purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

Sec. 7. "All persons and corporations shall have the right of way across public, private, and corporate lands for the construction of ditches, canals, and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.

Sec. 8. "The general assembly shall provide by law that the board of county commissioners, in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations."]

§ 108. Idaho.

The revised statutes of this state contain a title on the subject of "Water Rights and Irrigation." A portion of this statute is the same in substance, with some variations in the detail, as the provisions hereinbefore quoted from the Civil Code of California, while the remainder follows the system prevailing in Colorado and Montana. We quote the essential provisions as follows:

Sec. 3155. "The right to the use of running water flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation."

Sec. 3156. "The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases."

1 Rev. St. Idaho, §§ 3155-3205.

Sec. 3157. The appropriator may change the place of diversion, etc., if no injury is done to others.

Sec. 3158. "The water appropriated may be turned into the channel of another stream, and mingled with its water, and then reclaimed; but in reclaiming it, the water already appropriated by another must not be diminished." Sec. 3159. "As between appropriators, the one first in time is first in right."

Sec. 3160. Notice must be given of the appropriation, substantially as in California.

Sec. 3161. The works intended to make the appropriation effective must be commenced within sixty days after the notice, and prosecuted "diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain."

Sec. 3162. "Completion" means conducting the waters to the place of intended use.

Sec. 3163. "By a compliance with the above rules, the claimant's right to the use of the water relates back to the time the notice was posted."

Sec. 3164. "A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith."

Secs. 3165--3167. Ditches, appropriations, and claims heretofore made are protected.

These provisions plainly do not differ in any material manner

1 Under this provision, it is held, the court must determine the date and amount of each appropriation, and from these facts determine the priority of right. Kirk v. Bartholomew. (Idaho,) 29 Pac. Rep. 30. One who, by himself and his grantors, has appropriated first all the waters of a creek, and has continually used the same for the pur

pose of irrigating the lands owned by him, upon and along said creek, is entitled to all of said waters, to the extent of the capacity of his ditches necessary to the proper irrigation of his said lands, as against subsequent locators. Hillman v. Hardwick, (Idaho,) 28 Pac. Rep. 438.

The following sections

from those of the California Civil Code. contain the essential elements of the Colorado and Montana legislation:

Sec. 3180. "All persons, companies, and corporations, owning or claiming any lands situated on the banks or in the vicinity of any stream, shall be entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed."

Sec. 3181. When any such person, etc., has not sufficient frontage on a stream to afford a sufficient fall for such a ditch, or when his land is back from a stream and convenient facilities for irrigation cannot otherwise be had, he "shall be entitled to a right of way through lands of others for the purposes of irrigation." Proviso, that he shall keep his ditch in good repair, and shall be liable to the owner of the land which it crosses for injuries caused by overflow or neglect or accident.

Sec. 3182. If the owner of the land refuses a right of way, the same may be obtained by condemnation, upon payment of the compensation as fixed.

Sec. 3183. Provisions for ascertaining and fixing such compensation by appraisers.

Sec. 3184. Persons, etc., having land adjacent to any stream may place in its channel or on its banks rams, etc., to raise the water above the level of the banks; and a right of way for conducting such waters across the lands of others may be acquired in the manner prescribed in the last two sections.

Secs. 3185, 3186. Provisions as to maintaining and keeping in repair the ditches; not to do damage, etc.

Sec. 3187. All rights acquired previous to this act are not af fected thereby.

Sec. 3188. When the water is not enough to fully supply a whole community or neighborhood, it must be distributed among them according to the local customs as established and as recognized by the courts.

Sec. 3189. If a ditch is constructed in order to sell the water for irrigation, persons shall be entitled to said water at the usual rates, in the following order, viz.: First, all persons through whose land the ditch runs, in the order of their location along the line of the ditch; second, after the last named, then those on either side of the ditch,-those at the same distance each side being equally entitled, etc. Excessive use by any one is pro

hibited.

Another chapter of this title relates to the distribution of water for purposes of irrigation.' This statute provides for the creation of water or irrigation districts, and for the election of a "water-master" in each; and minutely prescribes his duties of superintending the ditches, their repair, the distribution of water among consumers, etc.

A recent statute of this state adopts the fundamental notion of the Colorado, Montana, and Idaho legislation; but extends the right of appropriation equally to all beneficial pur poses, as well as that of irrigation.2

Section 2029. Any person or corporation, having title or possessory right to any mineral or agricultural land, shall be entitled to the use and enjoyment of the water of any stream, creek, or river within the state, for mining, milling, agricultural, or domestic purposes; but this shall not interfere with rights previously acquired.

Sec. 2030. Such persons may have a right of way across the lands of others under the same circumstances as prescribed in the Colorado, Montana, and Idaho statutes.

Sec. 2031. This right of way shall only extend to the construction of a suitable ditch, or canal, etc.

1 Rev. St. Idaho, §§ 3200-3205.

2 Comp. Laws Dak. 1887, §§ 2029-2036.

Sec. 2032. All controversies between different claimants of water shall be determined by the dates of their respective appropriations.

Sec. 2033. "The water of the streams, rivers, and creeks of this territory may be made available to the full extent of the capacity thereof, for mining, milling, agricultural, or domestic purposes, without regard to deterioration in quality or diminution in quantity, so that the same do not materially affect or impair the rights of prior appropriators."

Sec. 2034. If the owner of lands sustains injury by a ditch constructed across it, under section 2030, the ditch-owner shall be liable to him in damages therefor.

Sec. 2035. Relates to the abandonment of ditches or appropriations.

Sec. 2036. Prescribes penalties for violation of foregoing provisions.

One remarkable feature of this statute is that, unlike those of Colorado and Idaho, it makes no provision whatever for obtaining a right of way for a ditch across the lands of another owner, by condemnation. It seems to permit an appropriator to construct his ditch across the lands of another, without the latter's consent, without any compensation ascertained and paid, and without the necessity of any proceedings for a condemnation. The only provision for the benefit of such land-owner seems to be a right to recover damages, if any injury is caused by the ditch. Such legislation is, to say the least, remarkable. It seems to be a plain invasion of the rights of private property, an evident violation of the constitutional prohibition against depriving a person of his property without due process of law, and taking private property for public use without just compensation. That such a provision is invalid seems hardly to admit of a doubt.