The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-01-21
Some Follies of Our Irrigation Law
BY (. c. LocKNER.

~ Alt 'bhI - VII tttltI IlfGrS tho largo
Users at times obtained control Of the
water master and friction be,,res1
them and smaller users occasionally re-
suited. Yet on the whole rights arc
talrly recognized and justice usually
none largely due 10 the intimate famil-
i'ilty OF the water masters with the re-
spective rights and their constant asso-
cation with water users Whicl. USUALLY
speedily eorreets abuses. 30 sane rea-
sva mas been offered why The state en-
sIuFef WITH numerous assistants. at
great expense, should Interfere with
inns system, nor why he should he
granted the authority to build M a
large ofhcer-hOlding force which he AZ
any tiine may convert into dangerous
poiitlcal machine and cause tho 'politi-
cation of our water rights Our npes-
ent way of distributing water is a good
way. We should hold to il steadfast-
~. we should see to il that the laws
are SO changed SO that this way may
not be taken from us by meddling
public official.
Adverting TO the provisions Of the
statute providing for the adjudication
.O1 water rights. il provides in brief.
that after public notice OF his intention
the state engineer may MAKE an exam
NATION and survey of each river in the
state, showing in detail the rights of all
users Of water thereon: this survey.
whom completed. is fled With the clerk
or the district court. who notifies all
users that the state engineer has de-
cidcd to adjudioatc their rights. and
under penalty OF Il forfeiture thereof
they must appear and set forth their
claims; q referee may Their De appoint
ed. with power 10 hear Evidence. and
report TO the court who later nav ma i1e,
decree; if the matter is ever finally
settled the clerk issues 20 each parfv a
certificate of his rights as determined
by the decree-and under such rules
and regulations rs tho state engineer
may deem necessary from time %
time. The cOnstitutionalitv of some
or the provisions Of this portion OF the
act are doubtful Indeed. SEINE have.
already been declared unconstitutional
ny the courts. But disregaFding these.
the scheme Is vicious in principle for II
proceeds on The hypothesis that II &c
necessary for a public officer 20 go into
court and ascertain and settle titles to
water rights belonging Ia private r,ar-
ties. whether the private parties desire
10 nave them settled or not 1t is i'm
material that these rights arc I'M
questioned; that the owners thereof
are poor and opposed 10 the litigation
thereof The loTG ~ the waters
has said litigate and litigate YOU must
or forfeit your farm. for if Won lose
your water your farm is valueless. How
strange the little detail was omitted as
To whom your rights should be for
feited-presumably to the state engi-
neer or to such party as his rules and
regulations may from time To time
deem necessary. Think of the shame
Of it all; think of such proceedings un-
Der the guise Of law. Under Il an ag-
gressive busybody OF a state engineer
may start more expensive trouble than
the courts can settle i'm a generation
If ever. Some attempts have been made
10 enforce this scheme-only one extern
siYely, we believe. in Utah A large
sum of money has been spent by our
state engineers in making n survey of
one of our larger streams for the nast
four years. but no material results
seem to have been accomplished Ap-
parently it is all the impracticable
dream of some deluded idealist who
felt that ne had panacea to avoid 1T
igauOn of water rights and To shift
the expense thereof from the farmer
onto the state. This latter object sure
ly is an outrageous injustice upon other
taxpayers The ownership of any class
OF property carries with il the burden
OF protecting il against the claims of
others. And il is subversive of a fun
damental principle OF our government
and constitution to force non-wa ter
users TO pay portion of the expense
of adjudicating the rights OF water
users. The scheme has been demon
strated to be impracticable and IN
workable. IL is an eXcrescence on our
statute books; il should be repealed.
Thus far 7 have endeavored TO shoYy
that the code or irrigation and water
rights was passed by a number of
western states under pressure from
Washington, in hopes of sharing more
readily in the funds which We're to be
distributed under the direction OF the
reclamation service; that the provisions
OF this code providing for the adjudi-
cation and distribution OF water are i'm
practicable and probably uncOnstitu-
tiOnal. Neither OF these provisions has
been extensively administered and we
can probably best appreciate the innate
viciousness Of the law by the results of
that portion which has been admins
tered.
A brief statement Of the history Of
water rights i'm the west and the law
existing at the time of the enactment
OF this new code will give a fuller un-
derstanding Of its method for acquir-
ing new rights.
The west was developed under a Sc
ries OF general laws which granted
fullest freedom TO the individual in the
requirement of new rights on the pub
lie domain. From 1s4S to 1866 water
rights were regulated by custom and
consent of the settlers as enforced by
the courts and sanctioned by the legis-
latiOn of the states. There was a tacit
understanding among the settlers that
the first in possession was regarded as
the rightful owner so long as that pos
session continued. Congress confirmed
these titles by the act Of 1866, which
act also confirmed the title 90 mineral
lands. but applied only 10 the public
domain. When the states were formed
they were at liberty TO make such
rules. local customs and regulations as
they deemed best. Most OF the west
ern states provided that the ownership
OF the public waters should be re-
served 10 the public and that such wa
tiers should be subject TO appropriation
by individuals This doctrine Of prior
appropriations is III general force in
Utah. Nevada. Colorado. Idaho, Wy
Oming. New Mexico. North Dakota and
Montana. and partially IN force in Cali
fornia. Oregon Washington and the
western portions Of Texas and Ne
braska- Under these statutes the