tion to take possession of such property if it shall have paid into Court the compensation assessed. Specific rules are then laid down for perfecting the appeal and trial of the case, and the section closes as follows: "The damages awarded to such owner or owners shall be paid into Court for their use and benefit, and shall be paid over to such owner or owners or to his legal representatives or assigns on demand. Said Court shall also be open for the transaction of the business provided for in this section and shall transact the same with all reasonable dispatch."

Sec. 25 provides that no corporation shall have the right to divert the usual and natural flow of water of any stream which by law has been declared a public acequia for any use whatsoever between the 15th day of February and the 15th day of October of each year, unless it shall be by the unanimous consent of all persons holding agricultural lands under such stream or public acequia to be irrigated by the water furnished by said stream or public acequia; and that no incorporation of any company shall interfere with the water rights of any individual or company acquired prior to the passage of the Act.

$546. Establishment of Water Rights. On February 26, 1891, there was approved "An Act to provide a method for establishing the rights of appropriation of water for ditches, canals or feeders of reservoirs, and requiring registration of all such hereafter made, changed or enlarged."1

Section 1 provides: "That every person, association or corporation hereafter constructing or enlarging any ditch, canal or any feeder for any reservoir and taking water from any natural stream, shall within ninety days after the construction, change or enlargement, file and cause to be recorded in the office of the probate clerk of the county in which such ditch, canal or feeder be situated a sworn statement in writing, showing the name of such ditch, canal or of the reservoir supplied by such feeder, the point at which the head-gate is situated, the size of the ditch, canal or feeder, both in width and depth, the carrying capacity in inches, the description of

1 Stat. 1891, p. 130.

the line thereof, the time when the work will commence, the name or names of the owners thereof, together with a map showing the route thereof, the legal subdivisions of the land if on surveyed lands, with proper corners and distances, and in case of an enlargement or change the depth and width, also the carrying capacity of the ditch so enlarged or changed and the increased capacity of the same thereby occasioned, and the time when such change or enlargement was commenced, and no priority of rights for any purpose shall attach to any such construction, change or enlargement until such record is made."

§ 547. Exemption from Taxation.-Riparian Rights.On February 13, 1893, there was approved an Act providing that all irrigation ditches, canals and reservoirs thereafter constructed for irrigation purposes shall be exempt from taxation for the period of six years from the commencement of such construction; and all irrigating ditches, canals and reservoirs theretofore constructed, the extent, carrying capacity or water supply of which has been increased by enlargement, shall be exempt from taxation for six years from the commencement of such enlargement.

The Supreme Court of New Mexico, in the case of Trambley vs. Luterman,1 held that the common law as to the rights of riparian owners was not in force in that Territory. And it will also be noticed by a study of the statutes enacted in that Territory upon the subject of waters that they entirely ignore riparian rights.

1 New Mexico, 27 Pac. Rep. 312.

1. Subject Treated in General.

§ 548. Particular Features of State.-Irrigation.-Montana is the most northerly State of the arid region. In the northwestern part of the State crops are often raised without irrigation, hence this corner may be said to lie in the subhumid region. In many parts of the State the rainfall in some years is sufficient to bring the crops almost to maturity, and often only one watering is required. However, the grain may be nearly ripe when the hot dry winds sweep down upon it, and if water is not then at hand in abundance all the past labor will be a complete failure. This one watering is as essential to the success of the crops as are the three or four waterings of the more arid sections, for without it the crops are ruined. The mean annual precipitation for the entire State is about fifteen inches, varying greatly, however, with the altitude of the locality, the high summits receiving thirty inches or more, usually in the form of snow, while the lower plains receive only ten inches or even less.

Throughout the entire State, as a rule, the construction of ditches and irrigating works has been of the most temporary

character, although there are a few well built canals made at great expense. Most of the irrigated area is covered by ditches dug by the farmers, without preliminary surveys. Unquestionably more water from the streams would be available for use if the waters were turned out into one or two large carefully prepared canals instead of a great number of small irregular ditches. The building of great systems of storage works would also save the great volume of flood water in the spring, which now runs to waste.

II. General Statutory Enactments.

$549. Irrigation Laws.-In General.-The present condition of irrigation development and of the control of the waters of the State is by no means satisfactory to the farmers, and most of them look forward to sweeping improvements in methods and in legislation. As the matter now stands the additional area being brought under irrigation is rapidly increasing in spite of the fact that along nearly all of the smaller streams the present area attempted to be irrigated is in excess of the amount that can be successfully watered from those streams. The older settlers, who legally should have the right to the water to the extent of their appropriation, complain that the larger ditches taking the water out at points higher up the stream are encroaching upon their rights. And if they purchase the water from the ditch companies complaint is made that the charge of the company is a great burden. On the other hand, the ditch companies complain that they are not making what they should from their investment.

§ 550. Rights of Persons and Corporations to Water.The statutes of Montana 1 provide "That any person or persons, corporation or company, who may have or hold a title or possessory right to any agricultural lands within the limits of this Territory, as defined by the organic Act thereof, shall be entitled to the use and enjoyment of the waters of the streams or creeks in said Territory for the purpose of irriga

1 Compiled Statutes of Montana, 1887, Secs. 1239–1259.

tion and making said land available for agricultural purposes to the full extent of the soil thereof."

All surplus water left by the prior appropriator must be turned back into the stream within five days after demand is made upon him, in writing, by any person having a right to use such surplus water.

The statutes provide for a right of way for ditch or canal purposes, said right to extend only so far as is necessary.

Sec. 1242 provides that all controversies respecting the right to water under the provisions of this article shall be determined by the date of the appropriations as respectively made by the parties. The Act also provides that persons digging ditches for the purposes of irrigation are to be liable for all damages to parties injured thereby.

Sec. 1249. In all controversies respecting the right to water, whether for mining, manufacturing, agricultural or other useful purposes, the rights of the parties shall be determined by the dates of the appropriations respectively, with the modification existing under the local laws, rules, customs and decisions of the Supreme Court.

§ 551. Right of Appropriation for Beneficial Uses.-On the 12th of March, 1885, there was approved an Act which for the most part simply put in statutory language the principles which had previously been laid down by the Supreme Court of the United States and by the Courts of that Territory. The substance of this Act is as follows:

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"Sec. 1250. The right to the use of running water flowing in the streams, canyons and ravines of this Territory may be acquired by appropriation."

The following sections provide that the appropriation must be for beneficial purpose; that the place of diversion may be changed; that water may be turned into another stream and mingled with its water and then reclaimed; that as between appropriators the one first in time is first in right; that anyone thereafter desiring to appropriate water must post a notice

1 See Stat. 1885, p. 130, Compiled Stat. 1887, Secs. 1250-1262. 2 Notice of appropriation must

be liberally construed. Floyd vs. Boulder Flume and Mercantile Company, 11 Mont. 435.