El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-07-03

pective states or territories" Il Sup.
II. S. 946.l Ga the Goth day of February
1897 congress opened the reservoir
sites reserved by the government I'M
der the act of 1891, to private location:
and the local legislatures were author
lied to prescribe rules and regulations
and fix water charges
From these acts two things are mani
fest, that: ~ The use of the water for
irrigation purposes was authorized; ana
(2) that the local laws should govern the
use of that wat n for such purpose.
In harmony with this use the Interior
Department holds that in gran ting the
right-of-way for reser voirs and canals
it does MT and cannot assume to deter
mine or prescribe water rights, and
that the flow and the use OF the water
is matter exclusively under state or
territorial control. Decisions Interior
Dept vol Is, 16S
"The region in which agriculture de-
dends on irrigation includes about four
tenths of the entire area OF the Y nlted
States not including Alaska" Kept OF
Director Geolog. Sur. to Secty. OF In
J terror, March -, 1888. Throughout the
vast tract classed as the arid region
extending west from about the 1OOth
parallel there is little or no use OF
waters for navigation, but the cultiva-
essarily dependent upon the use OF 1T.
The authority to grant permission to
divert waters for such purpose is not
| given to the Secretary of War, neither
| ia it given to anyone else. Yet If such
water cannot be diverted millions of
acres now in cultivation must be turned
back. a waste country, or the cultlva-
ton continued in violation OF law civil
| and criminal. These may be said to be
considera lions of policy with which the
courts have nothing TO do. Ii the law
be clear this is urd GU btedly true and the
courts must administer it; but in ascer-
tanning what the law is we cannot re-
frain from examining the path we are
invited to pursue. The hardships and
Inconvenience which would result, not
simply in an individual case, but
| from the establishment of q
rule, is an argument against It,.
And after all there is much sound
ness 10 the obser walton of one of the
foremost of American jurists, that the
growth of the law is in truth legisla-
tive. 1.-THE very considerations which
judges most rarely mention, and al
ways with al apology, are the secret
root from which the law draws all the
| juices of life. l mean of course con-
siderations of what is eXpedient for the
| community concerned. Every lmpOr-
tant principle which is developed by
litigation is in fact and at bottom the
| result of more or less definitely under
stood views of public policy; most gen.
orally, to be sure under our practice
and traditions, the unconscious result
| of inst inc tive preferences and 1nart1cu-
late convictions, but none the less
traceable to views of public policy 10
the LAST analysis" Holmes Com. Law
Lee. |, p 30. The Genessee Chief case
is an illustra tion of ,this. There the
court disregarded the arbitrary distinc-
| ton in respect to the ebb and flow OF
| the tide suitable to conditions in Eng
land and which had been followed in the
{ arlier cases in the United States, and
it was held that the admiralty and
maritime jurisdiction of the United
States extended to the great lakes and
rivers without limit to the tide, and
| that this jurisdiction was not founded
upon the clauses of the constitution in
| respect to regulating commerce, but
solely by virtue of its admiralty and
maritime power. The English rule
| was appropriate enough until the APP
plication of steam power TO navigation
opened the great rivers to commerce.
| IL Howatd d $50
Considering the discussion in con-
gress, the reports OF CO rnlttees, and
the labors and reports of officials in
the interior and war departments made
under congressional directions, it
seems quite manifest that the purpose
| by the federal government to hold and
further redeem the great arid region
mad become the recognized policy and
measure of the highest public lmpor-
lance and necessity. 1t would
seem that at first it was
the design to establish and
maintain an elaborate system of irri-
cation at public expense, but the i'm
mense cost OF such an enterprise seems
to have induced its abandonment, tenn
porarily al least, and in its stead an
other system has been provided by ir-
rigatiOn al priv ate cost. The system
may BE- Incomplete in many of its de-
tails, but such as 1t Is, reservoir sites
have been located, surveyed and es-
tablished alOIg the streams, nav1gable
and nonnavigable, under the imme-
diate direction of government officials
and by authority OF congress-, and the
right to make private entries OF others
under the supervision of the secretary
of the interior is also authorized.
The ruins of extensive irrigation sys-
TENS scattered all over New Mexico
ard Arizona of a prehistoric people
show that conditions which have CON-
frOnted the present age We're cOndi-
tlons encountered in the remote past
and apparently overcome. The Guilt
tlvation of the Rio Grande valley by
acequias from the river is mentioned
by the earliest of Spanish priests and
explorers, and is established by au-
thentic historical memorials extending
back more than two centur les. The
law of prior appropriation existed I'M
der the Mexican repu olic at the time
of the acquisition of New Mexico, and
one of the first acts of this government
was to declare that, The laws hereto
fore in force concerning wafer courses
= y shall continue in force" Code
proclaimed oy Brig. Cen kearIey
Sept. %, 1916. One of the first acts of
the local Legislature Us p after the
organization of the territory, provided
that, ''All rivers and streams of water
in this territory formerly known as
public bitches or acequias are hereby
established and declared to be public