Arizona republican., 1907-09-05

must adjust his claim to the definition of the right conta.Teti in that act. Tha { is. the right must be based upon tn, ownership or occupancy of land. anC | the extent and limit of the right mus be measured by beneficial use. and tht right, of course be an inseparable ap- purtenant to the claimants land. Just how far the public policy of any state ! or territory might interfere with the voluntary adjustment of water rights ' to conform with water rights as de- fined in the national irrigation act. Is question of some difficulty and ot some interest. If in a given state or territory the legal right to appropriate water Is not necessarily based upon the ownershipior occupancy of land by the actual appropriator. and conse- quently the right is not inseparably appurtenant to given piece of land, and therefore be the subject of transfer to another whether a land owner or not, subject only to the condition that the water st all be applied ultimately to beneficial use. water right owners or any of them. should voluntari,. agree that such rights should there
 
 to specific lands, what effect would be given to the agreement, and how far, contrary to the general policy of the state. would such rights be bound by this limitation? Or. for further H. lustration. if water right owners. or some of them. in a state or territory where a given quantity of water is rec ognized by law as the subject of, ap- propriation. should agree thereafter that the measure of the appropriation should. as to extent and limitation. be beneficial use, would the limitation be given legal effect in the courts of that state? l think it may be assumed that the courts Of such state would give ef- feet to the agreements we have sug- gested, as it is difficult to conceive how such agreements could disadvan . tageously contravene any public poll icy.
 II might be in state or territOr,- where by law water right is apputen- ant to lands. and therefore not separ- ably assignable or transferable apar. from the lands to which it is appiIr- tenant. that any agreement. by few. a considerable number. or all of the
 
 able and transferable separately would be ineffective because obviously con- trary tn the public policy of that state or territory as expressed in it's statu- tory ar judicially declared law. and in imical to it.
 IL must be admitted that the. United States government may transfer its title either 10 land or to water. or both. of which it is the owner: yet the title that may be enjoyed by the grantee: the legal incidents of the title afer the grant; the manner of its enjoyment: its alienability. and other incidents of ownership. must be determined by the laws of the state or territory wherein the land or water may be situated. modified only by the express provisions of the federal constitution. Neither by the terms of any grant by the govern ment nor by a law of congress can there be attached 10 the title or owner ship any conditions of use. enjoyment or limitation that may be valid and made effective after the grant. if they be opposed and inimical to the public policy of the state or territory where the subject of ths grant lies
 RIGHT OF TITLED LANDS.
 This statement is. of course. to be modified in the case of the territories. Sor congress may as t" them directly l-sisIats ana thereby determine 'ins pHblic policy BW even there congress go nn"i h, lsgiSIatic1 diyesi rights sl- c esdy acquired nor impose upon then any limitations not before existing.
 IL may, We think. be safely assumed, however. that the claimant of a vested right to the use of water may by his agreement based upon not only good and valuable consideration but upon what is generally regarded as a meri- torious one. consent to a reasonable limitation upon the enjoyment of the right. if those limitations be such as in their operation will not disadvantag- eously oppose local public policy.
 That water in the arid regions should be deemed public property. subject to appropriation as it is needed for the ir- rigation of lands: that that right should be based upon the ownership or of land; that the right should be inseparably appurtenant to the land which constitutes the basis of the right. and that the measure of ap- both as to extent and limit m quantity appropriated, is beneficial use. is policy so obviously commend ible as one calculated to permanent v develop the agricultural resources of he arid west. and is so justSnd equit- able. and one to which the jurisprud- ,nce of the whole west is tending. that t hardly seems probable that the EIEzIEsra-z7s. ==- fi;. sZ1slixs5i9