Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-06-28

| reservoirs, In other words what is Con-
| tomplated Is the condemnation Of the
| means by which the storage and dis
| tribution Of surplus waters may be-
| effected. and not the condemnation of
| an accrued water right. That this Is
| true Is 80 apparent from the mere read
| Ing Of the bill t1at any extended discuss
sion of IL, In NY judgment, would be
| waste Of time
But II IS said that the Federal gov
| eminent has no power 20 exercise the
| right OF eminent domain for such pur-
| poses Elsewhere In the minority re-
| port IT IL contended that the Federal
| government has no constitutional power
to expend money for the purpose of re-
| claiming It's lands az all, but IL is adj
| mitted that II such power exists, then
| the power OF eminent domain necessar-
| lily follows. / shall undertake to show
little later ON that the general con-
stituu0nal power does exist, which, ac-
cording TO the admission Of the mi
norlty report, win demonstrate the ex-
,stence as a necessary corolary Of the
right 10 condemn
But The general government may eX-
afcise This power by reason OF It's pro-
prietorship Of the lands Being the
proprietor and owner OF a vast amount
of land in the various states, il has
the right under the laws of those states
To do whatever any other proprietor
might do. Every one of these arid
land states by express statute and Of
ten by provision Of It's constitution, de-
Clares that the irrigation Of lands Is a
public use and that the rights Of emin-
ent domain may be exercised therefor.
Take, as illustrative, my own State
Of Utah In the first state legislature
of 1926 a law was passed which | had
the honor Of introducing which de-
clares In 30 many words that the cult
walton and irrigation of the soil is q
pursuit in which all are interested and
from which all derive a benefit, aud
the irrigation Of land Is declared to be
for the public use, and the right Of
eminent domain may be exercised In be-
half thereof
Under well-settled rules what may be
a public use In one state may not be
in another The extent and importance
Of the industry Is to be considered. II
was held IN Nevada IN an early case,
where the subject is treated with great
learning that the mining Industry be-
Ing the paramount industry of the
state, upon which the body of the peo-
pie directly and indirectly In great
measure depended, the condemnation OF
lands for mining purposes was public
use. These statutes In the various arid
land states have been upheld as valid
wherever they have come before the
courts, Under them the right OF
eminent domain may be exercised by
the citizen for the condemnation of
rights of way for canals bitches and
reservoirs Indeed, In the absence OF
all statutes It may be very well argued
Ihat the right would exist
The old doctrine OF riparian rights.
one Of the Fixed rules q the common
law, has no application TO the arid
region 1t has been abolished by eX-
press statute In many states. hut II Is
held In other states TO be as effectually
abolished in the absence Of statute
Such a rule can have no APP
plicatlOn TO the arid region where
the diversion of water from the
streams, even to the last drop.
Is Of imperious and overwhelming
necessity. and so II was early held that
the reason upon which the doctrine Of
riparian rights was founded having
ceased, the rule itself ceased with Il.
In view OF this necessity for the d.
version OF water II may be well in
sisted that the right to convey water
across the lands Of another exists in the |
absence of statute. As was well said |
by the supreme court of Colorado In |
the case Of Schilling vs. Rominger a |
Colo, 1000:
Primarily. where the climatic condi- |
tons are such as exist In Colorado, the |
right TO convey water for irrigatlng |
purposes over land owned by another is
founded upon the imperious laws OF ma |
ture, with reference TO which Il must '
be presumed the government parts with |
its title. And although a patent may |
be silent In regard TO conditions which. |
II expressly named, could have no |
greater force, Il can not be asserted |
that therefore they do not exist. Sub
Ject TO regulation by statute and rest
ing upon the law OF nature, II Is con-
ceived that the right to convey water
over another's land Is inseparable from
the enjoyment Of the land which the
United states conveys 20 its grantees.
This right passes with the land as a
necessary incident"
But even II II were true that the fed.
eral government has no authority TO
exercise the power OF eminent domain,
that affords no reason for voting
against this bill II the court should
determine that that particular proyis-
on Of the bill is imperative and n II
we're necessary In some particular en-
.erprise 10 make use OF private proper
~, and the government could not ac-
luire the title by purchase then Il
would simply result IN the failure Of |
hat enterprise. Everybody knows that
all the unapproprlated |
waters rise In the mountains upon pub
ic lands. The reservoirs which are 10
De constructed for the purpose Of Inn
the surplus waters will be
constructed upon the public domain, so
he main canals which II may be neces-
AIRY TO construct viii almost always
,e on the public domain. 10 will rarely
'ecome necessary to use private prop
rty in connection with these works
/ have. speaking for myself. no doubt
whatever as 20 the validity Of this pro-
lsion In the bill. but II II should turn
MT that this view is a mistaken one,
he effect upon the general scheme Is
I so little consequence that Il is
carcely worthy Of consideration.
DOES NOT AFFECT VESTED {
RIGHTS.
II Is further objected that the power I
the secretary is not limited 10 the $
etention Of surplus waters. | have al a
aady undertaken 90 show that Il is O
When citizen has made an appropria- c
on Of water for beneficial use. u b.. e
omes his property as fully and COM 3
letely as the land which he holds by $
atent from the UniteG States This b
~ does not attempt 10 confer upon u
ne secretary Of the interior the power q
} deprive him Of his vested rights. II
ould be absolutely void and worthless q
II did. a
o CONFLICT BETWEEN NATION q
AL AND LOCAL CONTROL o
But IL is said that the bin contains O.
provisions that IL contem- \,
ates a decided control that as soon "
! a major portion OF the lands 10 be A.
rigated under any particular enter Ia