§ 82, Water Districts. neer. (27) In Wyoming the state board of control creates the "water districts" as necessity arises. (28) In Washington each county is by statute made an irrigation district. (29) § 83. Water Commissioners-Masters-Supervisors— Under Assistants. Each water district is provided with an officer indifferently styled, "water commissioner," (30) "water master," (31) "under assistant," (32) and "supervisor." (33) These officers are all appointed either by the governor or some of the irrigation officers. (34) The district officer has, subject to the direction of the superintendent or engineer of the division, charge of the regulation of the respective headgates and the distribution of the water within his district, in accordance with the priorities of the various ditches or canals, and "in whole or in part to shut and fasten, or cause to be shut and fastened, by order given to any sworn assistant, sheriff or constable of the county in which the head of such ditch is situated, the headgates of any ditch or ditches heading in any of the natural streams of the district, which in time of scarcity of water shall not be entitled to water by reason of the priority of rights of others below them on the same stream." (35) These officers are empowered and required "upon the application of the owners of one or more ditches in their district, to immediately make, or cause to be made, a thorough examination of all ditches within their district for the purpose of ascertaining what use is (27) Utah Laws '05, ch. 108, p. 154, §26; Oklahoma Sess. L. '05, p. 290, $32; North Dakota Rev. Code, '05, §7645. (28) Rev. Stats. '99, §888. (29) Pierce's Code '05, §5840. (30) California-By statute water commissioners were appointed in a few counties, Stat. of 1854, p. 76, amended 1862, p. 234. Colorado-1 Mills' Ann. Stat., §§2384-2392. NevadaStat. '01, p. 72. Wyoming-Rev. Stat. '99, §§888-889. (31) Idaho Sess. L. '03, p. 240, §§23-24. OklahomaSess. L. '05, p. 290, §33. North Dakota-Rev. Codes '05, §7646. (32) Nebraska-Comp. L. '05, §§6442-6444. (33) Utah Laws '05, ch. 108, p. 154, §26 et seq. See statutes referred to in preceding notes. 1 Mills' Ann. Stat., §2384, post, Part X, ch. 35. DISTRIBUTION. being made by the owner or owners of, or consumers of water from, said ditches; and if at any time he shall ascertain that the owner or owners of any ditch drawing water from the natural streams furnishing water to his district shall be permitting any of the waters flowing in such ditch to go to waste, or to be wastefully or extravagantly or wrongfully used by its water consumers, or put to any other use than that to which it is entitled to be used in the order of priority, at such times as the same is being needed by other appropriators, it shall be the duty of such water commissioner to immediately shut off the supply of water in such ditch to such an extent as in his judgment was wasted or extravagantly, wastefully or wrongfully used." (36) In most of the states and territories the district officer shall not begin his work until called in writing by two or more owners or managers or persons controlling ditches in his particular district, stating that there is a necessity for his action. (37) In many of the states and territories these officers are vested with the power of constables, and may arrest persons violating their orders. (38) They are in the nature of water police, whose duty it is to protect the rights of appropriators, and to see that the law relating to the diversion of water is impartially enforced. They should be equipped with the knowledge and ability which will enable them to measure with reasonable accuracy the flow of water in ditches and streams. Rules for such measurements are given in another part of this work. (39) District officers are paid by the counties in which their respective districts are situated, such sum per diem as is fixed by statute (40) In this section the quotations have been made from the Colorado statutes, as that state appears to furnished the model upon this particular have (36) (37) (39) (40) 3 Mills' Ann. Stat. (2d ed.), §2384a. 1 Mills' Ann. Stat., §2292. See statutes, post, Part X. (38) Statutes, states and territories, post, Part X. Post, $888-92. Statutes, states and territories, post, Part X; Board of County Com. v. Locke, 2 Colo. App. 508, 31 P. 351 ('92); Board of County Com. v. Gould, 6 Colo. App. 44, 39 P. 895 ('95). § 83, Water Commissioners-Masters-Supervisors-Under Assistants. The feature for the other states and territories. duties of these officers in all jurisdictions are very similar, and it is unnecessary at this place to repeat the statutes of each commonwealth. (41 ) CHAPTER 12. POLICE POWER. § 84. Police Power as to Water Rights. By the constitution or statutes of many of the states and territories the water of the natural streams within the state is declared to be the property of the people or the public, (42) and by statutes or decisions in all of the states the use of water for irrigation is deemed a public use. (43) It would naturally follow, therefore, that the use of water must be subject to the control of the state, and as we have seen, all of the arid and semi-arid states and territories have enacted statutes, and some elaborate codes, providing for the regulation and control of the appropriation and distribution of water for beneficial uses, and particularly for irrigation. In the case of the Farmers' Highline Canal & Res. Co. v. Southworth, (44) Mr. Justice Elliott said: "The authority of the general assembly to enact laws regulating the distribution of water to actual appropriators, providing they do not substantially affect constitutional or vested rights, is undoubted. While the legislature cannot prohibit the appropriation or diversion of unappropriated water, for useful purposes, from natural streams upon the public domain, it has the power to regulate the manner of effecting such appropriation or diversion by reasonable and constitutional legislation." (45) (41) Post, Part X. (42) (43) Const. and statutes, post, Part X. (44) 13 Colo. 111, 137, 21 P. 1028 ('89). (45) See Larimer Co. Res. Co. v. People, 8 Colo. 614, 9 P. 794 ('85); White v. Farmers' Highline C. & R. Co., 22 Colo. 191, 43 P. 1028 ('96); U. S. Freehold L. & E. Co. v. Gallegos, 1 Leg. Adv. 412 ('98). DISTRIBUTION. Accordingly, it is held that the determination of priorities by adjudication proceedings is incidental to a proper regulation of the use of water, and to secure the orderly distribution of the water to the various appropriators. (46) We have in the preceding sections examined the methods provided for exercising this right of state control. In several of the states the statutes have been attacked upon the ground of unconstitutionality, as a taking of property without due process of law, and also as conferring judicial powers upon officers and boards not designated as judicial by the constitution. Such adjudication acts have been held constitutional as to both objections. (47) In the states following the Colorado method of adjudication and distribution the division superintendents and the water commissioners are governed in their distribution of the water by decrees of the courts. They are clothed with no judicial or discretionary power except to prevent waste, (48) and the courts are always open to restrain such officers from performing their duties in a manner not contemplated by law. (49) In the states following the Wyoming method, these officers make their distribution of the water according to the decrees of the board of control. The constitutionality of the act providing for adjudication by the board has been attacked in both Wyoming and Nebraska. These cases are discussed under another title in this work. (50) They sustain the right of the board to adjudicate the priority of right of the various appropriators as a quasi-judicial function, and in Wyoming it is held that the police power of the state to control and regulate the use of the water of natural streams (46) Cases cited in notes 44, 45. 8 Colo. 144, 6 P. 142 ('84). Golden Canal Co. v. Bright, (47) Farmers' Ind. D. Co. v. Agricultural D. Co., 22 Colo. 513, 45 P. 444 ('96); Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258 ('00); Farmers' Irr. Dist. v. Frank, Neb. 100 N. W. 286 ('04). (48) Post, §85. (49) Post, $$150-153. (50) Cases cited in note 47. Post, $$143-146. § 84, Police Power as to Water Rights. applies to those whose rights accrued prior to the adoption of the constitution as well as to those who have acquired their right since that time. (51) CHAPTER 13. DISTRIBUTION. (a) In General. § 85. Distribution According to Decrees. As we have seen, (52) the states and territories in the exercise of the police power and to secure an orderly and peaceful distribution of the waters, have assumed the entire control of the distribution, and have provided officers whose duty it is, in this respect, to enforce the laws of the state, the decrees of the courts and the adjudicating boards. The officers are governed entirely by the court or board records, both as to the amount of water to which an appropriator is entitled and as to the order in which he shall be served. By the priority system, the biblical saying, "the last shall be first," is applied during the periods when there is not enough water for all, by shutting off the last appropriator's supply first, (53) and by means of headgates or measuring flumes or boxes, delivering to the others, in the order of their priority, the amount of water which the record shows them entitled to. The statutes of all the arid and semi-arid states and territories aim at an economical and beneficial use of the water, without waste, and therefore confer upon the division and district officers certain discretionary powers, in determining when an appropriator's needs have been amply supplied, and whether or not he is making a beneficial use of the water, and if not, then in empowering such officers to shut off the supply. (54) While an equitable (51) Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258 ('00). (52) Supra, §§79, 80. (53) Larimer Res. Co. v. Water Sup. & Storage Co., 7 Colo. App. 225, 42 P. 1020 ('95). (54) Statutes, states and territories, post, Part X. |