(c) Waste, Etc., Water. water as escapes from an appropriator's land after he has made all the beneficial use thereof on his land that is possible and which has not found its way into a natural stream. In a recent case (41) the supreme court of Colorado defined what was not waste water. In that case the plaintiff, whose land adjoined defendant's on its lower side, by means of a ditch constructed along the upper side of his land, had for years captured the water that flowed over and across defendant's fields and had used the same in irrigating. Subsequently defendants constructed a ditch along the lower side of their land and captured such water, carrying it around plaintiff's land and used it upon another tract. Plaintiff sought to restrain such action on the ground that she had appropriated the same as waste water. The court said: "Just what constitutes waste water in every instance we do not decide, but it is unquestionably true that so far as concerns the right to make a valid appropriation of it, this water is not waste water so long as it remains upon the lands of the defendants, and does not, in any event, become such until it has escaped and reached the lands of others. The plaintiff certainly has acquired no vested right to compel the defendants to apply the waters, the right to the use of which they own, in such a way as that some of it will not soak into their own ground, but escape and pass from the surface on to her lands." An appropriator of waste water acquires a right only to whatever water flows from the ditch or canal through which the first use is made, after the wants and necessities of the appropriators under such ditch or canal have been supplied, and such appropriation does not carry a right to any specific quantity of water, nor the right to interfere with the water flowing in such ditch or canal, and the appropriators under such ditch or canal are under no obligation to permit any specific quantity of water to be discharged as waste for his benefit. (42) (41) Burkhart v. Meiberg, - Colo., 86 P. 98 ('06). (42) Mabee v. Platte Land Co., 17 Colo. App. 476, 68 P. 1058 ('02); Burkhart v. Meiberg, Colo. 86 P. 98 ('06). When such water, after being used, escapes and returns to the stream or its tributaries, it becomes a part of the water of the stream the same as though it had never been diverted, and inures to the benefit of other appropriators in the order of their appropriations and may be appropriated by a subsequent appropriator. (43) In Colorado ditches constructed for the purpose of utilizing waste, seepage or spring waters are governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams. (44) $37. Surplus and Excess Water. As we shall see later, an appropriator is only entitled to as much water as is sufficient, with reasonable use, to perform the duties for which the appropriation is made. (45) Whenever, therefore, an appropriator makes an appropriation and diversion of more water than is necessary for his purposes, the surplus or excess water over his needs remains as unappropriated water, subject to appropriation and diversion by others. ( 46 ) This principle is now established by statute in most of the states and territories. (47) (d) Artesian Wells. § 38. Artesian Wells-Reward County and Township Construction. As we have seen, the sources from which water is obtained for irrigation are many, (48) and among these is found the artesian well. In some parts of (43) Gassert v. Jones, 18 Mont. 198, 44 P. 959 ('96); Water Supply, etc., Co. v. Larimer & W. Res. Co., 25 Colo. 87, 53 P. 386 ('98); La Jara Creamery & Live Stock Assn. v. Hansen, Colo. -, 83 P. 644 ('05). (44) 1 Mills' Ann. Stat., §2269. (45) Post, $58. (46) Larimer & Weld Irr. Co. v. Wyatt, 23 Colo. 480, 48 P. 528 ('97); Clough v. Wing, 2 Ariz. 371, 17 P. 453 ('88); Hewitt v. Story [Cal.], 64 Fed. 510; Becker v. Marble Cr. Irr. Co., 15 Utah 212, 49 P. 829 ('97); Hague v. Nephi Irr. Co., 16 Utah 421, 52 P. 765 ('98); (47) Post, $$48-53. (48) (d) Artesian Wells. § 38, Artesian Wells-Reward-County and Township Construction. the arid and semi-arid regions, where surface-water supplies are deficient, water, if procured at all, must be brought from the ground. (49) The territory of Colorado was among the first, if not the first, to recognize the importance of this fact. By the act of 1870, (50) the governor and judges of the supreme court constituted a board to supervise artesian-well boring on the plains, and provision was made for the payment of a reward of $2,000 for the first successful well. This act never brought any practical results, but it has never been repealed. The quare naturally arises, however, if there were really any present attempt to make the act available whether or not it is not void for imposing upon judges a non-judicial duty. In the act commonly called the "Reclamation Act," (51) the secretary of the interior is "authorized and directed to make examinations and surveys for and to locate and construct * * * irrigation works for the storage, diversion and development of waters, including artesian wells." The state of Kansas, by the act of 1895, (52) provided that the board of irrigation thereby created, should test the water supply of the uplands of the western part of the state, by sinking twenty or more artesian wells, not more than one in each county. South Dakota, by the act of 1893, (53) provided that whenever fifty resident freeholders of any county should petition the engineer of irrigation for the location and establishment of an artesian well, it should be the duty of the engineer to make an investigation into the advisability of such well, and if advisable, he should locate the well at some point where it would render the greatest benefits to the lands which it would affect, and he should file a report with the county auditor of the county, giving the location of the well and an estimate of its probable cost. A board of viewers was then to be appointed by the county auditor to examine the loca (49) (50) (51) (52) Reclamation Service 2nd Ann. Rep. 1902-3, p. 25. A. C., June 17, '02, §2; see post, §178a. (53) Rev. Code '03, $82648 et seq. tion of the well, make maps and estimate the damage, if any, to lands in its vicinity. The report of this board was to be passed upon by the county commissioners, who were given power to hear evidence upon the question of damages, and to change the amount fixed by the viewers. An appeal could be taken from the decision of the commissioners to the circuit court. When the amount of damages, etc., was finally fixed, the commissioners were then required to call a special election, at which the electors of the county were to vote upon the question, "Shall the county commissioners issue artesian-well warrants for sinking a well at the place mentioned in the notice of election?" If the vote was in the affirmative the commissioners proceeded by calling for bids to sink the well, and could acquire by purchase, condemnation or gift, the land upon which such well would be sunk. The cost of the well, and the artesian-well warrants issued therefor, were to be paid by a special tax levied upon the lands benefited by the well as shown by the report of the board of viewers. By the act of 1891, amended in 1895, (54) provision was made for the sinking of artesian wells by civil townships and the issuance of bonds therefor. The procedure is similar to that for sinking such wells by the county. Provision is made for the collection of water rents to pay the interest on the bonds, and special taxes upon the property within such civil township to discharge the principal and any deficiency of interest. These South Dakota acts are much of the same nature as the "Wright Act," (55) although the steps to be taken to secure the results are somewhat different. They illustrate the growth of state control and state assistance, and the manner in which that assistance can be given even where there is no surface supply. (54) Rev. Code So. Dak. '05, §§2680 et seq. (a) In General. § 39, Appropriation Defined. CHAPTER 6. WHAT CONSTITUTES AN APPROPRIATION. (a) In General. § 39. Appropriation Defined. The term "appropriation," as used in the arid and semi-arid states and territories, has been defined and applied in many cases. A definition that seems to cover every application of the word, as affecting the use of water, was given in the case of Larimer County Res. Co. v. People ex rel. Luthe, (56) where it is said: "Appropriation is the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use." A mere diversion of the water from a stream does not constitute an appropriation. Besides the intent, which naturally precedes any definite action, the appropriation consists of two things, diversion and application to beneficial use, and in case of irrigation the water must be applied to the land to make the appropriation complete. (57) In California and those states following the "California System," an appropriation is treated as a grant from the federal government. Being the owner of the land, the government is also the owner of the waters passing over or past the land. It could (56) 8 Colo. 614, 9 P. 794 ('85). See, also, Ft. Morgan L. & C. Co. v. So. Platte D. Co., 18 Colo. 1, 30 P. 1032 ('92); Tanghenbaugh v. Clark, 6 Colo. App. 235, 40 P. 153 ('95); McDonald v. Bear River Co., 13 Cal. 220 ('59); Clough v. Wing, 2 Ariz. 371, 17 P. 453 ('88); Moyer v. Preston, 6 Wyo. 308, 44 P. 845 ('96); Nevada D. Co. v. Bennett, 30 Ore. 59, 45 P. 472 ('96); Hague v. Nephi Irr. Co., 16 Utah 421, 52 P. 765 ('98); Albuquerque, etc., Co. v. Guiterrez, 10 N. M. 177, 61 P. 357 ('00); Millheiser v. Long, 10 N. M. 99, 61 P. 111 ('00); Guiterrez v. Albuquerque, etc., Co., 23 Sup. Ct. 338, 188 U. S. 545 ('03). (57) Farmers' Ind. D. Co. v. Agricultural D. Co., 22 Colo. 513, 45 P. 444 ('96). See, also, Cash v. Thornton, 3 Colo. App. 475, 34 P. 268 ('93). |