Arizona republican., 1917-03-03

right to vote, not to exceed 100 votes !
for each shareholder, no mater how /
many shares he might own in excess !
Of l60 acres.
There were Mt that time valid APP
preparations Of water for more than |
10000 acres of land within the irriga- |
ton district.
1t was absolutely necessary to Sc |
cure to the association the member
ship OF practically all these appropri- .
ators If any considerable number
should remain out of the association,
the amount o. water remaining sub
jet TO appropriation. if any, would be
not only so Uncomfortable. but uncer-
tain. that the cost per acre of any
reclamation works not designed to in
olude tho lands already having valid
appropriations would have at once ap-
peared 10 re, and in fact have been
prChibtiVe. This is obvious without
presenting figures here 10 demon
strate il.
Even had there been an ascertancd
iand substantial surplus over ana above
the water already subject to vested
prior rights OF appropriation. il would
have been almost indispensable To
practical operation of such a system
rs that contemplated. that all or prac
ticlllv all OF them should have joined
the association.
, Most Of them did so by subscribing
TO the stock OF the association. In
/ becoming members of the association,
/ however, no appropriation of water
! lost anything Of his rights All the
| prior rights of appropriation remained
and still are wholly unaffected in their
1 legal essence by the fact of member
/ ship Of the association modified in
no particular.
/ The provision of the reclamation
act that water rights obtained under
4 that Law should be based upon and
! measured and limited by beneficial
! use. ana that the right should be
| characteristics OF the OLD rights es-
! tablishcd by the local law of the
| territory. Those old RIGHTS are pre-
served and maze 0een since the organ
I izatiOn Of the association. ard long
| after the work of construction had
been begun. We're established iudically
! ny a court of competent jurisdiction
/ in the case. entitled. Hurley W.
| Abbott. ct al. To which suit the
j United States was an active moving
party. and the government as well as
all other parties To it are completely
! bound Lv il Such an adjudication
| Of these rights was required by the
| reclamation service.
Incident TO the stock TO be issued by
| the association is its function as evi-
| dence Of the continued existence of
! The old prior right OF the shareholder.
| as well rs OF any additional rights
| the shareholder might acquire as a
/ result of the construction of irriga-
| ton works under the provisions OF the
! reclamation act or otherwise
The sum Of these rights could not
| exceed the right to appropriate and
| use an amount of water measured
and limited by beneficial use
! As YET, there has been no determin-
! alton of the relative extent of these
two rights: such determination could
not probably be made The govern
| nent. however. has no right 10 any
water, Except Of course as it may
| own institutional lands which before
! and since the passage Of the reclama-
| lion act il had acquired, as a private
! person might have acquired a right
! Of appropriation.
! We do not base any Of our rights to
the use OF water upon any OF the
! provisions of the reclamation act
| That act contemplates solely the con
! struction Of works which are the
means Of appropriation. The rights
! Of appropriation and use are indie
/ pendent Of the provisions of that act
! 1t is important 20 keep in mind this
! fundamental distinction-the distinc-
ton between the right of appropria-
| ton and the means by which to ef-
| feet or to exercise il.
To illustrate: one may have ef-
fected a right of appropriation Of
water and long continued to enjoy ii.
! He made II effective by means OF
! dam in and ditch from the source of
| supply-a stream for instance.
In such case. II mis- dam and ditch.
which are his means of effecting his
! appropriation are destroyed we will
/ say by flood. nevertheless his right
| 10 appropriate is not DESTROYED or
affected. He may. without a destruc-
ton Of his means OF appropriation.
| abandon those means and adopt new
! ones and he viii thereby in no wise
, affect his right of appropriation or
its priority in point of time as related
to other appropriations.
The works constructed by the gov
eminent in this valley arc but means
Of exercising the right Of appropria-
ton and use Of water. The right of
| such appropriation and aproriation
may not be affected without means 10
| effect it--bdt the rights and means OF
exercising it are fundamentally diff
ferent things
The rights Of the members of the
Salt River Valley Water Users asso-
citation TO appropriate water out of
the Salt and Verde rivers are not
legally limited by the means provided
by the government for the exercise of
that highland this may be said to
some extent Of their right to water
which may in fact have been stored
behind Roosevelt dam: but as to that
Z the situation is somewhat too complex
10 admit Of elaboration here.
| When II had been determined by
the government to construct irrigation
works, the subscribers to the stock
Of the association naturally wanted to
understand and to be assured Of the
relation Of the government to them as
prior appropriations of the water of
the two rivers. Hence the negotia :
lions which resulted i'm the contract
between the government and the asso-
citation bearing date June 25. 1904.
This contract was submitted to and
approved by an overwhelming ma
1ority Of the votes of the subscribers
for the stock of the Water Users
association.
1t must be remembered that bv the
terms Of that contract the govern
nent does not agree TO construct any
irrigation works. The government
did not agree with the association tc
i either construct or otherwise acquire
any means Of the storage. diversion
1 or delivery of water Had the govern
mont not laid stone in n dam, MOI
4 excavated 4 cubic yard of canal, no,
expended dollar toward the con
Il Struction or acquisition Of irrigation
works, II would have not been charge.
able. directly or indirectly, moral,
or legally. with a breach of any con.
tract or agreement with the associa
ton.
The government did agree by tina