In this state, the same provisions in respect to appropriation and water rights are in force as in North Dakota, both of these states having adopted the laws which were in force in the former territory of Dakota on these subjects.' But South Dakota has also adopted legislation authorizing the formation of private corporations for the sinking of artesian wells, and the sale and distribution of the water obtained therefrom; and also a law authorizing townships to sink such wells and bond the indebtedness created by the expense thereof. These laws will be fully noticed in later chapters.

In this territory the use of water for the purposes of irrigation is made paramount to all other uses, for milling, manufacturing, and the like. The general laws contain an elaborate system of legislation for the construction and maintenance of public and private "acequias" or irrigating canals. This sys

tem is embodied in the statutes of several successive legislatures, and is evidently borrowed from the Mexican law.*

Section 1. "All inhabitants of the territory of New Mexico shall have the right to construct either private or common [i. e., public] acequias, and to take the water for said acequias from wherever they can, with the distinct understanding to pay the owner through whose land said acequias pass a just compensation taxed for the land used." Provision is made for appraising and fixing the amount of such compensation, in cases of dispute, by appraisers to be appointed by a probate judge. [It may be re

1 Comp. Laws Dak. 1887, §§ 20292036.

2 Sess. Laws S. Dak. 1890, c. 103, p. 245.

3 Sess. Laws S. Dak. 1891, c. 80, p. 196.

4 Gen. Laws N. M. 1880, pp. 1323, embracing Acts 1851, 1852, 1861, 1863, 1866, and 1880, concerning "acequias," or irrigating canals.

marked that these early statutes were originally enacted and published in the Spanish language. The translation found in the last edition of the General Laws, from which these sections are quoted, is extremely literal, and sometimes fails to adopt the precision and certainty of expression usual in our English and American statutes.]

Sec. 2. "No inhabitant of said territory shall have the right to construct any property to the impediment of the irrigation of land or fields, such as mills or other property that may obstruct the course [i. e., flow] of the water; as the irrigation of the fields should be preferred to all others, [i. e., to all other uses.]"

Sec. 4. All owners of tillable lands shall labor on public acequias, whether they cultivate the land or not.

Sec. 9. "All rivers and streams of water in the territory formerly known as public acequias or ditches are hereby established and declared to be public acequias or ditches."

The foregoing quotations sufficiently indicate the essential nature of this system, without going into any further detail. Subsequent portions of the statute make provision for the election. of "overseers" in different precincts, and define their duties in managing the acequias, and in distributing the water supply. Ample provision is made for maintaining the ditches, and for keeping them in repair by public labor, etc. The legislation of this territory also contains provisions for the organization. and operation of irrigation and ditch companies. This statute will be found epitomized in a subsequent chapter.

§ 112. Arizona.

The legislation of this territory on the subject of water rights resembles that of New Mexico in numerous respects. The fundamental principle that the water of all rivers, creeks, and streams in the territory is public, and incapable LAW W. R.-14

(209)

of private and exclusive ownership, is declared in the following explicit terms: "The common-law doctrine of riparian water rights shall not obtain or be of any force or effect in this territory." The appropriation and use of water is regulated by the provisions of certain sections of the Revised Statutes concerning irrigating canals and acequias, which may be summarized as follows:

Sec. 3199. All rivers, creeks, and streams of water are declared to be public and applicable for purposes of irrigation and mining.

Sec. 3200. All acequias at present established shall be continued and rights therein shall not be disturbed.

Sec. 3201. All the inhabitants of the territory who own or possess arable or irrigable lands shall have the right to construct public or private acequins, and obtain the necessary water for the same from any convenient river, creek, or stream of running water.

Sec. 3202. Such acequias may be run through the land of another when necessary, the damages by way of compensation to be assessed by the probate judge of the proper county in a summary manner.

Sec. 3203. No interference with these acequias shall be permitted, by dams or other structures, except when used for mining purposes as otherwise provided. It is declared that "the right to irrigate the fields and arable lands shall be preferable to all others."

Sec. 3204. Parties using water for mining purposes must pay compensation in damages for injury thereby caused to irrigating canals or acequias already existing.

The laws of this territory also contain detailed provisions as to the government and operation of public acequias, forming a system analogous to that of the "irrigation dis

1 Rev. St. Ariz. 1887, § 3198.

tricts" in California and some other states.

These pro

visions will be recited in the chapter devoted to that subject.

$113. Wyoming.

The legislation of this state is the same in substance, and almost identical in language, with that of Colorado, heretofore described.1

Section 1317. Any person or corporation having the title or the possessory right to any tract of land within the territory is entitled to the use of the water of any stream, etc., for purpose of irrigation, and of making the land available for agriculture, etc.

Secs. 1318-1324. To that end, such person, etc., may have right of way across the lands of another for a ditch. Such right of way may be acquired by condemnation, the compensation therefor being fixed by appraisers. When the supply of water is not sufficient to furnish a full amount to an entire community, it is to be apportioned among them. Owners or occupants bordering on streams may place rams in the channel or on the banks in order to raise the water, and may have a right of way to conduct such water. Prior vested rights to the use of water are protected. Provision for keeping ditches, etc., in good repair, etc. [But it is to be noted that these provisions are in some part modified, and in some part repealed, by the act of Dec. 22, 1890, (Laws Wyom. 1890-91, p. 91,) relating to the "supervision and use of the waters of the state," and which provides for a division of the state into water-districts, with public officers in each having control of the appropriation and use of the waters therein. There are also, in this state, statutory provisions regulating the organization and operation of "irrigation and ditch companies." Both these systems will be noticed in later chapters.]

1 Rev. St. Wyom. 1887, §§ 1317-1324.

§ 114. Utah.

The General Statutes and Session Laws of this territory contain an elaborate and detailed system of regulations devoting the water of all streams to the purpose of irrigation. The commonlaw doctrines concerning property in the waters of streams, and "riparian rights," are completely abrogated. The leading stat ute concerning irrigation1 provides for the formation of irrigation districts. The citizens of such districts may be organized into irrigation companies, and may elect trustees for the management of these companies. A tax may be levied rpon the lands in each district benefited in order to defray expenses. Land may be condemned for ditches, etc. All ditches and other works become the property of the company, etc. No irrigation company shall be entitled to divert the waters of any stream to the injury of any irrigation company or person holding a prior right to the use of said water.

A more recent statute regulates the use of water by private persons, and protects their rights to such use, supplementary to the former system. The selectmen of each county are made "water commissioners," and have general power to manage irrigation, and to regulate the use and distribution of water among the land-owners of their respective counties. This statute contains provisions, not found in any other legislation, which divide the vested rights of private persons to use water for domestic, agricultural, manufacturing, and all other beneficial purposes, into two grades, "primary" and "secondary," of which

12 Comp. Laws Utah, 1888. $$ 2403-2427, being an act (of Mar. 13, 1884) "compiling the laws relating to the incorporation of irrigation companies." [Where parties, with the knowledge and consent of the original constructors of an irriga. tion ditch, work upon and assist in widening and repairing the same,

with the tacit understanding that they are to be entitled to use the same, they thereby acquire right and title to such ditch, and to the water therefrom. Lehi Irrigation Co. v. Moyle, 4 Utah, 327, 9 Pac. Rep. 867.]

22 Comp. Laws Utah, 1888, §§ 2775-2789.