The herald., 1893-10-10
1KKleAr1oN Laws OF ARIZONA.
A Historical Sketch of Water Legfsla
tinn In tho Sum X isaed Lhnd.

A Historical Sketch of Water Legtsla-
tion In the sun-Kissed Land.
By Hon. c. c. stephens, ex-Member OF Council,
Thirteenth Legislature.
On the 26th day OF September, 1864,
the first legislature of Arizona assem-
bled at Prescott, and after some pre-
liminary work ON the 4th day of October
following the legislature adopted bill
OF rights, the equivalent of state con-
sttution, wherein it was declared in the
22i article thereof, that "a!l streams,
lakes and ponds OF water capable of
being used for the purposes OF naviga-
ton or irrigation, are hereby declared
to be public property, and no individual
appropriate them exclusively, except
under such equitable regulations and
restrictions as the Legislature ehall pro-
vide for that purpose"
AT that time there were irrigsting
ditches in the southern part OF the ter
ritory being managed under the equi-
table Spanish laws, their con-
struction dating from prehistoric times,
and which had been in use by the
Spanish pioneer settlers for more than
100 years, notably those in the valley of
the Santa Cruz river at Tucson.
At the same session of the legislature,
November 10, 1864, code was adopted
and named from Its author, Hon. Will
liam S. Howell associate justice of the ter
torial supreme court. the Howell code,
| and the fifty-fith chapter is entitled "Of
acequias or irrigating canals" 1t con-
ssts OF 2S sections, and provides that all
rivers, creeks and streams OF running
water in the territory are public and
applicable to the purposes OF irrigation
and mining. 1t further provides. among
other matters, for public and private
acequiaH analogous to the common sys.
tenn of public and private roads, and
were to be constructed and maintained
in a corresponding manner. No dam
ages were payable for running the pub
lie aceauia through private lands if those
lands were benefited therefrom. In times
of scarcity of wster, the proprietors hav-
ing the oldest title to the lands had the
precedence in right of using the water.
A water overseer was provided for, to
see to keeping the bitches in repair, and
the impartial and proper distribution OF
the water. All disputes concerning the
ditche5, the use of the water, etc., were
summarily disposed of by the alcalde or
Justice of the peace, right OF appeal from
his decision being allowed; though to
the honor of the alcaldes it must be said
that such was the natural equity of their
decisions that appeals were almost un-
known. rhis chapter ia substant italy q
re-enactment of the Spanish Mex lean
rules and regulations in force prior
thereto.
Chapter 81 of said code, section 7,
also provided that the common law of
England, 80 far far as it was not repug-
nant to or inconsistent with the consti-
tuition and laws of the United States, or
the bill of rights, or the laws of our ter
ritory, is hereby adopted, and shall be
the rule Of decision in all the courts Of
this territory.
Some minor and unimportant amend
inents to this act were made by the
legislature OF 1887, but no impairment
or change OF its general scope of proceed
ure wac attempted.
In the legislature (13th) OF 1885 there
was some minor legislation in relation
to regulating unincorporated acequias
on the south side of Salt river, in Mari
copa county, providing for inflicting
penalties for refusing to work on the
acequias, making the work done in such
case lien on the land OF the person 60
refusing, giving Justices courts juriadic-