DISTRIBUTION. distribution of the water of a stream, to all having cultivable lands under any of its ditches, regardless of priorities, might greatly enhance the benefits to be derived from the use of the water, still, such equitable distribution is impossible where the respective rights depend as they do upon dates of appropriation. (55) By statute in Wyoming it is provided that when the consumers who obtain their supply of water through a partnership ditch are unable to agree on the distribution of the water flowing in the ditch, any one of them may apply to the district court for the appointment of a suitable person to make the distribution, and that the decision of the court, judge, or court commissioner shall be final. (56) This statute was amended, (57) so as to make such decision final unless an appeal is taken to the district court. In construing this section and the amendment, the supreme court held that the decision of the district court was final and no appeal to the supreme court would lie. (58) (b) Pro-rating and Rotation. § 86. Pro-rating Principally in Colorado. By 1 Mills' Ann. Stat., §2267, it is provided that the water actually received into and carried by any irrigating ditch, canal or reservoir, to the consumers therefrom, may be pro-rated among all such consumers in time of scarcity. In 1889 this statute was discussed by the supreme court justices in the case of the Farmers' Highline Canal Co. v. Southworth. (59) The case came to the supreme court from the decision of the trial court in overruling a demurrer to the complaint. Each of the three justices filed a separate opinion, agreeing in a reversal of the case, but reaching this conclusion by distinctly different lines of reasoning. Hayt, J., expressed the view that the only (55) Larimer and Weld Res. Co. v. Cache La Poudre Irr. Co., 8 Colo. App. 237, 45 P. 525 ('96). (56) Rev. St. 1899, $910; post, ch. 49. (57) Sess. L. 1903, p. 122, ch. 93; post, ch. 49. (58) (59) 13 Colo. 111, 21 P. 1028 ('89). § 86, Pro-rating Principally in Colorado. question presented was the sufficiency of the allegation as to the priority of the plaintiff over the other consumers through the same ditch, and held that the complaint stated a legal conclusion and the demurrer should have been sustained. Helm, J., said that under the pleadings the question presented was: "Does the 'priority of appropriation,' which by virtue of the constitution gives the better right, apply to individual consumers taking water through the agency of a carrier, so that, notwithstanding the prorating statute, each consumer acquires a separate constitutional priority of right, entitled to judicial enforcement, dating from the beginning of his specific use?" case This justice reached the conclusion that consumers taking water from the same carrier within a reasonable time after the carrier's diversion have the same constitutional priority dating from such diversion, and as to such consumers the pro-rating statute is constitutional. Elliott, J., who tried the below, and who joined in a reversal of his own nisiprius decision, in an elaborate opinion, held that as between those using the water of natural streams for the same beneficial purpose, priority of use gives superiority of right, irrespective of the mode of diversion; and this rule is applicable to individual consumers, as between themselves, when they receive the water through the agency of an artificial stream as well as when they receive the same direct from the natural stream, and therefore the pro-rating statute of 1879 must be limited accordingly. This latter opinion is perhaps accepted as the law upon this question in Colorado. This case is cited by Hayt, J., in the case of Larimer & Weld Irr. Co. v. Wyatt, (60) as holding that in times of scarcity of water the pro-rating statute (61) may be resorted to to compel the pro-rating of water among consumers having priorities of the same, or nearly the same, date. This statute reaches all consumers and co-consumers who have secured priorities by carrier or community ditches (60) 23 Coio. 480, 48 P. 528 ('97). (61) Supra, this section. DISTRIBUTION. and does not conflict with the provisions of the constitution prohibiting class legislation. (62) The consolidation of two canals or ditches having priorities of different dates, in the absence of an agreement to that effect, does not operate to place the rights of the consumers of the old canals or ditches upon an equality; (63) nor does a subsequent enlargement of a ditch or canal entitle those who acquire rights under such enlargement, to pro-rate with those whose rights were secured under the original ditch or canal. (64) § 87. Rotation. The system of pro-rating, as provided by statute in Colorado, (65) has not been regarded as a marked success by those whose position has required them to apply it. During the usual low-water period, the average crop needs a thorough irrigation, as much if not more than at any other period. By pro-rating the water, each consumer is given a certain percentage of his regular flow, which in many instances is too small to be of any material benefit to the crop, and frequently supplies scarcely more water than is needed for domestic use. Experience has proven that a crop well irrigated will prosper and grow without further irrigation for not less than ten or fifteen days; that the appropriator, if given a full supply of water, can usually irrigate his entire crop in from three to five days of the usual twenty-four hours each. It has been found, therefore, where tried, that by rotation, i. e., giving a full head of water to as many ditches as the stream would supply, or if on a private canal or ditch, to as many consumers or co-consumers as the main canal would supply, for not to exceed five days, and then passing on the full supply to the next group, would make the water do far greater (62) Helm, J., in Farmers' Highline C. & R. Co. v. Southworth, 13 Colo. 111, at pp. 121, 122, 21 P. 1028 ('89). (63) Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 ('93). (64) Brown v. Farmers' Highline C. & R. Co., 26 Colo. 66, 56 P. 183 ('99). As to parties in actions to restrain pro-rating, see post, 151. (65) Ante, $86. For rotation under the Roman law, see ante, §§3, 4. Rotation is also mentioned, supra, §29. § 87, Rotation. service and produce more and better crops than under the system of pro-rating. The success already achieved from rotation augurs well for the future, and appropriators frequently see in a full head something even better than a priority. In the early days, as we have seen, (66) but little if any check was placed upon appropriators, and, diversions of water were frequently made far in excess of the need, and were later given a decreed priority by the courts. These excessive priorities generally leave room for litigation when the water commissioner undertakes to lessen the diversion. The question of the appropriator's needs, as we mentioned above, (67) is often in his discretionary keeping, and as this question is one of fact dependent upon many circumstances, differing in each case, it is sometimes difficult for a court, within the short period of time when the flow is at its lowest, to reach a trial and conclusion of the case. These and other vexations have led the later appropriators of water to study with deep interest the system of rotation, and they have awakened, too, an interest in the early appropriators who keenly appreciate the advantage of a "full head" of water at definite intervals and are willing to make concessions to get it. With "priority" men and late comers thus attracted to the new system, and reinforced by the veritable boom that is now on in building reservoirs, who knows but "rotation" will ultimately become the favorite and universal irrigation system of the arid West. (68) In the recent case of Anderson v. Bassman, (69) the United States circuit court for the northern district of California entered a decree applying the system of rotation, by restraining the defendants from diverting the waters in excess of five days in every ten days during the months of June, July, August, September and October of each year. (66) Ante, §58. (67) Supra, this section. (68) This question is discussed and a number of instances where rotation has been successfully tried are cited in Bulletin No. 86, U. S. Dept. Agriculture, pp. 116, 119, 188, 201, 237. (69) 140 Fed. 14, 29 ('05). DISTRIBUTION. § 88. CHAPTER 14. MEASUREMENT OF WATER. Difficulties of the Subject. The measurement of water is one of the most complicated subjects. Modern science has not yet satisfactorily solved the problem. Under some conditions present methods give accurate results; but the conditions surrounding the measurement must be exact and allow of but little variation. It is not the object of this chapter to go into detail as to the reasons for errors and inaccuracies, but merely to mention some of the most approved methods of the measurement of water. § 89. Units of Measurement. GALLON.-The standard U. S. gallon contains 231 cubic inches. There are 7.4805 gallons in a cubic foot. This unit is generally used to give the supply furnished cities, boiler plants, and in the unwatering of mines and the discharge of tunnels. CUBIC FOOT.-The cubic foot is the amount of substance or fluid contained in a cube of one foot dimensions. One cubic foot of water weighs 62.408 lbs. at 50 degrees Fahr. This unit, or the acre-foot, is used to give the capacity of reservoirs. CUBIC FOOT PER SECOND-By the term "cubic foot per second," as applied to flowing water, is meant a cubic foot of water passing a given point every second of time. A "cubic foot per second" is often designated as a "second foot." This term is used to express the discharge of ditches, canals and rivers, and of all natural streams of running water. ACRE-FOOT.—An acre-foot of water is the amount of water that will cover one acre of land one foot deep. It is equal to 43,560 cubic feet.* One cubic foot per second flowing for twenty-four hours would amount to 86,400 cubic feet. This is nearly two acre-feet. There are 87,120 cubic feet in two acre-feet. The term "acre-foot" is used to give the *An English or U. S. acre 43,560 sq. ft. |