to be the conducting of the water in the main canal to the place of intended use."

Sec. 8 provides that by compliance with the preceding rule the claimant's right to the use of water relates back to the time when the work of construction was commenced.

§ 524. Corporations.-Powers of.-Sec. 10. Corporations may be formed under the provisions of the Act for the purpose of constructing and maintaining ditches and other works necessary, and furnishing water to all persons entitled to the same for irrigation and domestic purposes. All persons owning land contiguous to any such ditch, and who shall have secured a right to the water in the same, 'shall be entitled to be supplied with water from such ditch for the purpose of irrigation of such land and domestic uses.

Sec. 11. All corporations formed for the purpose of irrigation as provided in the Act are granted a right of way not to exceed 100 feet in width over all lands of the State. Also, any such corporation may obtain the right over private lands by condemnation proceedings, as in the case of the same proceedings by railroads.

§ 525. Sale of Water.-Penalties.-Sec. 12. All surplus water not used or disposed of as provided for in the preceding sections of this Act shall be conducted back to the stream from which it was taken. The section also provides for the measurement of water by inches, feet or fractional portion of the whole supply, or distribution by the hour or acre system.

Sec. 14. "Any person who shall wilfully or through gross negligence injure any irrigating canal or its appurtenance, wells or reservoirs, or who shall waste the waters thereof, or shall take the water therefrom without authority, shall be deemed guilty of a misdemeanor, and for each offense shall be liable for a fine not exceeding five hundred dollars."

§ 526. Lien Upon Crops.-A supplementary section to the above Act was also added in 1893. The section provides: "Every person, corporation or association of persons which

1 See Stat. 1893, p. 47, Sec. 2.

has heretofore constructed or which may hereafter construct any ditch, canal or reservoir for the purpose of irrigation and who shall lease or rent the water from said ditch, canal or reservoir to any person, persons or association of persons or corporation owning any lands subject to irrigation from such ditch, canal or reservoir such person, corporation or association of persons owning such ditch, canal or reservoir shall have a preference lien upon the crop or crops raised upon the land thus irrigated under such lease or contract."

§ 527. Court Decisions Upholding the Right of Irrigation. The Supreme Court of the State of Texas has long recognized the right of appropriation for irrigation purposes. In the case of Tolle vs. Correth,1 decided in 1868, the Supreme Court even then recognized this right, and Mr. Chief Justice Morrell in rendering this opinion said: "We historically know that the lands in the western portion of the State are comparatively, in some seasons, useless unless they are irrigated. * * * The authorities cited from the distinguished Courts of New York, Massachusetts and England are founded on the principle or maxim, The water runs, let it run.' 'Every one has the right to have the advantage of a flow of water in his land without diminution or alteration.' A moment's reflection will enable any one to see the propriety of these maxims, where water is useful only in its flow, and is subservient to mechanical or manufacturing purposes. But in a country or State where water is useful for agricultural purposes, and where the sovereign power grants for a nominal consideration water for the purpose of irrigation these maxims do not apply; instead thereof we must substitute, 'Water irrigates, and let it irrigate.'

2

§ 528. Same.-Construction of Above Statute.-In the very recent case of McGhee Irrigating Ditch Co. vs. Hudson 3 the above quoted statute was attacked as to its validity on the

131 Texas, 362.

2 See also upon subject case of Fleming vs. Davis, 37 Texas, 173; Rhodes vs. Whitehead, 27 Texas,

310; Baker vs. Brown, 55 Texas, 57.

3 Texas, 21 S. W. Rep. 175.

ground of uncertainty. But the Supreme Court, in upholding the validity of the statute, said: "We think the law should stand as sufficiently definite and certain because the arid portion of the State to which the Act shall apply is indicated and defined by the first and second sections of the law.1 * * * We think the benefits of this Act are limited to that arid portion of the State where rainfall is insufficient and irrigation is necessary for agricultural purposes; and a party seeking its benefits must show this condition of things."

§ 529. Riparian Rights in Texas.-Riparian rights are recognized and protected in the State of Texas. The middle of a fresh water stream is the common boundary of the land owners on opposite sides. Although appropriation of water for the purpose of irrigation is permitted under certain circumstances it is not allowed when rights of riparian proprietors are injuriously affected thereby."

1 See ante Section 523.

2 Muller vs. Land, 31 Texas, 271; Rhodes vs. Whitehead, 27 Texas,

304; Baker vs. Brown, 55 Texas,

377; Fulton vs. Frandolig, 63

Texas, 330.

I. Subject Treated in General.

§ 530. Particular Features of Territory.-Arizona, the oldest irrigated region within the limits of the United States, where ancient and ruined systems of irrigating canals and reservoirs still serve as models for modern works, is to-day very much interested in the subject of irrigation. The agricultural and irrigable land is situated in the southwestern half of the Territory. We find through Arizona, from foothills to mountains, an annual average precipitation of from twelve to twenty-five inches of rainfall, and on the plains and mesas of the western and southern part the very low average of from three to twelve inches. Hence it follows for the greater part of the Territory irrigation is practiced as an absolute necessity to successful farming. In the lower plains the temperature is such that crops will grow and mature at any season of the year, provided there is a sufficient supply of moisture. Consequently in various portions of the Territory irrigation is kept up the entire year.

§ 531. Irrigation in Territory. The acreage at present under irrigation in Arizona may be regarded as approaching the maximum possible with the present supply of water and the methods of using it. All the available water in the natural streams and lakes has been utilized, and any extended area can be brought under cultivation only by greater economy in using the existing supply, or by the adoption of systems of storage for the conservation of the flood water now annually running to waste. There are a great many storage reservoir sites in this Territory, and irrigators are looking forward to this method as the most effectual means of obtaining relief from the troubles and uncertainties at present existing.

In most cases water is now applied by flooding, after the custom established by the Mexicans. This method is at best an exceedingly wasteful one where there is such a scanty supply of water; and it has been demonstrated in many cases where too much water is used that better crops could be matured by using the water more sparingly, which would also have the effect of increasing the area under cultivation.

II. Statutory Enactments.

§ 532. Water Rights in General.- Arizona and New Mexico may be considered as constituting a sort of a group somewhat separate and distinct from the other commonwealths of the arid region as regards the laws regulating waterrights. The legislation of the two Territories is somewhat similar, and follows the old Spanish and Mexican laws upon the subject. The fundamental rule by which the waters of streams are governed is to be found in the Territorial Bill of Rights, and is as follows: "All streams, lakes and ponds of water capable of being used for the purposes of navigation or irrigation are hereby declared to be public property; and no individual or corporation shall have the right to appropriate them exclusively to their own private use except under such equitable regulations and restrictions as the Legislature shall provide for that purpose."

1 Rev. Stat. Arizona, Sec. 2863.