, 1888-04-22
WATER PRINCIPLES.
Judge Maginnis' Solution of the
Irrigation Problem.
Instances Where Water Was
Wasted, Not Used.
A Ditch Must Be Used for the
requirement of a Right.
Water Claimed by Persons Without
Title to Land.

Appended is substantially, in his
honor's words, the opinion delivered by
Judge Maginnis in deciding the famous
Beaver Dam ditch case. The principles
laid down will govern the distribution of
water in this district for many years:
AT the very outset [ was met by a
conumdrum which it is at this time i'm
possible to answer, and that is what
amount of water it requires to irrigate
one acre of land? Irrigation being in its
infancy in this territory, there has been
no such amount of experience by any one
person or number of persons as would
Justify them in setting up aver an approx
innate standard, aud the soil being differ
ent from that of Colorado no proper
comparison could be made between the
two districts. This being the case, the
only standard which the court could
adopt was the standard of the number of
acres of ground which each man is emit
tied to irrigate.
bitches have been taken out at places
upon the creek where they should not
have been taken out by reason of the
character of the bed of the stream.
They have been carried in some instances
over miles of sandy ground which alb
serbs an unreasonable amount of water;
in other instances they have been carried
miles further than any reasonable n~ecessi-
ty would Justify. Large amounts of
water have been appropriated, or sought
to be appropriated, which the creek
would either never furnish, or if fur
nished, no use could be found for the
water.
AS [ take it, tie rule of priority for
appropriation of water, depends upon its
appropriation coupled with its reasonable
and economical use for a beneficial pur-
pose, and | do not think that the matters
to which l have called attention could be
considered as falling within what might
be termed an economical and reasonable
use.
Another matter which has been called
to my attention in this case, has been the
building of large bitches through which
no water has run, but by reason of which
the parties building them have filed
claims to large amounts of water. Moth
ing in my mind, can be clearer than that
in order to obtain a right to water, a per-
son must not only make preparation to
appropriate it, but must within a reason
able time actually use it.
Another difficulty which l have met
with in several of these cases is this:
The steps necessarily incident to an at
tempt to appropriate water must be per-
sued and carried out with reasonable dill
gence. 1t has been held that financial
Inability will not excuse a suspension of
the work, nor will mere inability to secure
assistance excuse its suspension. Only
something in the nature of physical i'm,
possibility will Justify delay in the prose
cution of the work.
| am satisfied that there are and always
have been in this country. three different
classes of beneficial uses. The first in
a general way, might be termed the use of
water for domestic purposes. The second,
the use of water for irrigating or agricul-
tural purposes, the third, the use of water
for manufacturing or mining purposes. |
am satisfied that preferences exist between
these classes of beneficial uses. and that
such preferences run in the order in which
| have named them.
L have found some very great discrep-
ances between the sworn statements of
parties, filed in the clerks office, and the
sworn answers filed in this case, and the
evidence offered by them. Wherever the
evidence tends to show an earlier date of
appropriation or a larger acreage thar set
out in the statement or answer, and such
difference was not satisfactorily explained,
L have held the party bound by his
sworn admissions in the statement or an
swer. Where however, the evidence tended
to show a later date or a smaller acreage
than set out in the statement or answer,
l have permitted the evidence to govern.
In several cases where water has been
claimed for land to which the party has
no possible shadow of claim, | have only
allowed such an amount of water as
would irrigate the lands owned or claimed
by the party, upon the idea that mere &C.
cupancy OF government land unsupported
by any claim of title will not Justify an
appropriation of water.
II desire to call attention to the loose.