Arizona republican., 1910-09-29

CT purposes, and may therefore, to the extent of its actual appropriation,
 be property subject to the ordinary
 rules incidental to proprietorship. But in practice in irrigation the ac-
 tual taking, the actual appropriation of water results almost immediately l in the consumption of the thing ap- propriated-the thing which is claim | ed as property almost as soon as it i is appropriated ceases to exist-and there cannot be property of that which does not exist. The very es- sence of property is the continued existence of the thing appropriated. From a running stream of water a man may actually appropriate-that is actually take quantity of the water; but that cannot constitute ap- pr1prlatiOn of the water that ran on down the stream, or that may be in the stream the next day or the next week or rhc next month. Only that that he actually took, or actually ap propriated, that came into his pos session, or came under his dominion had or has any of the attributes of DIG Cperty. Yet, we say that when man takes water from a public water source and applies it to a beneficial use that he has an appropriation of water. and we are to- apt to say that h. owns the water, or a portion of the water that flows in the stream whether he actually takes it or not. It is a physical impossibility that he can own water flowing in stream. He must subject it to his control and haOOr1a erty As long as it flows in the stream it is not his. I shall not here attempt to elaborate the doctrine that water flowing in streams is no ones water-that it is public That doctrine is a part of the organic law of some of the western states-it is part of the comon law of others. By common law I do not mean the the common law as that term is used by lawyers-I mean that bye custom, by usage, by the adjudcatiOns of the courts the doctrine that the water flowing in the unmanageable streams of the various states in the arid re- zion, where it is not so by organic law, Is public property and is not the property of the individual.
 This distinction is an important one and it is because it is too often ignored. and that the consequences flowing from it are too often disre- garded that most of the confusion re- lating to the appropriation of water. and the rights. duties and responsi- bilities of water users has arisen.
 To attempt to apply the ordinary rules governing property to water in the public sources of water supply In the state results in confusion. uncer- tainty, inconsistency, and would be inimical to the public good
 Tn the earlier days of the appropri- atfon of water for irrigation the rules relating to the diversion and use of water for mining purposes, growing out of the custom of miners, were applied. That this use was es- sentially different from the use Of water for irrigation was not at first recognized. and was not until the in consistencies and the consequent diff faculties of the attempted application of the rules of miners regulating the use of water, to the appropriation or water for irrigation was emphatically impressed upon water users ana claimants by costly vexatious and or ten ineffective litigation that the diff ference was recognized and the true rule began to be applied.
 I shall not now attempt to be spe- cific nor discriminative, but will en- deavor to state briefly and concisely the rules that should, and in most states and territories, do now gov ern the appropriation of water for irrigation and regulate its use. The rules in the various states and ter ritories are stated in somewhat diff ferent language, but I think the gen eral rules I shall note here are eith- CT directly justified by reference to the laws of the several states where irrigation is practiced. or are fairly inferable or deducible from them.
 They are:
 1. That waters in the streams of the state belong to the public or to- the state
 3. That those waters are subject to appropriation by individuals pos sessing certain qualifications, for beneficial uses.
 3. That appropriation is as the word itself imports. an actual talk ing of the water from its natural course.
 4. That appropriation can only be lawfully made of water which no other individual has the right to ap- propriate and is actually engaged in its appropriations.
 5. That appropriation of water it. self confers right to continue to appropriate subject to certain quail fications which we will note as we proceed.
 As we have before stated, there can be no private or individual own ership of the water flowing in the streams This is necessarily so if the water belongs to the public; and it does so belong until actual appro- priation. Appropriation being the act of taking the property in the water itself is just as necessarily limited to that actually taken We must bear in mind always that ap- propriation is the actual physical taking of water, and only that so ac- tually taken becomes the property of the appropriation. But even If we concede the water so actually taken to be the property of the appropri- ator. the right of use or non-use is limited to such an extent that the usual rules Of property are inappli- cable.
 There must be certain precedent conditions to the right of an individ fa The ha sis