, 1903-11-12

IMPORTANT WATER RULING
Water Cannot be Procured by Purchase
But Must be Appropriated Under
State Laws The Rule to be Rigidly
Enforced.

enforced.
Cheyenne, Wyo., Nov. ., 1903.
Hon. J. f. Crawford, L. s. Com'r,
Saratoga, Wyoming.
Dear Sir: My attention has e
Gently been called to a number of
transactions involving the sale of
water by private parties. The Ir-
rigation Law of the State pre-
scribes a method whereby water
rights can be secured for lands,
and the title goes not to individ-
uals or bitches but to such lands.
This provision of the law not only
protects the purchaser of lands
who has a valid right to water, but
it guarantees the rights of other
appropriations from the same
stream.
The State Engineers office
keeps informed as to the water
supply afforded by the various
streams and when this supply is
exhausted, further diversions are
prohibited. Owners of bitches
are liable to, and do, confuse prop
erty rights in such with rights to
use water. That water belongs to
the lands irrigated has been but
slowly recognized, although the
law containing such provision has
been in force for thirteen years.
When a stream is adjudicated, the
lands irrigated are practically all
patented. The State extends a
title for water to such lands as
have been irrigated, provided
proper diligence has been shown
in retaining them. The outly-
ing government land is often filed
on under the Desert act, and the
problem which concerns both the
officers in charge of this Act and
the State Engineers Office is as to
the method of obtaining a water
right therefor. Entrymen who
are acquainted with the Irrigation
Laws of other states where water
Is held as private property, or
where the amount of the appro-
priatlon depends upon the carry
ing capacity of bitches rather than
upon the extent of beneficial use,
are misled by the owners of
bitches and rights to water are
supposed to have been sold along
with an interest in the ditch. The
party making the sale never has
had, at the time, IA title to more
water than he could be~neicially
use for the purposes set forth in
his certificate of appropriation.
This office has had considerable
correspondence with the General
Land Office in regard to water
rights for Desert Land Claims.
The following extract from a
letter from the Assistant Commits
sioner dated September 10th of
this year, sets forth the ruling of
that office in this particular:
This Office has not held that a
mere application to appropriate
water for irrigation was sufficient
evidence to entitle entrymen to a
patent. 1t requires the certificate
of the State Board of Control that
the appropriation has been per-
fected in accordance with the APP
plication, but where the applica-
ton is for water to be taken from
a stream that has not been adJudi-
Gated, and for that reason the GER
tifcate cannot be furnished, the
office will accept the approved ap-
plication accompanied with the
affidavit of the %entryman, corrob-
Grated by two witnesses, that he
has perfected his right to the APP
preparation.
Under the ruling of the Depart
ment a person who makes a desert
land entry before he has secured a
water right does so at his own
risk. and as me entry eXhausts his
right of entry, such right cannot
be restored or again exercised be-
cause of failure to obtain water to
irrigate.
l am of the opinion that if your
office would, as a matter of infor-
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