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it, proceeds with the suit and annuls the entry, when the report of the County Treasurer sent to this office shows that the purchaser i
ti not in arrears.
Section 3555 should be amended so as to limit the amount of costs, as was formerly done by Section 7 of the Act of April 9, 1861. A the matter now stands, the bills presented run up from $10 to $128
hi for each case-all of which comes out of the School Fund; and the Board of Examiners have no control over the amount of costs,
fo according to the decision of the Supreme Court. The service being the rendered, the bill must be paid, as the law now stands. The law of 1861 referred to, fixed tlie cost of eacli annulment at $32, and cer. T tainly it is worth no more now. But there is another view to take of this matter. As all services, except for printing, are rendered by county officers, who are all salaried, there is no reason why any charge should be made against the State by them or for them. It is true that reasonable charges for the benefit of the county should be collected from the delinquents; but in case of failure to collect from them I do not think the charges should be taken out of the School Fund, as they are now, and especially when there is no law limiting the amount.
OT an tjo lar mc COI
Section 3571. There is great difficulty experienced by the Surveyor-General under this section, because there is no provision in any State law, saying who shall determine whether land sold is not the property of the State, or how it shall be determined that land is not the property of the State. The absurdity of this section will be apparent when I state that the law contemplates the sale of land
, before it becomes the property of the State, except of the 16th and 36th Sections in place and of swamp land before it becomes the property of the State. A strict construction of this section would allow any man who has bought land of the State and paid interest thereon for years, but which land has not yet become the property of the State, to demand his money, and the Register would be obliged to issue the certificate of repayment. But it is evident that this was not the intention of the law-makers, but that repayment should be made when it has been proved that the land is not or cannot become the property of the State. The law is silent, how. ever, as to how or by whom the condition of the land is to be determined. If left to the Surveyor-General to determine, or if said officer was authorized to accept the decision of the General Land Office as to the validity or invalidity of the State title to the land, then the difficulty in executing this section would be removed, Modification of this section becomes necessary in view of the Act of Congress of March 1, 1877, relating to defective indemnity State selections.
Se th w] of fiy la St sh foj to in th
tai gre an pr tat ра if in
In my last report I referred to the necessity of greater interest being taken in tiin ber culture in California. I would recommend to our farmers to emulate the people of some other States, where one day in the year has been set apart for tree planting, called arbor day. Were this plan adopted in California, and faithfully kept up for ter years, what a difference the country would then present in point of attractive beauty and grateful shade.
But it is necessary to stop the wasteful destruction of the growing of is
tiinber, both on the lands of the United States and of the State.
Complaints frequently come to this office concerning parties who
go upon State lands, and apply for them merely with the view of ste, using their application as a shield to protect them while they are Ag
removing the timber from the land, intending to abandon it when it (28
has been despoiled of its timber, which is its real value. he
It is true that the law of April 27, 1863, on this subject, is still in sts,
force; but how many of our people or officers know anything about
this law, or would take the pains to have it enforced when its ng
enforcement would entail upon them a loss of time and money? of
The law is as follows: erof by
An Act to provide for the punishment of persons cutting timber upon or carrying the same, when cut down, from any of the swamp, tide, or marsh, or school lands belonging to the
[Approved March 27, 1863.] be SECTION 1. Any person or persons who shall cut down any timber growing or standing upon om
any swamp and overflowed, tide, or marsh, or school lands belouging to or claimed by the State,
or who shall destroy or carry away any timber, when cut down, for the purpose of selling, or in pol
any other manner disposing of the same for money or any valuable thing, shall, upon convicng
tion in a Court of competent jurisdiction, be fined in any sum not exceeding one thousand dollars nor less than fifty dollars, or imprisonment in the county jail not less than twenty-five nor more than one hundred days, or both such fine and imprisonment, at the discretion of the
Court; provided, however, that nothing in this Act shall be so construed as to prevent any perur- son from removing and selling any wood which they inay have cut or caused to be cut previous ny to the passage of this Act, on any lands belonging to or claimed by this State. he
All fines collected under the provisions of this Act shall be paid into the County Treasury of the county where the lands are situated, and placed to the credit of the School not
Fund, if the lands upon which the trespass was committed were school lands, otherwise to the be credit of the Swamp Land Fund. ad, nd he ild I would invite your attention to the law of Congress, approved est September 4, 1841, relating to the appropriation of the proceeds of rty the sales of public lands, etc. This Act named the eight States in be which public lands were then for sale, giving said States ten per cent at of the net proceeds, and making provision for the distribution of int five per cent among certain new States and Territories. But this
law did not contemplate a division among other tlian the twenty-six
States and the Territories then existing. No good reason can be be shown why California should be excluded from this distribution, if for it is a public land State, and has contributed largely to the fund ral to be distributed among other States. It was evidently an oversight he in not putting California upon an equal footing with other States in ed. this matter when she came into the Union. My predecessor, William of Minis, taking the same view of the matter that I do, appointed Capate tain John Mullan as an agent of the State to aid in procuring Con
gressional legislation that would give us an equitable distribution, and so well has he succeeded, that mainly through his activity in presenting and urging the matter on the attention of our Representatives and before the Land Committees in Congress, that a bill has passed one house and is now pending in the other house, which will,
if it becomes a law, give California the share she is justly entitled to 2.1
in connection with the other States. Captain Mullan has constantly
kept this office informed of what he has been doing in the matter. of
THE FIVE PER CENT FUND.
atte wor ditc
6. und or b
sum the with
1 miks the
BE puri prop
In view of the fact that much of the land in California, though
There is but one way to accomplish this, viz.: By a system of irri-
the State to pass into the hands of private individ.
I therefore deem it not out of place in my report to show to some extent what was attempted in our State in early days to retain control by the people of the State over the mode of distributing water for irrigation. Also, what laws have been passed on the subject in New Mexico and Colorado, where the climatic condition is similar to that of California, and where irrigation is equally essential.
From these sources we may learn some important facts, and they may have some influence in shaping legislation, so as to accomplish the greatest good for the greatest number affected by this irrigation question.
The people of the State have said in the Constitution that "the use of all water now appropriated, or that may hereafter be appropriated for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State IN THE MANNER TO BE PRESCRIBED BY LAW.”
This addresses itself to the Legislature, and, therefore, I have concluded to designate the laws passed from time to time on the subject in order to facilitate their references to them:
visic be u
SE samt wate in az offen Peac
SE ties 1
SE natu: such
SE wise, lands the 1 shall poges This
SEC tione all la the w
An Act creating a Board of Commissioners and the office of Overseer in each township of the
[Passed May 15, 1854.]
SECTION 1. There shall be in each township of the Counties of San Diego, San Bernardino
a Board of Commis
and also an 'Overseer, to be elected
up at the most public places in such township, for the election of three
be to see that said elections are conducted in accordance with the laws regulating
Sec. 3. The duties of the Commissioners shall be to examine and direct such watercourse, and apportion the water thereof among the inhabitants of their district, determine the time of
SRC struct they have wher tion t the d Teen which (1874 SRC
le 2. W d. at
using the same, and upon potition of a majority of the persons liable to work upon ditches, lay out and construct ditches, as set forth in such petitions.
SEO. 4. The duties of the Overseer shall be to execute the orders of the Commissioners, to attend to and see that the water is used as apportioned by said commissioners, to superintend the porks ordered by them, to see that the water is kept clear of filth of every description, and the
kept in good repair. SEC. 5. Each able-bodied male inhabitant in every township over the age of sixteen and under fifty, shall, when required by the Overseer, upon not less than three days verbal notice, or by notice
in writing left at their residence, perform or cause to be performed, any number of days work, not exceeding twelve in any one year; provided that no
person shall be compelled to work more than two successive days at any one time, and in no case sball any person or persons be compelled to work or expend money on any ditch or ditches who does not use the SEC. 6. In case any person, after being duly notified, as required in the preceding section, shall fail to do, or cause to be done, the amount of work required, he shall be liable to pay the surn of three dollars per day for every day that he shall fail to work, recoverable at the suit of the Overseer, before any competent tribunal, to be by him applied to the construction of ditches within his township.
In case a watercourse should run through two or more townships, and the Commissioners should not be able to agree as to the amount of water to be used by each township, the County Judge, upon application of the Commissioners, shall determine the difficulty: BEC. 8. The Commissioners shall allow the Overseer reasonable compensation, and for that purpose they are hereby authorized to levy a tax within their township on persons benefited, in proportion to the amount of water used by each. BBC. 9. Where water rises on land owned by any person, it shall not be subject to the provisions of this Aet, but in all cases after it has passed beyond the limits of said lands, it may be used as provided in this Act. Sec. 10. In all cases the Commissioners shall have the right of way to cut ditches through their townships.
Any person obstructing the waters of any ditch, by dam or otherwise, causing the same to overflow or waste, or who shall trough, or cause to be thrown any filth in any such water ditch, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined in any sum not more than ten dollars for the first offense, and twenty for every subsequent offense of the same kind, recoverable at the suit of the Overseer before any Justice of the Peace of the township, to be appropriated as aforesaid.
In case any person should be damaged by the breaking of any such ditch, the parties using such ditch shall be liable for all such damages.
Src. 13. Bridges shall be constructed and kept in repair over such ditches by the parties using the water, at such points as the Board of Commissioners shall direct. SEC
. 14. No person or persons shall direct the waters of any river, creek, or stream from its natural channel, to the detriment of any other person or persons located below them on any
SEC. 15. Any person or persons who, under this Act, shall conduct water by ditch or otherpise, across the lands of any person or persons, shall pay to such person or persons owning such lands, such compensation as can be agreed upon by the parties owning the lands; and in case the parties cannot agree, each party shall appoint one arbitrator, and the two so appointed shall select a third. The arbitrators so chosen shall appraise the lands used for ditehing purposes, under oath, and their decision shall be final in the premises; provided, that nothing in this Act thall be so construed as to apply to the mining interests of this state. Seo. 16. The Mayor and Common Council in all incorporated cities in the counties mentioned in section first of this Act, shall ex officio be constituted the Board of Commissioners on call lands appertaining or belonging to their respective cities, and shall have power to regulate the water privileges therein.
le 1эр . to
GENERAL LAWS OF NEW MEXICO-ARTICLE I, CHAPTER I.
109 is ed
[Act of July 20, 1851.] SPOTION 1. All the inhabitants of the Territory of New Mexico shall have the right to construct either private or common acequias, and to take the water for said acequias from wherever
with the distinct understanding, to pay the owner through whose land said acequias bave to pass, a just compensation taxed for the land used. If the owner or owners of lands there a new ditch for an acequia is to be made, should ask an exorbitant price as a compensawon therefor, which shall not be satisfactory to the owner or owners of such acequia, it shall be the duty of the Probate Judge of the county in which may occur, to appoint three skillful honen of well known honesty, to make an appraisement thereof and fix the compensation, Fhich once done, shall be executory and without appeal from the judges trying the case. impediment of the irrigation of lands or fields, such as mills or any other property that may
SRC. 2. No inhabitant of said Territory shall have the right to construct any property to the obstruct the course of the water, as the irrigation of the fields should be preferable to all others.
Sec. 3. All by-paths or foot-paths are prohibited across the fields under a penalty of fine or
All owners of tillable lands shall labor on public (acequias) ditches, whether they
fields in the Territory to be
Src. 7: In case a community of people desire to construct a ditch (acequia) in any part of
land upon which said ditch (acequia
) is constructed, in such case no one shall be bound to pay for said land, as all the persons inter ested in the construction of said ditch (acequia) are to be benefited by it.
Sec. 8. The course of ditches (acequias) already established shall not be disturbed.
aceq to al ers i word prop own in se Agge: const and i own ment
SE the into a equa.
SEO with Buch shall the a
SEC Water the
ne p incret
[Act of January 7, 1852.]
SEC. 10. It shall be the duty of the several Justices of the Peace of this Territory to call
Sec. 11. The manner of conducting the election and the number of overseers shall be regulated by the Justice of the Peace of the precinct, and the only persons entitled to vote at said election shall be the owners or renters of lands irrigated by said ditches (acequias).
The pay and other perquisites of the overseers shall be determined by a majority of the owners of the land irrigated by said ditch (acequia.)
Sec. 13. It shall be the duty of the overseers to superintend the repairs and excavations on said ditches (acequias), to apportion the persons or number of laborers furnished by the proprietors, to regulate them according to the quantity of land to be irrigated by each one from said ditch (acequia), to distribute and apportion the water in the proportion to which each one is entitled according to the land cultivated by him, also taking into consideration the nature of the seed, crops, and plants cultivated, and to conduct and carry on said distribution with justice and impartiality.
It shall be the duty of the proprietors to furnish, each one, the number of laborers required by the overseer, at the time and place le may designate, for the purposes mentioned in the foregoing section, and for the time he may deem necessary.'
SEC. 15. If any overseer of any public ditch (acequia), after having undertaken to serve as such, shall willfully neglect or refuse to fulfill the duties required of him by this Act, or conduct himself with impropriety or injustice in his office as overseer, or take any bribe, in money, property, or otherwise, as an inducement to act improperly, or neglect the duties of his office
, he shall be fined, for each of said offenses, in a sum not exceeding ninety dollars, to be recorered before any Justice of the Peace in the county, one half of which sum shall be paid to the county and the other half to the person bringing suit for the same; and on being convicted 8 second time, he may be removed from his office by the Justice of the precinct, on the petition of two thirds of the proprietors of the land irrigated by said ditch (acequia).
Sec. 16. In all cases of removal, as prescribed in the previous section, the Justice of the Peace shall order a new election to fill the vacancy occasioned by said rernoval, which election shall be conducted in the manner prescribed in the third section of this Act.
Sec. 17. If any proprietor of any land irrigated by any such ditch (acequia) shall neglect or
If any person shall in any manner obstruct, interfere with, or disturb any of said
All fines and forfeitures recovered for the use and benefit of any public ditela
this Act, an appeal may be granted to the Probake
Sec. 21. The regulations of ditches (acequias) which have been worked shall reniain as they were made and remain up to this day, and the provisions of this Act shall be in force azie observed from the day of its publication.
Seers : to the the J
SEC receiv suitab mittee Peace consid SON as of suc in cha in
the for each
1 Bame v
| pointes any su Sec.