appropriated water of any river or natural stream within the arid portions of the state, "in which, by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes," may be diverted from its natural channel for irrigation. An action having been brought against an irrigation company to enjoin it from proceeding with the construction of a dam across a river, it was held that the defendant must plead and prove that the river was in an arid portion of the state, where the rainfall was insufficient and irrigation was necessary; and as it failed to do this, a restraining order was properly granted.26 In regard to the acquisition of water rights by purchase from prior holders, nothing special need here be said. The method of transferring such rights has already been commented on.27 It should be observed, however, that a company does not, by the mere purchase of land on which the head-spring of a stream is situated, acquire the right to divert the water of the spring or stream from its natural channel, without making compensation to lower owners; for its purchase of the land gives it merely the rights of a riparian owner.28 That it is within the constitutional power of the legislature to invest an irrigation company with the power of eminent domain, authorizing it to condemn and take the water rights of riparian owners or prior appropriators, in cases where the system of irrigation established by its canals will be of general benefit to an entire community or district, and where it is required to furnish water to all persons who apply for it and offer the proper charges, and where the rates charged are subject to state or munici pal regulation, does not seem to be open to reasonable doubt.29 This has not often been deemed advisable. But in Oregon the courts have sustained the constitutionality of a statute conferring upon such companies the power thus to appropriate the rights of riparian owners, but with a saving of the rights of such owners in water for household and domestic use, for watering stock, and such as is "necessary to irrigate crops growing upon such lands and actually used therefor."30 § 190. Right to use ditch constructed by another. In Colorado and Oregon,31 the statutes provide that no improved or occupied land shall, without the owner's written consent, be subjected to the burden of two or more irrigating ditches, constructed for the purpose of conveying water through such property to lands adjoining or beyond it, when all the water necessary can be conveyed in one ditch; and that no person, having constructed a private ditch for such purposes and in such manner, shall prevent any other person from enlarging or using it, in com. mon with him, on payment of a reasonable proportion of the cost of construction of the ditch. It is held, however, that where a person has constructed a ditch on his own land, for irrigating it, and not with a view to conveying water through or beyond it, this statute gives no authority to another to enlarge the ditch, without the owner's consent, for the purpose of conveying water to the land of others, where there are other practicable routes, and especially where the ditch is not of a uniform grade, and 20 See §§ 172-174, supra. And see Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 674. 30 Umatilla Irr. Co. v. Barnhart, (Oreg.) 30 Pac. Rep. 37. See, supra, § 178, section 8 of the act. 311 Mills' St. Colo. §§ 22612263; Laws Oreg. 1891, p. 52, §§ 12, 13. its enlargement would greatly diminish its usefulness.32 But the mere fact that a ditch, sought to be used by other persons than the owners, is owned by a corporation, does not exempt the ditch from the operation of the statute.33 In the same case in which this decision was made, it was also held that while the court may authorize the applicant to occupy, enlarge, improve, and use the ditch in common with the original owner, it cannot require such owner to perform work or make expenditures for the purpose of 32 Downing v. More, 12 Colo. 316, 20 Pac. Rep. 766. In this case Hayt, J., observed: "That this is the proper construction to be given to the act of 1881 we have no doubt. It was never intended to have any application to cases like the one at bar. Here the ditch sought to be enlarged is a small one, constructed by the respondent for the irrigation of his farming lands, and not for the purpose of running water through said lands to lands adjoining or beyond the same. The statute, in express terms, limits its application to ditches constructed for the purpose of conveying water through such property, and speaks of such ditches as a burden. The ditch of respondent is not a burden to his land, but an improvement upon the same. Under the statute, two or more outside parties cannot burden the servient estate with two or more ditches and two or more easements, without the owner's consent, when it is practicable to accomplish the same object by imposing but one burden. If there was no other practicable or feasible route for the ditch, perhaps the courts might compel the respondent to allow to the enlargement of his ditch by the appellees; but this would not be by virtue of this statute, but would arise from the necessities of the case. In the case at bar, no such neces sity is shown to exist, but on the contrary it is shown that water had been taken through this same quarter-section and upon the lands of one of the appellees by another and different route used by him for several years, upon the verbal consent of the respondent, and that such a route would be practicable for the purpose of conveying water to the lands of both More and Howlett. It further appears that the small ditch sought to be enlarged was not constructed upon any uniform grade, but that it had an average grade of 68 feet to the mile, and that by increasing its capacity as proposed by the appellees the velocity of the water would be accelerated to such an extent as to cause the ditch to wash into the soil, and destroy in a large measure the usefulness of the ditch to the appellant." Sand Creek Lateral Irr. Co. v. Davis, (Colo.) 29 Pac. Rep. 742. adapting the ditch to such applicant's use. And it was further held in the case cited, that, in ascertaining the amount to be awarded as compensation, the jury should determine and specify the value of petitioner's interest in defendant's right of way, which is a property right with a money value. It is also held in a late case (San Luis Land Co. v. Kenilworth Canal Co. [Colo.], 32 Pac. Rep. 860), that this statute is intended only for the benefit of the owner of the land to be crossed, and that it does not apply to a canal company which is seeking to prevent the taking of land for, and the construction of, another irrigating canal by a different company, through the same land occupied by the former company. Also, that the fact that a contemplated irrigating canal runs parallel for many miles with a like canal already constructed, is no reason for prohibiting the former from taking, by right of eminent domain, the necessary land for its use. § 191. Bridging highways and crossings. It will be seen from our synopsis of the statutes, given above, that many of the states require ditch companies to build and maintain suitable bridges over their ditch wherever the same crosses the line of a highway or public travelled road. If such a company neglects to comply with this requirement, it is provided, in several states, that the road supervisors or overseers of highways may construct the necessary bridge or bridges and recover the cost from the company. But where no such alternative provision is made, it is thought that mandamus is a proper remedy to compel the company to fulfill its duty in this respect.3+ But in Colorado it is held that a municipal corporation which accepts the dedication of streets across which a ditch has been previously located and the right of way therefor acquired, takes the same subject to the prior rights of the owners of the ditch; and when the necessi34 Fresno Co. v. Fowler Switch Canal Co., 68 Cal. 359, 9 Pac. Rep. 309. ties of the public require that such ditch be bridged at the street crossings, it is the duty of the city, and not the ditch-owners, to construct the bridges.35 $192. Tolls and charges for water. The power to charge tolls or rates for water sold or distributed to consumers is a franchise, which is conferred on corporations formed under general laws for the organization of irrigation and ditch companies, and it can be exercised by a corporation only in the manner provided for in those laws.36 Furthermore, it will appear from a review of the statutes that the states, in almost every instance, have reserved the power to control and regulate the amount of such charges. Such a reservation, in view of the important interests affected by such corporations, and in view of the frequent opportunities they would otherwise have of almost unlimited extortion and oppression, as well as in view of the valuable rights and franchises conceded to them, must be regarded as eminently just and reasonable. § 193. Contracts with consumers. A provision in an option contract with a ditch company to furnish a consumer with water, that, upon failure to pay the annual rental, the consumer "forfeits and relinquishes all rights and claims whatsoever in and to the use of said water from said ditch," applies only to rights given by the contract, and does not waive the consumer's statutory right to obtain water from the company's ditch under an order from the county commissioners.37 On the other |