The Yellowstone journal. [volume] (Miles City, Mont.) 1893-1901, 1894-03-29

plying water to any adjacent land owner
who may desire it. rheaerer there is q
surplus Of ~dter .fowing in the canal.
the beneficial nse of uhich is not already
disIosedof to some one Orning land along
the ditch. rho is using the pater for
proper purpose. as for the purpose of
irrigating his lands.
Having acquired the right to the bene-
ticial use Of water, the proprietors of a
canal may dispose Of it in any manner
they see fit, and at any price they may
fix, provided only it be reasonable and
equitable. Thus the proprietors OF a
canal will not be permitted. even in
the absence of statutory regulations, to
fix an extortionate price. which practic-
ally means the prohibition Of all use of
the water. for no man can-be permitted to
do indirectly that which the law prohib-
its him from doing directly. In the
absence Of a statute governing, it is
thought that the price charged for water
must be an equitable one: in other words,
such an one as will yield profit on the
investment, and enable the farmer to
pay the rental, and yet secure a fair re.
turn for his labor. In Montana it is
provided 10y statute that the county
commissioners may fix the price to be
charged for water. As a general rule,
however. canal proprietors prefer to fix
such price for the use Of the water
flowing in their canal that there will be
no occasion for the interference Of the
public officers.
a canal company which has been sell
ing a right to the beneficial use of its
water at stipulated annual rental may
at any time change the method OF dis
posing Of such use. and charge a fixed
price for permanent water rights in ad-
dition to a specified annual rental so
tong as they do not thereby impair or
interfere TH any rested rights Of the
OrRers of land uHder the canal. They
may not only do this. but they may also
require that the water rights be taken
within a certain time. and if they are not
taken within that time by the owners of
the lands under their canal. give notice
that they will sell such water rights to
any other person or persons, or that they
will even refuse to sell them TO any one.
1t is thought that the only effect such
proceedings would have upon any owner
Of lands under the canal would be to
subject him IL the liability of losing his
right Of priority use. and il the appro
priation OF water was not sufficiant to
supply all the lands under the canal he
might be cut off entirely of any right to
participate Of the beneficial use Of such
water. Where water is flowing in a
natural channel, the law is that "he who
is prior in time is prior in right" re-
gardIess OF his location on the banks of
the stream. An irrigation canal is mere.
ly an artificial channel or stream flowing
through the land. and the same rule ap-
plies first in time, first in right" a.
But it is thought that so long as there is
water flowing In the canal. the right to
the beneficial use of which is not sold
and actually used. the land owner failing
to take out water right for his land
will be entitled to the use of as much OF
such surplus as his land may require.
provided only there be so much. upon
the payment Of the fixed rental therefor.
1t 10 a common practice with canal
m nil tn MI b No
floating water rights" So far as the
writer is aware. the legality Of such sale
OF water rights has never been raised in
any adjudicated case and the status OF
the holders Of such water rights iudici-
ally determined. On principle, however,
it would seem that such speculation in
water rights is a hazardous enterprise.
where the purchaser is not an owner or
holder of the land under the canal which
may bc benefited thereby: for while
water used Ia IL rIgating land is in many
respects different from unappropriated
water flowing in a natural channel
through the land, and has been said not
TO be appertaining To sthe land, l6) yet
under an order from the county commits
sioners, who by law are designated to
| fix water rentals, the land owner who
did not obtain water right may still
obtain water; % and in the absence Of
statutory legislation on the subject. the
company would be held, at common law,
to have submitted itself to reasonable
judicial control, invoked and exercised
for the common good. in the matter Of
regulations and charges; and an attempt
to use it's monopoly Of water for the pur-
pose a coercing comPaiancs with un,
reasonable and extortionate demands
would asy the foundation for judicial in.
reference, and mandamus would is-
sue. 49,
From this it follows as corollary
that IL a person who has been taking
water from a canal company At a slip.
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