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Irrigation institutions: a discussion of the economic and legal questions created by the growth of irrigated agriculture in the West online

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can be maintained over the stored supply as well as
over the natural stream, and conflicts over complete
public control be averted.

The appropriation of funds to construct public
storage works has given rise to some discussion as
to whether public reservoirs should supply water to
private lands, and some have urged that the water-
supply thus rendered available should be applied
exclusively to public land. To do this, however,
would be a serious economic error. On many
streams all the water which can be stored is
needed by the land under existing ditches and in
private ownership. The settlers on these lands
were many of them induced to locate and make im-
provements by the abundance of water carried by
streams in the flood season. Subsequent expe-
rience has shown that it is the low-water and not
the high-water flow which determines the area
which can be safely brought under cultivation, and
many of the farms which have been improved are
now either not being cultivated at all or are being
farmed under discouraging conditions. Their own-
ers have been encouraged to continue by the hope
of an increased water-supply through the storage
of floods either through private enterprise or
public aid, but if the public construction of reser-
voirs shall divert the stored water to new lands, it
will not only afford them no relief but, by exhaust-
ing the reserve supply, will take away all hope of
securing it in the future. The carrying out of


such a policy would be both unjust and uneconomic.
It would rob one settler in order to provide for
another ; it would return one acre to aridity in
order to render another fertile; it would involve a
large outlay in building canals to reach new lands
and condemn the canals already built to remain
unused or only partly used.

There is greater need of storage works to supply
private than public lands, because wherever reser-
voirs are desired the greater part of the irrigable
land has passed into private ownership. The
large bodies of irrigable public land still awaiting
reclamation are located along the great rivers of
the West, where diversion and not storage works
are the first necessity ; but where there is a de-
mand for reservoirs, the ditches already built and
the lands now in private ownership will, in nearly
every instance, require all the water which can
be made available.

There is practically no irrigable public land in
California. All the best land is in private hands.
The same is true of Kansas and in a slightly
less degree of Nebraska. When the lands under
ditches now built have been irrigated, there will
be little water remaining for public land from the
streams which flow eastward from the Rocky
Mountains in Wyoming and Colorado. All of the
irrigable lands in Utah along the streams flowing
into Great Salt Lake have passed into private
ownership. The situation in Salt River Valley,
Arizona, has already been referred to, and similar


conditions prevail on nearly every stream where
irrigation has assumed enough importance to make
reservoirs a live issue.

While in most of the arid States the government
owns a large part of the land, it has disposed of
the greater part of its water fronts. There are
many causes for this. The need of a water-
supply has limited settlement to the vicinity of
streams. As has been explained in a preceding
chapter, water fronts are sought for by range
stockmen as eagerly as by irrigators, and they
have acquired them with greater expedition and in
larger areas. Three of the transcontinental rail-
ways received grants of every alternate section of
land for 20 or 40 miles on either side of their
tracks. These railway lines have, wherever pos-
sible, followed streams, and these grants include
half of the land along the valleys of such rivers
as the Yellowstone, the Yakima, the Humboldt,
the Truckee, the Platte, and many others. The
arid States have received grants of sections 16
and 36, and in addition have had special donations
which could be located wherever the States chose.
A large percentage of this land has also been lo-
cated along streams. In one way and another,
therefore, the greater part of the irrigable land,
outside of the valleys of a few large rivers, has
passed into private, corporate, or State ownership,
and Federal aid, so far as reservoirs are concerned,
will have a very limited influence on the irrigation
of public land.



The paramount need of the West is relief from
some of the evils of the haphazard development of
the past, and for the creation of conditions which
will furnish an adequate foundation for growth in
the future.

Foremost among these is a common agreement
regarding the nature of titles to water. It must
be settled whether rights are to be limited to
needed and beneficial use, or streams are to be
owned as personal property. It must be settled
whether the common-law doctrine of riparian
rights when recognized is to be maintained in its
original form, or be modified to meet Western con-
ditions. 1 On many rivers the rights already
declared to be vested amount to more than the
whole volume. Until it is known whether these
mistakes are to be perpetuated, future diversion

1 If it be the unalterable law of this State that an owner of ripa-
rian land may, as at common law, prevent any one above him from
taking any water out of the stream for beneficial use, merely that
the stream shall flow past his place undiminished in quantity, and
whether such riparian owner can put the water to a beneficial use
on his land or not, then no legislation that we may suggest, or the
Legislature enact, will materially relieve the situation. If that be
! the law, and it cannot be changed or modified, there is probably
il no water in any stream in the State that can be legally appropriated,
and the right to the use of water that has been appropriated here-
'' tofore has only been acquired by the sufferance of riparian owners
i or their neglect to assert their rights. The enforcement of such a
law would be disastrous in the extreme. The majority of the Com-
mission do not believe, if this is the law of the State, as declared by
the Supreme Court, that it cannot be changed by the Legislature.
(From report of Irrigation Commission to Water and Poorest As-
sociation of California.)



or storage of water will be uncertain and hazard-

The idea of private ownership of water apart
from land cannot prevail without creating institu-
tions essentially feudal in character. A water
lord is even more undesirable than a landlord as a
dominant element in society, and a proposition for
turning over all the land to a private monopoly
and making tenants of those who have their homes
upon it could not hope to command popular sup-
port, but the idea of private ownership of water,
amounting to a virtual monopoly of this vital
element, has been permitted to grow up in the
West. It has no place in the irrigation laws of
other enlightened countries, and in ours should give
place to a more enlightened conception.

The doctrine that air, water, and sunshine are
gifts from God should not be lightly set aside even
in arid lands. There is need for adequate protec-
tion for investments in canals and ditches, but this
can be afforded without having the water they
carry become private property or the stream itself
become subject to private ownership. The growth
and danger of monopolies in oil, copper, coal, and
iron afford a warning of the greater danger of per-
mitting monopolies in water. The growing belief
in the public ownership of public utilities applies
especially to water, that most essential of all utilities.

In monarchies streams belong to the crown, and
in the early history of irrigation in Italy and other
parts of Europe, favorites of the rulers were re-


warded with grants of streams. But in a republic
they belong to the people, and ought forever to be
kept as public property for the benefit of all who
use them, and for them alone, such use to be under
public supervision and control.

The only right to water which should be recog-
nized in an arid land is the right of use, and even
this must be restricted to beneficial and economi-
cal use in order that the water-supply may serve
the needs of the largest possible number of people.
Ownership of water should be vested, not in com-
panies or individuals, but in the land itself. When
water rights are attached to land, the needs of
crops are always a sure measure of beneficial use.
When rights are made personal property, benefi-
cial use becomes simply a legal fiction. Attaching
rights to land divides the control of streams like
the ownership of land among a multitude of pro-
prietors. Reservoirs and canals are then like the
streets of a town, serving a public purpose. Water
monopoly is impossible without land monopoly and
no other abuse is fostered by it. Years of painful
experience have abundantly proven that peaceful
and orderly development cannot be realized except
as water and land are forever united in one
ownership. 1 The adoption of this principle in

1 In the arid States the only right to water which should be rec-
ognized is that of use. In irrigation this right should attach to the
land reclaimed and be inseparable therefrom. Granting perpetual
water rights to others than users, without compensation to the
public, is open to all the objections which apply to giving away



Wyoming and Nebraska and its enforcement by
the State boards of control has been attended with
the best results. If it can be maintained and ex-
tended to the other States, it will mark an eco-
nomic reform of the highest significance in the life
of the West.

These limitations on water rights would, it is be-
lieved, benefit the owners of canals as greatly as
the cultivators of irrigated land. The doctrine of

perpetual franchises to the public utilities of cities. (President
Roosevelt's Message to Congress, December 3, 1901.)

A recognition of the danger of allowing water to be monopolized (.
without regard to the land has led a commission appointed to in- f
quire into California irrigation to declare that " as a matter of pub-
lic policy it is desirable that the land and water be joined never to
be cut asunder ; that the farmers should enjoy in perpetuity the
use of the water necessary for the irrigation of their respective
lands ; that when the land is sold the right to water shall also be
sold with it, and that neither shall be sold separately." (Australian
Report on American Irrigation.)

Italian experience, French experience, and Spanish experience,
all go to show that the interests to be studied in relation to irriga-
tion schemes are so many and so various, and so intimately bound
up with the public welfare, that State control is imperatively neces-
sary, and that for the protection of its citizens no monopoly can be
permitted which would separate property in water from property in
the land to which it is applied. (Fourth Progress Report, Royal
Commission on Water Supply, Victoria, Australia.)

European experience shows . . . that where waters belonging to
the State are farmed and relet by private individuals water rights
are a constant source of gross injustice and endless litigation. The
consequence of these interminable vexations is that the poorer or
more peaceably disposed landholder is obliged to sell his posses-
sions to a richer or more litigious proprietor, and the whole district
gradually passes into the hands of a single holder. (G. P. Marsh,
formerly United States minister to Italy.)



personal ownership of water has made those who
have appropriated it to rent or sell, trustees or
agents for users, and thrust on them all of the ex-
pense of fighting rival appropriators in the fields
and in the courts. It incites every irrigator to re-
bellion because he feels that the doctrine which
gives the stream to the man who diverts it, and
denies all rights to the one who uses it, makes him
the victim of an unjust discrimination.

So long as ditch-owners are the appropriators of
water they have to maintain a dual conflict. They
must strive with other appropriators for control of
the stream and with their customers over the quan-
tity and price of the water they furnish. On the
other hand, where ditches are made carriers of
water and rights in streams attach to the land, the
burden of the struggle over a fair division does not
fall, as it now does, solely on the owners of canals.
The farmer thus ceases to look to his water con-
tract with a company, but to the laws of the State
for protection in times of shortage.

Where appropriations attach to land, canal own-
ers have no responsibility except to deliver what
comes to the head-gate. For this service they are
entitled to fair compensation, and they come nearer
receiving it in States where the farmer has to pro-
tect his own water right than they do in States
where the ditch-owner is the appropriator and
rates are fixed by boards of supervisors and county
commissioners under conditions which make prac-
tical confiscation of investments more than possible.


Whatever may be the opportunities of private ]
ownership of water in the future, it has not thus far
in this country worked to the benefit of ditch com-
panies. On the contrary, it is believed to be the
greatest evil with which they have to contend. It
has been a potent source of hostile public senti-
ment and the origin of both expensive litigation
and retributive legislation.

There is the same need for public control over
streams that there is for government control over
public land. There is the same need for the State
engineer's office in every arid State to direct the
diversion of streams that there is for land offices to
supervise filings on public lands. We cannot go
on in the future as we have in the past, leaving
water to be filed upon without limit, used without
definite regulation, and leaving titles to its future
ownership to be settled in the courts by ordinary
suits at law.

The experience of every arid State has shown
that trouble always results when it is left to rival
users to determine the nature of their rights. Irri-
gation more than all other industries demands pub-
lic supervision and control. Every drop of water
entering a ditch, every drop escaping at the end of
a canal, is a matter of public concern. The public
must determine through constitutions and statutes
the nature of water ownership. The public must
establish means for the measurement of streams
and for ascertaining how much water may be taken
for each acre of land under the principle of benefi-
2B 369


cial use. The public must see that justice is done
in the distribution of water among those who have
properly established their claims to it. We have
thoroughly tried leaving all these to private initia-
tive and management and along with magnificent
material progress we have reaped a large crop
of deplorable results. In order to have this con-
trol just and effective, it must be administered
by men who have made a special study of the
subject, and these men must be given exclusive

Irrigation administration has thus far been ham-
pered by the prevailing practice of leaving the
final settlement of practically every question to
the courts. While there are certain questions
which must always be left to judicial settlement,
we are leaving far too much to litigation at pres-
ent. The party who files on a homestead must
make his proof in a United States land office. He
cannot go to the courts for a patent. If he could,
demoralization in land matters would be prompt
and certain. In the same way, to make adminis-
tration of streams effective, those having charge of
this administration must be given adequate author-
ity. If parties can elect whether they will settle
their rights in the courts or before an irrigation
tribunal, the creation of the tribunal will be worse
than useless. Suppose there are ten claims to
water from a stream. If nine claimants elect to
have rights settled before the irrigation tribunal
and one goes into court, there will be two sets of


rights and unending complications as a result. A
double jurisdiction over streams is no more pos-
sible than is the operation of a railroad with two
presidents to direct its policy.

In order to have a just determination of rights,
it is necessary to have them based on a correct
knowledge of physical facts. Before it can be
settled how much water has been appropriated, it
must be known how much water a stream carries.
Before any one can decide how much water has
been beneficially used, the location and extent of
the land irrigated must be known and there must
be an approximate determination of the duty of
water. Before any rights to a stream are estab-
lished, all the uses of water from it should be
determined by some public authority and the re-
sults of these measurements given the widest pub-
licity in order that all interested may know how
much is being used and how much remains to be
used hereafter. The need of this information is
so obvious that it is difficult for those unfamiliar
with the subject to credit the assertion that in all
but four of the Western States this matter has been
wholly neglected.

After rights are defined, they should be pro-
tected. This cannot be left to appropriators
themselves. Peace and security can only be
assured to the millions of irrigators, who are to
fill Western valleys, by having such a system of
administration as will assure each user of water
that he will receive his just share of the supply, no


matter how far from the mountain snows his farm
may be situated.

Success in this administration requires that the
valleys of rivers and their tributaries must be
divided up into districts of convenient size, the
boundaries of which shall be based on drainage
lines. These districts should constitute separate
independent political divisions of each arid State.

If possible, the limits of State and Federal juris-
diction should be more clearly defined. It has
heretofore been assumed that the authority of each
State in the disposal of the water-supply within its
borders was unquestioned and supreme, and two
of the States have constitutional provisions as-
serting absolute ownership of all water-supplies
within their bounds. A recent decision of the
United States circuit court holds this view to be
erroneous, and in other litigation, the decisions
have been of such a character as to give rise to
grave uncertainty as to what is to be the ultimate
settlement of this issue.

There is further need of legislation on this ques-
tion because of the serious complications which
have arisen from the absence of any national
law or regulation concerning the division of water
across State lines. There are many instances
where one stream is a source of supply for irri-
gators in two or more States. It is beginning
to happen that the perennial flow of these streams,
which was first appropriated in the State along its
lower course, has been utilized at a later period by


irrigators in the State above. Neither of the States
concerned possesses power to remedy the injury
which results and each makes claim to all the
water flowing upon its soil. Owing to each State
having been left to legislate on this question inde-
pendently of its neighbors, the water rights in
adjacent States are in some instances as different i
in character as if these commonwealths were on
opposite sides of the globe. The complications
created by these differences aggravate the evils
and render the adoption of regulations for the
division of interstate supplies far more difficult.
This does not mean, however, that a solution is
impossible, but it does require that the means to
be employed should receive early and careful

Thus far, rights to water in all of the Western D^L^rf*
States and Territories have been made free and j
perpetual, and it has been urged that the policy I
under which the natural flow of streams has been
disposed of should be extended to the water stored
in public reservoirs. Those who urge the adoption
of this policy justify it on the ground that the
results which will come from the cultivation of
the soil thus rendered productive will more than
justify the outlay. It is pointed out that the gov-
ernment has constructed reservoirs at the head
of the Mississippi for the benefit of navigation,
and it is insisted that there are equal reasons for
performing a like work on the headwaters of the
Missouri for the benefit of agriculture ; that since


the first is done without charge, the other should
be. There is, however, one feature in the improve-
ment for the benefit of commerce which is lacking
in the construction of irrigation works for the ex-
tension of agriculture. All who wish to navigate
a river or harbor may do so, but all the owners of
land along a stream cannot share in the waters of
a reservoir. Hence, if the water from public works
is made wholly free, the owners of arid land who
are cut off from the supply will have just cause
for complaint, as will those who build and main-
tain storage works at their own expense. The
argument in favor of such liberality would have
added weight if all the rights to water now recog-
nized were attached to the land and limited to its
need, but the fact that in a majority of the Western
States rights to water are personal property and
are being bought and sold like any other kinds of
property, is not only an argument against such
a policy in connection with government works but
raises the question as to whether or not all the
water used should not be charged for.

One of the great needs of Western irrigators to-
day is more efficient public control of streams and
better protection of existing rights, and the great-
est obstacle to securing this is the difficulty of
securing sufficient funds to pay for this ser-
vice. It would be an immeasurable gain to the
public if all the water diverted could be charged
for and the money thus collected be used to pay
for better administration. The collection of such


rentals would also have an educational influence
of no mean value. It would place public owner-
ship of streams before irrigators in a form to be
understood. At present, to the great body of
water users, the doctrine of public ownership is
a mere abstraction. Appropriations are made
without regulation and streams are diverted with-
out supervision, and those who use them believe
that what they so completely control belongs to
them. But if a rental were paid to the public,
no matter how small, it would show that the pub-
lic and not the appropriator was the owner of the

The plan of charging a rental for the water fur-
nished could also be made to work well in the
operation of public reservoirs. These should not
displace but supplement the use of water taken
directly from the streams. When there is an
abundance of water, the reservoir should not be
drawn upon, but its water should be held until
ditches cannot be filled from the natural flow.
Under this plan an acre of land will be watered
during part of the season from the stream and
during the remainder from the reservoir.

No plan for doing this is so simple or promises
to be so effective in promoting economy as to
charge for the quantity received, making the rate
for stored water higher than for the natural flow,
and thus make the cost to irrigators an induce-
ment for thrift and saving.

The time has also come for considering whether


or not grants of water should be made perpetual.
Some of the foremost irrigated countries of Europe
treat these rights as franchises and limit their dura-
tion to fifty or ninety-nine years. Such franchises
would serve every useful purpose of a grant in
perpetuity and might save future generations from
large outlays in the condemnation of vested rights,
should such action be found desirable. The ten-
dency in cities toward municipal ownership of pub-
lic utilities will, it is believed, extend in time to the
municipal ownership of canals and reservoirs, and

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Online LibraryElwood MeadIrrigation institutions: a discussion of the economic and legal questions created by the growth of irrigated agriculture in the West → online text (page 23 of 25)