The daily sentinel., 1912-07-22


as to the water not yet appropriated
1t can declare that hereafter, or after
any time that it may fix. no further
waters owned by it may be apprO-
priat.d, but congress alone can do
this, and the power cannot by infer
ence be held to be possessed by any
department or bureau of the govern
ment.
The fourth contention upon behalf
of the government is that it is a gov
ernment project, and therefore is not
to be considered by the same rules
as project by an individual, and IL
is urged that the government moves
slowly, and a large amount of red
tape has to be gone through with.
and therefore it should not be held
to the same strict rules which should
be applied to others seeking to ap-
propriate water. This contention is
to certain extent, true, and after
the government should determine
that certain lands should be reclaim
ed by a government project. and
should start in and continue the work
the same diligence in completing the
same would not be required. but the
facts in this case do not furnish any
ground for that contention. In 9TH
er words, up to 1908. and probably
not until 1911, was there an express
ed intent upon behalf of the govern
ment to proceed with this reclama-
tion project. The facts. as / recol-
lect them, are that in 1902, July 2, 4
think II was, or somewhere there
about, an immense acreage of ground
was withdrawn by the government.
running from somewhere in the
neighborhood of De BeQue to the
Utah line, and probably beyond. This |
was general hodge-podge without
any especial reference to the now pro-
posed high line canal, and It could |
not be, because the ground between
Palisade and De Beque could not be |
covered by II, and the ground west
of Fruita probably could not. In ad- |
dition to that 1t is very probable that
the withdrawal itself was absolutely |
void, because the department took |
upon itself by the withdrawal to vio- |
late apparently, Intentionally. the law |
with reference to withdrawal and at
tempted to withdraw the entire land |
and to refuse the right to homestead |
1t, which is one of the conditions un-
der which the reclamation service |
may withdraw lands from entry or
settlement. This was corrected some |
time later. They proceeded to make |
preliminary survey, which was
completed, and reports made there |
on. as ! recollect IL, some time about |
February, 1903. But. from that time |
until 1908, and perhaps later. there |
was nothing done in a physical or in |
substantial way looking towards |
the building of the canal: in fact. |
the letter of Mr.. Newell. the reports |
OF the engineers, and the message of
The President show that that until |
1911 there was never any expressed
intent even to see the project com
pleted, let alone doing any physical
work upon the same; and, in the |
meantime ] may add, Secretary Gar
held again, and probably knowingly,
violated the law of congress and en-
tered another order withdrawing all
of the land
If the government had continued
from 1902 to 1903 to show an intent
to reclaim this land, but by reason
of the lack of needed appropriations
by congress or something of that sort,
had been delayed in completing the
work, being government project
they might perhaps have been excus-
ed to a certain extent. but. under
the facts as they exist there can be
no excuse. because there was no in
tent shown to make it government
project.
In fact, l think that the referee
has gone the limit in fixing appropri-
atious in favor of the government
OF course, a conditional decree can
not do anything but that, but he
places il, as ! reColleCt il, in the
early part OF 1908.
The next exception, and the most
interesting one to me, is the uues-
tion of the findings and proposed de-
cree by the referee with reference to
the water which is used to raise a
portion of the water which flows
through the bitches to the raises
above. The contention made by the
government, and it is one with some
reason back of It, is that the water
used on the turbine wheels is used
for power purposes, and is not used
nor beneiicially applied in irrigation.
That is not actually APPLIED to the soil,
of course, is undoubtedly true, anc
whether or not there may be de-
cree entered in this proceeding there
fore, il is necessary to get at the
meaning of the words employed in
lne constitution, and TO ascertain II
the Legislature by its Acts OF 1873
and 1881, and by the use of other
words, intended to follow the classi-
fication as made in the constitution.
The constitution provides, first, that
all unappropriated waters and public
waters are subject to appropriation,
or that is the substance of It: End,
that where there is not sufficient wa
ter for all purposes, that the use OF
the water shall be divided into three
classes, % for domestic purposes:
t2) for agricultural purposes, and
$50 for manufacturing purposes. :
don't know that the constitution In
any place uses the word irrigation.
but it say for agricultural pur-
poses
Under this provision of the consti-
tuition the legislature in 1879, and
afterwards in 1881. passed an act for
the ad Indication Of u-a for fo, ,,zo TO-,