The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-01-27
FARM AND GARDEN
APPROPRIATION OF WATER.
The laws Governing This Import
ant Subject.
BY RAY VAN COLT.

The Laws Governing This Import
ant Subject.
BY RAY VAN COLT.
1t may be proper to mention the fact
at the outset, that there is no neces-
sity that the appropriation shall hold
the title to the land in order to protect
him in or secure to him the water gain
ed by 2 prior appropriation. His land
may be situated at great distance
from the stream out of which the APP
preparation is intended to be made.
Yet if the intervening land is part
of the public domain, the appropriation
can construct his ditch or canal across
such lands with the full assurance that
mis- rights viii be fully protected. But
if the intervening land is owned by
private persons a different question
presents itself, and one which will be
considered hereafter. The purpose of
this paper. as was stated at the close
of the former article, is to present in
q very brief way the question of how
an appropriation of water may be
made. 1 shall, therefore, proceed i'm
mediately to a consideration of the
same
One Of the first and most highly es-
Sential requisites to a valid appropria-
ton is that the appropriation must
have a present bona fide intent to
apply the water to an immediate bene-
fetal use. or such a present bona fide
intent to apply the water so apprO-
priated to such beneficial use or pur-
pose in the future. If, therefore, there
is no bona fde intention in the mind of
the would-be appropriation, at the time
of the appropriation, to put the water
TO beneficial use or purpose or if
he does not contemplate future appro-
prlanon for such purpose, his at
tempted appropriation will be wholly
invalid. The purpose for which the
water is intended may be mining man
Ufacturing, milling, irrigating, agrfcul-
tural, horticultural, domestic or anv
other like industry. There is nothing
which will prevent a company from d.
Verting the water of a natural stream
or lake to a beneficial use, and then
sell the same 70 persons who apply it
to such use.
The wisdom of the rule requiring the
bona f1de intent of the appropriation is
so clearly manifest 20 every mind that
it needs but little comment. In a re-
gion of country like our own. where
the supply of water is limited and
where its use for the purposes of ae-
riculture and mining cannot be dis
pensed with, it is absolutely necessary
that no person shall be allowed to di-
qualification Of greed. curiosity
or merely speculative purpose.
The second requisite to a valid and
complete appropriation is that there
must be an actual diversion of tbe
water. SO long as the water continues
to flow in its natural bed or channel
no one can gain a private property or
exclusive ownership in the same. For
If the land through which it runs be-
longs to the government, the water
also belongs to the government as part
and parcel of the land And if there
are riparian owners upon the banks
of the stream the right to the use of
the water belongs to them But when
a person has diverted water and has it
actually flowing in his bitches or
canals. or stored in reservoirs his
power over and right to control the
same have become absolute and exclu-
sive
In diverting the water it may fire.
quently be necessary to construct
fumes for the purpose of bridging
ravines and gulches over which the
ditch or canal is to pass. Such fumes.
in all legal respects constitute Dor
ton of the ditch or canal for they are
aeemed connecting links Of the same /
1t is not at all necessary that the /
ditch or canal shall be wholly artificial !
for whenever ii is convenient the ap-
proprietor is at perfect liberty to avail
himself of the natural ravines and I
gulches for the purpose of making the I
diversion. He may always use dry /
ravines or gulches as part of his ditch |
or canal system, and it has even been
held by some courts that he may use |
q portion. of the same channel from
which the water was diverted. Of
course this portion of the channel will |
always be below the point of diversion
and whenever the water is thus turned
back into the original channel. it must /
he done with the clear intent in the
mind of the appropriation 10 retake II /
again But this, it seems to me. is.
at best. a dangerous practice. for if
his right to the water, thus turned
back were aSSailed by a bona fide an
proprietor, the burden of proof would.
no doubt, fail upon the prior appro-
priator and he would have to show
that he had clear intent to retake
such water at a lower point on the
stream. To prove such intent might
IN certain instances, be quite difficult
Another essential to a valid appro-
priation is that the water diverted
must be applied to a beneficial use or
purpose. The constitution of the state
Of Utah in article XVII, section 1, ex-
pressly provides that ''all existing
rights to the use of any of the water in
this state for any useful or beneficial
purpose. are hedeby recognized and
confirmed" We then see that the fun
dadnental law OF the state recognizes
and confirms only such water rights
as are founded upon the application of
the water to ussfuI or beneficial pur-
pose. In the case of Monroe VS.. Ivie.
which wss decided by our supreme
court about the year 1880. and in which
was involved the question of appropri
alton. the court speaking through
Judge Foreman said: Water is some
thing that the appellants could not
control IN any other way than by ap-
precipitation. They could not 90 and