The Florence tribune., 1900-07-21

ShlP aHu PtiHdtc opcculhLlOH, anu bnHJ the right to its use does not inhere in the land irrigated, but vests in the appropriation, who becomes the owner of the water as speculative commodity, which he has right to sell to the farm CT for all he can get for it.
 Now, this theory of the law of water is inherently and irrevocably antagon- istic to the national irrigation move ment, and in my judgment, if it should become the established law of any state or territory, would make 1t impossible to secure continuing na- tional appropriations for irrigation development in that state or territory. The people of the east, in other words, would rather permit the arid lands in such state or territory to remain Il desert than to store water ut govern ment expense for the benefit or pri- vate profit of individual appropriators or canal companies.
 On the other hand, if the opposite theory of the law of water prevails in any state or territory, and under the constitution and law of such state the use of water for irrigation is made a public use, and the right to the use of water for irrigation vests in the user and haconaS appurtanont fo fba land irrigated, and beneficial use is the basis and the measure and limit of the right, as is the law in some of the western states to-day, then and in that event, in states or territories where that is the law appropriations can be made by the federal government for water storage without any possibility of the stored water being made the subject of water nonoply by private appropriators or canal companies.
 In other words, in such states or. territories, the ownership of the land and the water will necessarily be united, and the right to the use of the stored water for irrigation will vest in the land irrigated, and those who till the land will get the benefit of it, and from broad and statesman-lilze point of view, the crea- tion of new water supplies by govern ment storage will be nothing more nor less than the creation of so much new territory and its annexation to our national domain, with all the attend ant benefits of increased prosperity and population and national wealth and resources.
 This doctrine is now the law of Wyoming, and as I contend it is now the law of California and some other western states, although in California, as in Arizona, legal controversy is now pending in which the question is involved. send you copy of peti- tion for rehearing filed by me in a case in the United States Circuit Court in California, which wish you would read carefully and then return to me, as it is my only copy. believe it will be worth your while to give it care ful perusal, because it outlines the theory of the law under which the ownership of the land and the water is united in states where the source of a right to water for irrigation is ap appropriation under the statute, as in California or Arizona, instead of a grant from the state, as in Wyoming.
 It must not be assumed, and most em- phatically is not the case, that under such Q law as this the rights of any canal company are jeopardized. I contend, and believe that any fair minded man can be satisfied, that the rights of a canal company under such legal sys- tenn are safer and better protected than under the theory of the law which would vest the ownership of the water in the canal company instead of in the  land. Where the ownership of the right to the use of the water vests in the land irrigated, the canal company is public carrier of water, entitled as such to every protection of the law, and entitled to charge and collect rate which will yield fair and reasonable revenue on the value of its pro perty.
 I enclose copy of an extract from Hands of the Arid Region of the United Sta.es," Q government publi- cation issued by Major J. w. Powell in 1879, but prepared in 1878. The quotation is from page fl. If anyone would read this in the light of future events and of the turmoil and trouble that we have had in California and of the litigation that you have had in Arizona, and read what has been writ ten and published in the last few years by Elwood Mead of Wyoming in favor of the united ownership of land and water, and read my address at Phoenix last December, think they would become fully converted to the idea that the only policy under which the