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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 is not in arrears.
Section 3555 should be amended so as to limit the amount of 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 $40 to $128 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, according to the decision of the Supreme Court. The service being rendered, the bill must be paid, as the law now stands. The law of 1861 referred to, fixed the cost of each annulment at $32, and cer 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.
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.
In my last report I referred to the necessity of greater interest being taken in timber 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.
I would invite your attention to the law of Congress, approved September 4, 1841, relating to the appropriation of the proceeds of the sales of public lands, etc. This Act named the eight States in which public lands were then for sale, giving said States ten per cent of the net proceeds, and making provision for the distribution of five per cent among certain new States and Territories. But this law did not contemplate a division among other than the twenty-six States and the Territories then existing. No good reason can be shown why California should be excluded from this distribution, for it is a public land State, and has contributed largely to the fund to be distributed among other States. It was evidently an oversight in not putting California upon an equal footing with other States in this matter when she came into the Union. My predecessor, William of Minis, taking the same view of the matter that I do, appointed Captain John Mullan as an agent of the State to aid in procuring Congressional 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 in connection with the other States. Captain Mullan has constantly kept this office informed of what he has been doing in the matter.
But it is necessary to stop the wasteful destruction of the growing timber, 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 using their application as a shield to protect them while they are removing the timber from the land, intending to abandon it when it has been despoiled of its timber, which is its real value.
It is true that the law of April 27, 1863, on this subject, is still in 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 enforcement would entail upon them a loss of time and money? The law is as follows:
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 State.
[Approved March 27, 1863.]
SECTION 1. Any person or persons who shall cut down any timber growing or standing upon
SEC. 2. All fines collected under the provisions of this Act shall be paid into the County
THE FIVE PER CENT FUND.
In view of the fact that much of the land in California, though excellent in quality, is practically worthless for agricultural pur poses, because of the small amount of rainfall, and the long period in the Summer in which there is no rainfall, it becomes a question of vital interest to the State, how to meet this want of water requi site for agriculture, and provide, as far as possible, for the future growth of the State in the rural districts.
There is but one way to accomplish this, viz.: By a system of irri. gation comprehensive enough to save and utilize the surplus waters of the State which find their way into the rivers and thence into the sea, and by prohibiting waste in the use of water.
To accomplish all this it is evident that to allow the control of the water sources of the State to pass into the hands of private individ uals or of corporations, as it is now claimed they have, or to allow their control so to continue, no general system can be provided. The future of the State would practically be limited by the present use of these waters. Provision could not be made for sustaining an increase of population.
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 nuinber 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 appropri ated 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:
An Act creating a Board of Commissioners and the office of Overseer in each township of the several counties of this State, to regulate watercourses within their respective limits.
[Passed May 15, 1854.]
The People of the State of California, represented in Senate and Assembly, do enact as follows: SECTION 1. There shall be in each township of the Counties of San Diego, San Bernardino, Santa Barbara, Napa, Los Angeles, Solano, Contra Costa, Colusa, Tulare, a Board of Commis sioners to regulate watercourses, to consist of three members, and also an Overseer, to be elected as hereafter provided.
SEC. 2. Upon a petition of a majority of the voters of any township in said counties, County Judge shall thereupon order an election, of which ten days notice shall be given by at least three notices, posted up at the most public places in such township, for the election of three Commissioners and an Overseer, who shall hold their office for one year. The County Judge shall, for the purpose of holding said election, appoint one Inspector and two Judges, whose duty it shall be to see that said elections are conducted in accordance with the laws regulating elections, sum up the votes, and declare the result.
SEC. 3. The duties of the Commissioners shall be to examine and direct such watercourses, and apportion the water thereof among the inhabitants of their district, determine the time of
using the same, and upon petition of a majority of the persons liable to work upon ditches, lay out and construct ditches, as set forth in such petitions.
SEC. 4. The duties of the Overseer shall be to execute the orders of the Commissioners, to
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 shall any person or persons be compelled to work or expend money on any ditch or ditches who does not use the water thereof.
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 sum 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.
SEC. 7. 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.
SEC. 9. Where water rises on land owned by any person, it shall not be subject to the provisions of this Act, 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.
SEC. 15. Any person or persons who, under this Act, shall conduct water by ditch or otherwise, across the lands of any person or persons, shall pay to such person or persons owning such [E lands, such compensation as can he agreed upon by the parties owning the lands; and in case
[Act of July 20, 1851.]
SECTION 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 they can, with the distinct understanding, to pay the owner through whose land said acequias have to pass, a just compensation taxed for the land used. If the owner or owners of lands where a new ditch for an acequia is to be made, should ask an exorbitant price as a compensation 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 it may occur, to appoint three skillful ge men of well known honesty, to make an appraisement thereof and fix the compensation, Which once done, shall be executory and without appeal from the judges trying the case. [1874, ch. 10.]
BRO. 2. No inhabitant of said Territory shall have the right to construct any property to the impediment of the irrigation of lands or fields, such as mills or any other property that may obstruct the course of the water, as the irrigation of the fields should be preferable to all others.
SEC. 11. 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.
SEC. 12. 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.
SEC. 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 such stream.
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 ditching 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.
SEC. 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 all lands appertaining or belonging to their respective cities, and shall have power to regulate the water privileges therein.
GENERAL LAWS OF NEW MEXICO-ARTICLE I, CHAPTER I.
SEC. 3. All by-paths or foot-paths are prohibited across the fields under a penalty of fine punishment.
SEC. 4. All owners of tillable lands shall labor on public (acequias) ditches, whether they
cultivate the land or not.
SEC. 5. All persons interested in a common ditch (acequia), be they owners or lessees, shall labor thereon in proportion to their land.
It being impracticable or absolutely impossible for the fields in the Territory to be fenced in, all animals shall be kept under a shepherd, so that no injury may result to the fields; and in case any damages should result, they shall be paid by the persons causing it.
SEC. 7. In case a community of people desire to construct a ditch (acequia) in any part of the Territory, and the constructors are the owners of all the 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.
[Act of January 7, 1852.]
SEC. 9. All rivers and streams of water in this Territory, formerly known as public ditches, (acequias) are hereby established and declared to be public ditches (acequias.)
SEC. 10. It shall be the duty of the several Justices of the Peace of this Territory to call together, in their respective precincts, whenever it may be deemed convenient, all the owners of ditches (acequias), as well as the proprietors of lands irrigated by any public ditch (acequia), for the purpose of electing one or more overseers for said ditches (acequias) for the same year.
SEC. 11. The manner of conducting the election and the number of overseers shall be regu lated 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).
SEC. 12. 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 proprie tors, 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.
SEC. 14. 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 he 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 recov ered 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 a 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 removal, 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 refuse to furnish the number of laborers required by the overseer, as prescribed in section six of this Act, after having been legally notified by the overseer, he shall be fined for each offense in a sum not exceeding ten dollars, for the benefit of said ditch (acequia), which shall be recov ered by the overseer before any Justice of the Peace in the county, and in such cases the overseer may be a competent witness to prove the offense, or any fact that may serve to constitute
SEC. 18. If any person shall in any manner obstruct, interfere with, or disturb any of said (acequias) ditches, or use the water from it without the consent of the overseer, during time of cultivation, he shall pay for each offense a snm not exceeding ten dollars, which shall be recovered in the manner prescribed in the foregoing section, for the benefit of said ditch (acequia), and shall further pay all damages that may have accrued to the injured parties; and if said person or persons have not wherewith to pay said fine and damages, they shall be sentenced to fifteen days labor on public works.
SEC. 19. All fines and forfeitures recovered for the use and benefit of any public diteb (acequia) shall be applied by the overseer to the improvements, excavation, and bridges for the same, wherever it may be crossed by any public road where bridges may be necessary. SEC. 20. In all cases of conviction under this Act, an appeal may be granted to the Probate Court, which appeal shall be taken and conducted as all other appeals from the decisions of
Justices of the Peace.
SEC. 21. The regulations of ditches (acequias) which have been worked shall remain as they were made and remain up to this day, and the provisions of this Act shall be in force and observed from the day of its publication.