IRRIGATION AND RECLAMATION OF ARID LANDS. UTAH DIVISION. SALT LAKE CITY, UTAH, August 19, 1889. The committee met pursuant to the call of the chairman. Present: Messrs. Stewart (chairman), Plumb, Jones, and Reagan; also Director Powell. STATEMENT OF A. L. THOMAS, GOVERNOR OF UTAH. MR. CHAIRMAN AND GENTLEMEN: I have here some laws on the subject of irrigation in this Territory. The first is that contained in the compiled laws in regard to the organization of irrigation companies. Then there is a law in the session laws of 1878, amending that to some extent. Then we have a law passed in 1880, providing for the recording of vested rights and the use of water. To-morrow I shall file a statement respecting this latter law. And I would say that the courts have adjudged some of them unconstitutional. The laws referred to are as follows: WATER RIGHTS. SEC. 422. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts. the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. SEC. 423. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water right, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. SEC. 424. The right to the use of water for the reclamation of desert lands, in accordance with the provisions of an act approved March third, eighteen hundred and seventy-seven, shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights. SEC. 425. All navigable rivers, within the Territory occupied by the public lands, shall remain and be deemed public highways; and in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both. SEC. 2775. s 1. The selectmen of the several counties of this Territory are hereby created ex-officio water commissioners for their respective counties, whose powers and duties shall be to make, or cause to be made and recorded, such observations, from time to time, as they may deem necessary, of the quantity and flow of water in the natural sources of supply, and to determine, as near as may be, the average flow thereof at any season of the year, and to receive, hear, and determine all claims to the use of water, and on the receipt of satisfactory proof of any right to the use of water having vested, to issue to the person owning such right a certificate therefor for recording, and to generally oversee, in person, or by agents appointed by them, the distribution of water within their respective counties, from natural sources of supply, to all the corporations or persons having joint rights in and to any natural source of supply, and to fairly distribute, according to the nature and extent of recorded rights, and according to law, to each of said corporations or persons their several portions of such water; and in case of dispute between any of such persons or corporations as to the nature or extent of their rights to the use of water or right of way, or damages therefor, of any one or more of such persons or corporations, to hear and decide upon all such disputed rights, and to file a copy of their findings and decisions as to such rights with the county recorder, and to distribute the water according to such findings or decision, unless otherwise ordered by a court of competent jurisdiction. SEC. 2776. s 2. In cases where persons, or corporations, use water in different counties from the same natural source of supply, the water commissioners of each of said counties shall unite in appointing, either from among their number or otherwise, as they may determine, a board of reference of not less than three competent persors, to hear and decide all disputes in regard to water rights in and to such natural source of supply, and they shall file a copy of their decision with the county recorders of each of said counties; said water commissioners and members of the board of reference shall each, respectively, have power to administer oaths, and if any person who may be duly sworn in any matter in relation to the nature, extent, or exercise of any right or duty under any of the provisions of this act, shall falsely swear, such person shall be deemed guilty of perjury. SEC. 2777. 83. The certificate of the water commissioners shall state generally the nature and extent of the right to use water of the person, or corporation, to whom it is issued, and must be filed with the county recorder for recording. SEC. 2778. 8 4. It shall be the duty of the county recorder of each county, upon any certificate of water commissioners being filed in his office, as prescribed by this act, and upon any findings or decisions of any commissioners, or board of reference, as to the extent of any such rights, and upon payment of the fees allowed by law for such service, to record, in a book, or books, to be kept by him for such purposes, all such certificates, findings, and decisions, which said record shall be deemed to impart notice to all persons whomsoever of the contents thereof, and shall be prima facie evidence of the existence and verity of the facts therein recited. SEC. 2779. s 5. No person, or corporation, shall maintain any suit, at law or in equity, for the determination of the existence or extent of any right, or rights, to the use of water in this Territory, until after the decision of the proper county commissioners, or of the proper board of reference, as the case may be, unless said commissioners, or board, shall fail and neglect to hear and decide such person's claim of right to use of water for more than three months after such person may have presented, in writing, his claim, or claims, and evidence in support thereof, for adjudication: Provided, This section shall not be construed to affect or impair the authority or jurisdiction of any court in the issuance of a temporary injunction or restraining order in such cases, or to abridge the right of any person aggrieved by any such decision to maintain any lawful suit, or appeal, after such decision may have been made. SEC. 2780. s 6. A right to the use of water for any useful purposes, such as for domestic purposes, irrigating lands, propelling machinery, washing and sluicing ores, and other like purposes, is hereby recognized and acknowledged to have vested and accrued, as a primary right, to the extent of, and reasonable necessity for such use thereof, under any of the following circumstances: 1. Whenever any person or persons shall have taken, diverted and used any of the unappropriated water of any natural stream, water-course, lake, or spring, or other natural source of supply. 2. Whenever any person or persons shall have had the open, peaceable, uninterrupted, and continuous use of water for a period of seven years. SEC. 2781. 87. A secondary right to the use of water for any of said purposes is hereby recognized and acknowledged to have vested and accrued (subject to the perfect and complete use of all preliminary rights) to the extent of and reasonable necessity for such use thereof, under any of the following circumstances: 1. Whenever the whole of the waters of any natural stream, water-course, lake, spring, or other natural source of supply has been taken, diverted, and used by prior LEGAL RIGHTS OF WATER USERS AND IRRIGATORS. 7 appropriators for a part, or parts, of each year only; and other persons have subsequently appropriated any part, or the whole, of such water during any other part of such year, such person shall be deemed to have acquired a secondary right. 2. Whenever, at the time of an unusual increase of water exceeding seven years average flow of such water, at the same season of each year, all the water of such average flow then being used by prior appropriators, and other persons appropriate and use such increase of water, such persons shall be deemed to have acquired a secondary right. SEC. 2782. s 8. A right to the use of water may be measured by fractional parts of the whole source of supply, or by such fractional parts, with a limitation as to periods of time when used, or intended to be used; or it may be measured by cubic inches with a limitation as to periods of time when used or intended to be used; or it may be measured by cnbic inches with a limitation specifying the depth, width and declination of the water at point of measurement, and, if necessary, with a further limitation as to periods of time when used, or intended to be used, and such right may be appurtenant to the land upon which such water is used, or it may be personal property, at the option of the rightful owner of such right, and a change of the place of use of water shall in no manner affect the validity of any person's right to use water, but no person shall change the place of use of water, to the damage of his co-owners in such right, without just compensation. SEC. 2783. 89. A continuous neglect to keep in repair any means of diverting or conveying water, or a continuous failure to use any right to water, for a period of seven years at any time after the passage of this act, shall be held to be abandonment and forfeiture of such right, and whenever hereafter a conveyance of any parcel of land is executed, and a right to the use of water has been continuously exercised from the time of its first appropriation, in irrigating such land, such right shall pass to the grantee of such conveyance; and in cases where such right has been exercised in irrigating different parcels of land at different times, such right shall pass to the grantee of any parcel of land on which such right was exercised next preceding the time of the execution of any conveyance thereof; subject, however, in all cases, to payment by the grantee of any such conveyance, of all amounts unpaid on any assessment then due upon any such right: Provided, That in any of the cases mentioned in this section, any such right to the use of water, or any part thereof, may be reserved by the grantor of any such conveyance, by making such reservation in express terms inserted in such conveyance. SEC. 2784. s 10. All rights to the use of water, and means of diverting water, shall be exempt from taxation, except for the purpose of regulating the use of the exercise of such right in all cases where the land or other property upon which the pertaining to such rights is assessable for taxation, but in making the assessment the assessor shall estimate the increased value of such land or other property, caused by the use of such water. SEC. 2785. s 11. It shall be the duty of all persons using water from any natural source of supply to provide suitable ditches for conveying surplus water again into the natural channel, or other places of use, to the satisfaction or approval of the water commissioners; and if, through neglect so to provide such ditches, water is allowed to form pools or marshes, or otherwise run to waste, and if any person shall turn or use any water in a manner that damages the property of another, except when such turning or using in the prudent, careful exercise of such person's lawful right to so turn or use, such person or persons so offending shall be liable for damages to any aggrieved person entitled to the use of water from the same source of supply, and the water commissioners may, on application, or of their own motion, cause the water supply to be diverted from such offending party until such waste ditches are provided. SEC. 2786. s 12. Whenever the terms mentioned in this section are employed in this act, they are employed in the sense hereinafter affixed to them, except when a different sense plainly appears; "joint 1. The term "person," when applicable, includes "firm," "partnership," "; stock company, """association" and "corporation." 2. Words in the singular number may include the plural, and words in the masculine may include the feminine. 3. The term "continuous use" includes use for that part of each year necessary for the purpose used for. SEC. 2787. 8 14. Whenever the waters of any natural source of supply are uot sufficient for the service of all those having primary rights to the use of the same, such water shall be distributed to each owner of such right in proportion to its extent, but those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for irrigating lands shall have preference over those using the same for any other purpose, except domestic purposes: Provided, such preference shall not be exercised to the injury of any vested right, without just compensation for such injury. SEC. 2788. 8s 15. All persons shall have the right of way across and upon public, |