Arizona republican., 1910-03-02

In 1888 the construction of the Highland canal waS begun, with q head about three miles above the head of the Mesa canal. and it serves land lying under it similarly situated. approximately 425 acres.
 In 1891 the construction of the Con soldated canal was begun. with q head about three miles above the head of the Utah. It serves land un- der it. approximately 2.300 acres. In the year 1874 C. r Hayden. q shareholder in the Tempe Canal Com pany. erected flour mill at Tempe on the banks of the Tempe canal. and by an arrangement with the other shareholders of the Tempe Canal Com pany. had supplied to him through that canal water sufficient to operate his mill. being maximum amount of water equal to q flow of HOO miners inches. Since that date this mill has been continuously so served.
 In the year lSS7 a suit was begun in this Court entitled M Wormser and others against tho Salt River Valley Canal Company and others. IL was q suit instituted for the purpose of en- joining certain parties to it. owners of the canal systems, from the diver sion of the water from the Salt river in derogatinn Of tRc rights "f the plaintiffs The purpose of such suit and the reasons for II. historically ap- plicable to this present suit. are set forth in the following extract from the opinion of Judge Kibbcy. rendered therein in the year 1892:
 The earlier efforts of the settlers under these older ditches toward cult- vation was confined to the production of hay and grain. and few garden vegetables. the cultivation of which was confined tu that period ui th" year when the water in the river Was very abundant As the scttlemcn! be- came older and it's population in creased. more extended cultivation began [" he undertaken. Instead nf conliuiuC themselves tu hay and grain as above mentioned. the ranchcrs gradually began the planting and cul tivation of alfalfa. fruits and vines. which required water during the en- tire year Under the conditions as they originally existed. a,d as is usual in such cases. there were many usu = pations and concessions of rights tn
 
 the time. ar. if noticed. tacitly and without objection acquiesced in be- cause of the then abundance of wa ter As the population increased and with it the more extended form of cultivation. deficiency in water be- gan to be noticed. While the river during the months in which hay and grain and the ordinary agricultural crops are being grown had in it vast volume uf water. this volume di unfinished with the advance of the season. from thousands of cubic feet per second to about. at minimum of. three hundred cubic feet per second. and as both the increase of population and the different products to which the land was cultivated increased. the demand for water in the summer months. when the supply IS the least, aggravated by an unnecessary and very considerable waste of water. cX- ceeded the supply This deficiency of supply made at once the question of priority of right to appropriate water, important and that question IS the subject matter of this suit"
 In that case Judge Kibbcy. after
 
 the case. in an exhaustive and able opinion covering the question of law that arose therein. held that. as the parties to the suit. as was disclosed by their plCadings. had proceeded on the theory that an association of in- dividuals or q corporation may become entitled to divert from natural wa ter course q definite quantity of wa ter. and that this right depended. not on the fact that the constituent mem bers of an association or corporation had for the water q beneficial use. and applied it to that use. but that the right and title to divert depended on the amount that they had been actu- ally accustomed to divert. there was an omission to make that particular proof of the rights of individual ap- prOpriators upon which the right of diversion necessarily depended: and that under the pleadings and evidence in the case no attempt could be made to define the rights of individual ap- prOpriatOrs. since an attempt to define in such suit the rights of individual irrigatUrs would not operate as an ad- Indication thereof. The findings of fact in the case were therefore con fined to a determination of the amount Of land from time to time brought un- der cultivation and supplied by the various canals and ditches. and d table was prepared showing the number of quarter sections of land brought into cultivation under the various canals from time to time from the year 1868 to and including the year 1889. the determination in the case being cX- pressly confined to the rights of the several owners of the canals and not to a determination of the rights of individual customers of such canal companies. The Court dccreed that the amount of water which the various canal companies were entitled in each year to divert from the Salt river by means of their several canals and dams. was the amounts necessary un- der proper methods of irrigation to cultivate and irrigate the number of quarter sections set forth in such ta ble. but did not find the amount of water actually necessary for such cul- tivation.
 Whatever may have been the legal effect of the decree entered in the WormSer suit, there was no effective attempt to enforce it or to distribute water according to it's terms. Even was entered into by the various canal