Imperial Valley press., 1912-05-27

ana ueClSlOn OF courts, the pOSSeSS0r
Al such vested rights shall be main
tanned end protected in the same; ant
of bitches and canals Tor the purpose
herein specified is acknowledged ant
confirmed but whenever any person il
the construction of any ditch or canal
Injuries or damages the possession o
any settler on the public domain, tn,
party committing such injury or dam
age shall be liable to the party injured
for any such injury or damage Un
der the act of March 5, 1877. entitled
An act to provide for the sale of des
ert land in certain states and ter
ritories" Gncluding California;, Q9
Stat, 31O), There is limitation tC
water rights required by appropriation
for irrigation and reclamation of des
ert lands as follows:
And such rights shall not exceed
priated and necessarily used for the
purpose of irrigation and reclamation
This limitation Is equally applicable
TO the use of water on all public lands
for the purpose of irrigation (Atchin.
son VS.. Peterson. 20 Wall, 514; Basey
VS.. Gallagher, 20 Wall. 6S2; Williams
vs. Altnow, 81 Ore, 275, 302: Hough
rs. Porter. 81 Ore, 31S, $50, 399).
Under the act of 1866 the possessory
water rights there protected are only
such as have vested and accrued and
are recognized and acknowledged by
the local customs. laws, decisions of
courts. The law of California upon
this subject is found in the constitu-
ton of the state and III provision of
the civil code relating to water rights.
tion | of the constitution of the state
provides that:
The use of all water now appropri-
ated or that may hereafter be apprO-
priated for sale, rental or distribution
is hereby declared a public use and
subject to the regulations OF the control
of the state in the manner to be pre-
scribed by law.
Section 1919 of the civil code of Cali
fornia (prior to the amendment of
April s, 1911 provides as follows:
The right TO the use of running
water flowing in a river or stream
down a canyon or rayine may be ac-
quired by appropriation.
Section l4l1 provides that: The ap-
preparation must be for some useful or
beneficial purpose and when the ap-
proprietor or his successor in interest
ceases 20 use it for such purpose the
right ceases
Section 14l5 provides the method by
which the water OF flowing stream
may be appropriated. A person desir-
ing to appropriate water must post a
notice, in writing, III a conspicuous
place at the point of intended diver
sion. stating therein: That he claims
the water there flowing to the extent of
(giving the number) inches measured
under a four-inch pressure; the pur
pose he claims il; the place Of intended
use; the means by which he intends
10 divert it, and the size OF the flume,
ditch pipe or aqueduct in which he
intends TO divert it. 1t is provided
further that copy of the notice must
within ten days after it is posted be
recorded in the office of the recorder
of the county in which it is posted.
Section 1416 requires diligence in the
appropriation of water, and provides
that: Within sixty days after the no
tice is posted the claimant must COM
mence the excavation or construction
of the works in which he intends to
divert the water or the survey road or
trail-building, necessarily incident
thereto, and must prosecute diligently
and uninterruptedly to-completion."
Section l417 provides that by COM
pletiDn' is meant conducting the water
10 the place of intended use.
1t was clearly the scope and purpose
of these statutes not only to provide
for the appropriation of the waters OF
flowing streams within the public de-
main for useful and beneficial pur-
poses, but to fix the right to such water
at the place of intended use. (Fellows
VS.. City of Los Angeles, 151 Cal, 50;
We'll on Water Rights in Western
States, paragraph 1869
This purpose has been concisely ex-
pressed with respect to the national ir-
rigation system In the act of June II,
1902 (32 Stat, 3SS), providing for the
irrigation and reclamation of lands in
certain states and territories where it
is provided in section that The right
10 use the water acquired under the
provisions of this act shall be appurte
nant to the land irrigated and beneflci-
al use shall be the basis, the measure
and the limit of the right
The parties who formed the pro-
ject now under consideration for the ir-
rigation of Imperial valley and placed
The project in charge of the complain
ant and its subsidiary corporations
were evidently fully advised as to the
true purpose and meaning of these
statutes. This is apparent from the
various contracts entered into be-
tween The complainant and the subsidi-
ary corporations whereby the real
parties endeavored by skillfully drawn
covenants to secure in the name of
the complainant corporation the value
of the water rights. that would be at
tached to the land TO be irrigated.
The first of these contracts was the
contract of December 90, 1900, between
the complainant and the Mexican com
many This contract contained among