El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-11-05
A CELEBRATED CASE.
Continued from Third Page.

and new rules had grown up unde
local legislation and customs, NOR
nearly analogous to the civil law. IL :
cognizing 'tnat the public domalI
could not be utilized for agricultural
and mining purposes without the us'
of water applied by artificial mean
and that vast interests had grown vi
under the presumed license of the
federal government to the use OF sucf
waters, congress confirmed the riga
of prior appropriation OF waters oy the
act above mentioned where the same
s'sre recognized and acknowledged by
the local Gu toms. laws and decisions
of the courts" Sec. 2339) The
supreme court of the United States II
passing upon this act observes, ut i;
evident that congress int nded, al
though the language usedis not hap
DIV, to recognize as valid the Gus omary
law with respect to the use OF the
water which had grown up among the
occupants of the public lands under
the peculiar necessities OF their conoi'
tion." Atchison VS.. Peterson ~ Wal
5O7; Basay vs.. Gallagher 20 Wal. OIL
And sincs 1870 patents for land express
ly except vested wafer rights. vi
course congress may resume Its con-
troll, but there can be no presumption
of an intent to take them out OIL
local control and resume regulat1ve
power from doubtful expressions. H.
peals by implication are not SO favor
ed. Congress could undoubtedly
preserve navigable streams by legis-
iatinp against the use of their con-
fiuents. But that power could not be
exercised against those private rights
which have become vested, unless un-
der the power of eminent domain COM
pensstion be paid therefor
Instead of an intention to resume
such control, congress has manifested
a purpose to extend the largest liberty
of use of waters In the reclamation OF
the arid region, and under local re-
Rulative control. Following IN line
with the act of 1866 the act of 1917 au-
thorized the entry of dc sert lands in
the arid region by those who intend to
reclaim them by conducting water up
on them. This act again distinctly re-
cognized the validity of the right o.
prior Apr OpriatiOn and also PROVIDED
that cali surplus water over and above
such actual apprCp' iation and use TO-
gethsr with the water OF al! lakes,
rivers and other sources OF water
supply upon the public lands and moi
navlgable shall remain and De heIo
free for the appropriation and use oil
the public for irrigation, mining and
manufacturing purposes subject TO ex-
listing rights" This act was limited
to states and territories in the arlo
region. Il Sup. r. S. p. 49, Colo
RADIO was included in 1891. Il Sup. X. 5.
249-4l.) BY the act of 1883 ian ap
preparation billy an investigation was
directed Is to the extent TO whlch the
arid region might be redeemed by lr-
rigation; it provided for the Selection
of sites for reservoirs for the storage
and utilization of wa.er for irrigation
and the prevention of overflows, ana
that the lands designated for reser-
voirs, bitches or canals, and all lands
susceptible of irrigation there1rom be
reserved from sale or entry. II Sup
r, S. $751; In 1890 the reservation
from sale or entry of lands except as to
reservoir sites. was repealed-ressr-
yoir sites remained segregated. II
Sup. r. S. 791-I92.) In the same year
it was provided that patents for lano
West OF the Tooth meridian should re-
serve the right of way for bitches and
canals. Il Sup. II. 5. 792 In 1891
public lands were opened to private
location for the right-of-way to the eX-
tent of the ground occupied by the
water OF the reservoir, canal and lat
terals and SO feet on the margin. in
this act it was provided that 1.-THE
herein granted shall not be
construed to interfere with the control
of the water for irrig alton and other
purposes under authority OF the re-
spective states or territories" Il sup
3. S. 946 On the 26th day OF Feorua-
ry 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 au-
Shorized to prescribe rules and regula-
tions and fix water charges.
From these acts two things are man
fest. that Q) the use of the water for
Irrigation purposes was authorized;
and l2) that the local laws should gov
ern the use of that water for such pur-
poses.
In harmony with this use the inter-
Tor department holds that in granting
the right-ot-way tor reservoirs and can
AIS it does not and can not assume to
detepmine or prescribe water rights,
and that the flow and the use OF the
water is a latter exclusively under
state or territorial control, Decisions
Interior Depart. Vol Is, 16S.
''Ehe region in which agriculture de-
pepds on irrigation includes about four
tenths of the entire area of the United
States, not including Alaska" Report
Of Dire ctor GeOlg Sur. to Sec. OF Inter-
Tor. Mar. 10, 1888. Throughout the
vast tract classed as the arid region ex-
tending west from about the lOOth par
Allel there Is little or no use VI Wauei
for navigation, but the cultivation OF
millions Of acres of land is necessarily
dependant upon the use Of it: The The
authority to grant permission 10 olVert
waters for such purpose Is NOT given to
the secretary OF war, neither is it Civ
go TO anyone else. Yet if such water
can not be diverted millions OF acres
now in cultivation must De turned back,
= waste country, or the cultivation
continued in violation OF law, civil and
criminal. These may be said to be
Opsiderstions of policy with which the
courts have nothing to do. Ii the law
be clear this is undoubtedly true and
the courts must administer it; but in
sseertsining what the law is we cannot
refrain from examining the path we
are invited to pursue. The hardships
and Inconvenience which would re-
suit, not simply in an individual case,
but from the establishment OF rule. Is
an argument against it. And after all
there is much soundness in the obser-
vstion of one of the foremost OF Ameri-
can iurists, that the growth of the law