The daily sentinel., 1912-07-22
U. S. HAS NO RIGHT TO The
WATERS OF GRAND RIVER,
SAYS JUDGE LAVENDER
(Continued from Page II

Continued from Page II
question. the government contending
that the water power necessary in
operating the big local irrigation
plants could not be designated as wa
ter rights used for irrigation pur-
poses. Attorney Samuel G. McMul-
lin made the arguments for the irri-
cation districts against this conten-
| tion of the government. 1t will be
noted that in Judge Cayender's de-
cision he particularly refers to this
important contention. Attorney Nc
| Mullins arguments were fully sus-
| tained in the decision. This phase,
as can readily be seen, was perhaps
| the most vital point of the case.
Attorney Straud NJ. Logan, who
with Mr.. McMullin represented the
districts, ably and successfully, as the
decision proves, combatted the gov
ernment's sweeping contentious of
| federal rights.
Truly it was a great legal battle
| memorable case in every sense of
the word and the decision rendered
| today by Judge Cavendar, approving
Referee SternbeTg's report, brings to
climax one of the hardest fought
contests ever waged in Colorado
courts.
The following are Judge Caven-
der's findings in full, furnished
through the courtesy of MIR. Ross
Reynolds, court stenographer:
Judge Cavender: The first matter
for consideration this afternoon, gem
tlemen, is In the Application of the
Grand Valley Irrigation company for
a further adjudication sof. wafer
rights in Water District No. AZ,
which arises upon exceptions filed by
the United States to the findings ano
proposed decree of the Referee, ana
also upon objections filed by The
Mesa Irrigation District, The Pali-
SADIE Irrigation District, and some
other claimants in the neighborhood
of Palisade. The objections, other
than those of the government, relate
principally to the date of priority,
and probably may be decided with
the objections to the decree and find
ings, the first being that the Govern
ment is proprietary owner of the
water as a part of or appurtenant to
the soil which it owns, and therefore,
may divert ii as it may choose.
End. That being such proprietary
owner the constitution or Colorado
is a nullity in so far as 1t attempts
to declare the unappropr1ated public
waters for the people of the state, and
that they are subject to appropria-
tion under the state law.
3rd. That under the Reclamation
Act, in the Withdrawing of land by
the Interior Department, it necessar-
lily withdrew so much OF the wa1er
as might be necessary to reclaim tie
land
4th. That If these contentious ;e
not true, that then, by reason OF its
being government project the pTl-
Ority of the government Should date
from July 2. 1902, when the first
steps were taken by the government
| looking toward a Reclamation pro-
| iect, asserting that the same dill
gence was not required in a govern
mental project as in that of a corpo-
ration or an individual
And finally, 5th, that the greater
| portion of the water decreed to prior
appropriations was and is Tor power;
| Ca) that such use is not beneficient
but wasteful, and (b) that it cannot
be adjudicated in this proceeding.
The first two exceptions may well
| be considered, together, for | think
| the question as to the validity of the
| NbdNt NbuSlltullOu IS IdlntI moot
| one. for the reason that the laws Of
| the United States, irrespective of the
| state constitution, provide that the
| waters may be appropriated in the
same manner as the constitution pro-
vides. The act of 1866 starts out
with declaration that the water is
| subject to appropriation for mining
| and irrigation purposes. The act of
| lSI1 emphasizes the same very eX-
tensively, and, by the act of 1891, IL
Is made applicable to the state of
| Colorado; and by the reclamation act
of 1902 the control of the state over
waters within the state is expressly
declared, and all reclamation schemes
are expressly made subject to the
| local laws with reference thereto. So.
as | say. il seems to me TO be rather
a moot question whether our consti-
tuition is good or bad, for. under the
! laws of the United States. any appro-
priations of water made for agricul-
tural, mining or manufacturing pur-
poses are especially favored.
This being true. it is immaterial
whether the waters are public waters
OF the state, or whether they are
| owned by the government as a pro-
prietary owner, for the reason that
the government had dedicated the
waters for the purposes named, and
holds the same, if it holds them Mt
all, simply in trust for the benefit of
those who shall appropriate them.
My conclusion upon these points
is that the waters Of the Grand river
in this district We're at all times sub
| ject to appropriation for irrigation.
agricultural, mining or power pur-
poses.
My answer to the third general
ground of exception, namely, that by
| reason of the withdrawal of lands
! by the reclamation service or the in
| terror department. the water was