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that every riparian owner is entitled to the natural flow of the stream through his land as it was wont to run,-is not applicable to the streams in Nevada, but the rights thereto should be determined by the doctrine of prior appropriation.1

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The legislation of this state is in complete derogation of the common-law "riparian rights." It will be noticed that the lands for which it provides the use of water may be situated anywhere within the state. Their situation on, near, or at a distance from streams is wholly immaterial. I give an abstract of the provisions, only quoting the exact language of the most important and fundamental provisions.2

Sec. 1239. Any person or corporation owning or having a possessory title to any agricultural land "shall be entitled to the use and enjoyment of the waters of the streams and creeks in said territory, for the purposes of irrigation and making said land available for agricultural purposes, to the full extent of the soil thereof." Proviso, when by a prior appropriation any person has diverted all the water of a stream, or so much thereof that there is not an amount left sufficient for those having a subsequent right thereto for irrigation, then any surplus left by said prior appropriator shall be turned back into the stream for the use of subsequent claimants, with a penalty in the form of damages for a neglect to do so after demand made.

Sec. 1240. Any such person or corporation owning land, when there is no available water thereon, or when it is necessary to raise the water of "said stream," so as to irrigate said land, or when said lands are too far removed from said streams to use them, said persons, etc., shall have a right of way across any tract of land for ditches, canals, flumes, etc.

1Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. Rep. 317. 2 Comp. St. Mont. 1887, § 1239-1249.

Sec. 1241. Such right only extends to the digging ditches, etc., across the land of another, as may be necessary.

Sec. 1242. All controversies between different claimants of water shall be determined by the dates of their respective appropriations.

Sec. 1243. All waters of streams are so available to the full capacity thereof for irrigating, "without regard to deterioration in quality or diminution in quantity," so as not to affect the rights of a prior appropriator; but in no case can water be diverted from the ditches, etc., of such appropriator.

Sec. 1244. Any person digging a ditch, etc., under section 1240, and thereby injuring the lands of another, shall be liable in damages to the injured party.

Sec. 1245. This act shall not impair rights already acquired.

Sec. 1246. Nor shall this act prevent the appropriation of said streams for mining, manufacturing, and other beneficial purposes, and the right to appropriate for such purposes is hereby declared and enforced.

Sec. 1247. Persons constructing ditches across public highways must repair the same.

Sec. 1248. Penalty for violation of last section.

Sec. 1249. All controversies respecting rights to water for any purposes, and the rights of parties to use water, shall be determined by the dates of their respective appropriations, "with the modifications heretofore existing under the local laws, rules, or customs, and decisions of the supreme court of said territory."

The legislation of this state also contains provisions regulating the appropriation of water, which are modelled upon the California Civil Code, §§ 1410--1421, and do not differ from the provisions of that statute in any fundamental particulars, although some of the details are not exactly identical.1 And the same volume of statutes, in

1 Comp. St. Mont. 1887, §§ 1250–1259.

the chapter concerning "corporations for industrial or productive purposes," authorizes the formation of companies for the purpose of taking and conducting water from streams for various beneficial purposes.1 Further, the session laws for 1891 contain an act providing that proceedings to secure a right of way for a ditch or canal (as mentioned in § 1240 of the statutes, ut supra,) shall be commenced by a petition filed in the proper district court, a citation to the owners to appear and show cause why the right of way should not be granted, a hearing upon the allegations and proofs, and an assessment of the damages by three disinterested commissioners, from which assessment an appeal is given.2

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The statutes of this state, in their latest revision, also contain an elaborate system of rules concerning the use of water for irrigation, which resembles in its essential features that of Montana. It will be sufficient for my purposes to give a brief abstract of its provisions, quoting the exact language only of those which are fundamental.3

Sec. 2256. "All persons who claim, own, or hold a possessory right or title to any land or parcel of land within the boundaries of the state of Colorado, where these claims are on the bank, margin, or neighborhood of any stream of water, creek, or river, shall be entitled to the use of the water of said stream, creek, or river, for the purposes of irrigation, and making said claims available, to the full extent of the soil, for agricultural purposes."

Sec. 2257. When any such person, as mentioned in the last section, "has not sufficient length of area exposed to said stream

1 Comp. St. Mont. 1887, SS 446 et seq. 2 Laws Mont. 1891, p. 295. $1 Mills' Ann. St. Colo. §§ 2256 et seq.

to obtain a sufficient fall of water to irrigate his land, or that his farm, etc., is too far removed from said stream, and that he has no water facilities on those lands, he shall be entitled to a right of way through the farms or tracts of land which lie between him and said stream, or the farms or tracts of land which lie above and below him on said stream, for purposes herein before mentioned."

Sec. 2258. The right of way given by the last section only extends to the construction of a ditch or canal sufficient for the purpose of carrying the water required.

Sec. 2259. If the amount of water is not sufficient to furnish a constant supply to all the community using a ditch or canal, provision is made for allotting it to different consumers on alternate days or times.

Sec. 2260. If the owners of tracts of land refuse to allow ditch-owners a right of way, the right may be obtained by condemnation, under the power of eminent domain.'

Secs. 2261-2265. Special provisions regulating the use, maintenance, repair, etc., of ditches.

Sec. 2266. The ditches herein provided for are for irrigation only.

Sec. 2267. In case of a deficiency in the supply of water, provision is made for regulating its pro rata distribution among the consumers entitled. Additional sections provide for the formation and management of public irrigation districts; for the defraying the expenses of constructing, maintaining, repairing, etc., the ditches therein; for the regulation of the water

1 [In Colorado, when a person without initiating any steps under pre-emption or other laws to procure title to public lands, places improvements thereon, and another desires to construct his irrigating ditch over or across such lands, if, by a proper proceeding,

full compensation is determined and is paid for all damage or injury to the improvements caused by constructing such ditch, the constitutional and statutory requirements are complied with. Knoth v. Barclay, 8 Colo. 300, s. c. 6 Pac. Rep. 924.]

supply and distribution; for the rates of charge, etc.1 These provisions will be considered in detail in the subsequent chapters relating to irrigation and ditch companies and to public irrigation districts.

Secs. 2399-2439. An elaborate system is provided for the adjudication of rights of priority among different appropriators, partly by means of special proceedings, and partly by means of ordinary actions.

Another portion of these statutes authorizes the formation of corporations to take and convey the water of streams for mines, mills, irrigation, etc. These provisions also will be considered.

in a later chapter.

[We append here those provisions of the constitution of Colorado which relate to the subject of water rights and the right of appropriation.

Art. 16, Sec. 5. "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.

Sec. 6. "The right to divert unappropriated waters of any natural stream for beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not suffi cient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other

11 Mills' Ann. St. Colo., §§ 23102392, and 2440-2469.

2 Id., § 567-574, 949-956, 22612309.

133 Under this clause it is held that, while the legislature cannot prohibit the appropriation or di

version of water, for useful purposes, from natural streams upon the public domain, it has the pow er to regulate the manner of such appropriation or diversion. Larimer Co. Reservoir Co. v. People, 8 Colo. 614, 9 Pac. Rep. 794.

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