the purpose of irrigation were both proven, the trial court rendered a judgment giving the defendants. permission to divert something like 800 inches over and above the amount claimed

by the plaintiff. Of course the supreme court of that State reversed the judgment below, and Mr. Justice Huston, in rendering the opinion, said:

as

"We then have this anomalous condition of affairs: A creek or stream flowing 100 inches of water, with appropriations of that water to the amount of 800 inches, in addition to the prior appropriation of the plaintiff of all the water of the creek and its tributaries. To the ordinary mind this might, and perhaps does, present a somewhat difficult problem for judicial solution, unaided by the statutes, but the learned district judge found no difficulty whatever in reaching a conclusion unique as it is unprecedented. We say unprecedented, because this question, under statutes identical with that of Idaho, has been decided so often in favor of the prior appropriator, that it has been generally considered, by both professionals and profanes, as a settled question; as, for instance, the question has been decided up to 1889, twice by the Supreme Court of the United States, seventeen times by the supreme court of California, five times by the supreme court of Colorado, six times by the supreme court of Nevada, twice by the supreme court of Montana, once by the supreme court of New Mexico, twice by the supreme court of Utah, once by the supreme court of Oregon and repeatedly by the supreme court of Idaho; in fact, the decision of the learned judge in this case stands alone. We have been unable by the most diligent search to find a precedent or parallel for it. Heroically setting aside the statute, the decisions and the evidence in the case, he assumes the role of Jupiter Pluvius, and distributes the waters of Gooseberry creek with a beneficent recklessness which makes the most successful efforts of all the rain wizards shrink into insignificance, and which would make the hearts of the ranchers on Gooseberry dance with joy if only the judicial decree could be supplemented with a little

more moisture. The individual who causes two blades of grass to grow where but one grew before is held in highest emulation as a benefactor of his race. How then, shall we rank him, who, by judicial fiat alone, can cause 800 inches of water to run where Nature only put 100 inches? We veil our faces, we bow our heads before this assumption of judicial authority.

"Evidently the court assumed that Gooseberry creek was as inexhaustible as the widow's crust, or else that its decree possessed the potency of Moses' rod. All the provisions of the statute in regard to priority of right incident to priority of appropriation are ignored, as are the sources and volume of supply."

From the rulings of these two district judges in these cases it is evident that in some parts of the West all do not understand the arid region doctrine of the appropriation of waters. The rights of the first appropriator must be respected. But water is too precious an article in this part of the country to be permitted to run to waste, or to prevent its use to its fullest capacity. The great weight of modern authorities hold that where a person has diverted a certain portion of the waters of a stream and permits a part of the water so diverted to run to waste, or fails within a reasonable time to use a certain portion of the water for some beneficial use or purpose, he can only hold that part of the water diverted which has been actually applied to some beneficial use, and his priority extends only to the quantity so used. Also the authorities hold that in such a case there has been no appropriation as to the water not used and which ran to waste, but that that part might be subsequently appropriated and held by other parties, provided they took the proper steps, and they, themselves, applied it to some beneficial use or purpose. The final test in all cases is, whether or not all of the water diverted is actually applied to some useful or beneficial purpose.

F we have fairly ascertained the habit

conditions most favorable to its best development, we can more intelligently adopt. methods of cultivation that will most nearly supply these conditions. The studies so far made in corn roots suggest that the food gatherers love a finely-pulverized soil well supplied with humus, in the zone from the third to the tenth inch in depth from the surface. In valley soils containing sand this zone may be increased to 12 to 16 inches in depth. As the surface roots or food gatherers do their principal work in the first 40 days of growth, we are led to doubt whether all the essential conditions can be supplied by listing old corn ground each spring, and preparing the soil for root growth while the plant is growing. This method involves heavy root pruning, or, in avoiding this, leaves a small area of pulverized soil for the feeding roots to work in.

Assuming that all obstruction to free entrance of water into the subsoil by use of a subsoil plow (if such obstruction existed) has been removed, I would favor fall plowing, about 8 inches deep, turning under a green catch-crop of cow-peas, soybeans, Kaffir corn, or sorghum. If the implement is not specially designed for pressing the soil around the vegetable matter turned under to gather the moisture and start it rotting, follow the plow promptly with a disk harrow, and the disk with a drill that admits of the shoe being elevated so as to allow the wheels to sink down into the loosened soil to the greatest depth possible and pack the lower soil while leaving the top soil loose. harrow should be passed over the ground after every heavy rain till winter sets in, to keep the top soil dry and prevent baking of the surface soil and evaporation of the water. In the spring open lister furrow, keeping, if possible, above the layer of green manure turned under the previous fall.

The

In order to get as much of the butt end of the stalk below the level of the ground as possible so that more joints may be covered and more circle roots developed, care must be taken not to let any loose irt roll into the furrow till after the plant *[In the Kansas Board of Agriculture Quarterly.]

appears, as the first roots which form the base of the stalk develop as near the surface as they can find moisture after the first green leaf appears. Hence the farther below the level of the ground the first leaf comes through the soil, the longer will be the section of the stalk below the surface and the greater the number of roots that can be developed.

As the plant grows in the lister furrow only the finest soil should be allowed to sift in around it, till the ground is all brought to a level, to facilitate the development of new roots as new joints are formed in the stalk and covered by the soil. If the soil is very fine textured and warms up slowly in the spring, or if the planting is done very early in the season, then a deep cultivation of the hill between the rows may be helpful in warming the soil to a greater depth, so as to make more favorable conditions for root growth at a greater depth, and prevent the first roots from coming so close to the surface early in the season, within the range of the cultivator tooth. After the plant is six inches high, and the soil warm enough for root growth to a depth of one foot, the cultivation should not exceed three inches in depth, and should all be for the purpose of drying out the top soil to conserve the moisture. With many the object of cultivation is simply to destroy weeds, but if the ground is promptly cultivated after every rain there will be no weeds, as small weeds cannot develop when the top soil is kept dry for two inches in depth. In wet seasons large cultivators may be needed to destroy weeds, but for dry-soil mulching a small-toothed cultivator, or one with narrow spring teeth, the points set well forward, so as to cut the top soil clean from the soil below, and to run shallower beside the corn row than in the middle of the furrow, will usually mulch the soil best. The forward reach of the spring tooth brings the clods and coarsest material to the surface, and sifts the finest soil underneath, lessening danger of loss by the wind, and leaving the surface roughened, so as to break the force of heavy rain-drops that tend to compact the surface, a condition favorable to baking as it dries out.