government of irrigation companies, which will be hereafter noticed.

§ 118. Nebraska.

In this state there is a statute relating to the appropriation of water, which is copied, in great part, from the provisions of the California Civil Code, §§ 1410--1421, heretofore quoted, but differs from that statute in some important particulars, of which the principal are as follows:

There is a provision that no tract of land, without the owner's consent, shall be crossed by more than one ditch or canal if one will answer the purpose for which a second is desired or intended. (Sec. 3.)

"The water appropriated from a river or stream shall not be turned or permitted to run into the waters or channel of any other river or stream than that from which it is taken or appropriated." (Sec. 6.)

It is provided that "in all streams not more than fifty feet in width the rights of the riparian proprietors are not. affected by the provisions of this act." (Sec. 1.)

The legislation of this state also contains a system of provisions for the securing of a right of way for irrigating ditches, substantially similar to the law in Colorado, already noticed.2

§ 119. Federal legislation.

In connection with the subject of legislation concerning water rights, it is important to call attention to the acts of congress providing for the reclamation and sale of desert lands. The principal statute on this subject is the act of March 3, 1877.3 It provides that it shall be

1Comp. St. Nebr. 1891, c. 93a,

p. 844.

2 Id. p. 845.

319 U. S. St. at L. 377; 1 Supp to Rev. St. U. S. p. 137.

lawful for any citizen, upon payment at the rate of twentyfive cents per acre, to file a declaration of his intention to reclaim a tract of desert land, not exceeding one section, by conducting water upon the same, within a period of three years thereafter. "Provided, however, that the right to the use of water by the person so conducting the same on or to any tract of desert land of 640 acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights." The said declaration is to contain a particular description of the land. A patent may be issued at any time within three years after the filing of the declaration, upon satisfactory proof being made of the reclamation of the land in the manner aforesaid, and upon payment of the additional sum of one dollar per acre. No person shall be permitted to enter more than one tract of land, and the tract shall be in compact form and shall not exceed 640 acres.

Sec. 2. "That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated."

Sec. 3. This act shall apply and take effect in California, Oregon, Nevada, Washington, Idaho, Montana, Utah, Wyo

ming, Arizona, New Mexico, and Dakota; "and the determination of what may be considered desert land shall be subject to the decision and regulation of the commissioner of the general land office."

This act was amended and supplemented by an act approved March 3, 1891,1 which adds to it the following sections:

Sec. 4. "That at the time of filing the declaration hereinbefore required, the party shall also file a map of said land, which shall exhibit a plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Persons entering or proposing to enter separate sections, or fractional parts of sections, of desert lands, may associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts, and may file a joint map or maps showing their plan of internal improvements."

Sec. 5. "That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and culti vation thereof, by means of main canals and branch ditches, and in permanent improvements upon the land, and in the purchase of water rights for the irrigation of the same, at least three dollars per acre of the whole tract reclaimed and patented." That is, such money is to be expended at the rate of at least one dollar per acre within each of the three years next succeeding the entry. Proof of such expenditure is to be made annually by the affidavits of two or more credible witnesses, and at the end of the third year a map or plan is to be filed, showing the charac

126 U. S. St. at L. 1095; 1 Supp. to U. S. Rev. St. p. 940.

ter and extent of the improvements.

But a patent may

issue at any time upon making the required proof of the And further, proof shall be

total required expenditure.

required of the cultivation of one-eighth of the land.

Sec. 6. Existing claims may be perfected either under the act of 1877 or under the present act.

Sec. 7. "That at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof to the register and the receiver of the reclamation and cultivation of said land to the extent and cost and in the manner aforesaid, and substantially in accordance with the plans herein provided for, and that he or she is a citizen of the United States, and upon payment to the receiver of the additional sum of one dollar per acre for said land, a patent shall issue therefor to the applicant or his assigns. But no person or association of persons shall hold, by assignment or otherwise, prior to the issue of patent, more than 320 acres of such arid or desert lands, but this section shall not apply to entries made or initiated prior to the approval of this act."

Sec. 8. The provisions of the whole act are made applicable to the state of Colorado, as well as the states named in the original act. "And no person shall be entitled to make entry of desert land except he be a resident citizen of the state or territory in which the land sought to be entered is located."

§ 120.

II. THE EFFECT OF THIS LEGISLATION.

Riparian rights abolished.

It is plain from the foregoing summary that in Montana, Colorado, Idaho, North Dakota, South Dakota, New Mexico, Arizona, Wyoming, and Utah, the legislation has wholly abandoned and abrogated all the common-law doctrines concern

ing private property in streams and lakes, and concerning the "riparian rights" of" riparian proprietors." The statutes in express terms apply to all streams, as well those running through public lands as those bordered by the lands of private owners. No exception from their operation is made in favor of persons owning land on the banks of a stream. Under these statutes no proprietor derives any legal benefit or advantage from the fact that his land is immediately adjacent to a stream. Unless he has made an actual appropriation and diversion of its water for the use of his own land, he is liable to have perhaps the entire stream appropriated and diverted away for the benefit of a proprietor whose land is situated at any distance from the stream. In fact, a proprietor immediately adjoining a stream is, by reason of his position, subject to a liability which must often be a grievous burden upon the land, and a serious interference with his rights of private property; namely, the liability to which his land is exposed of having ditches or canals constructed across it without his consent, for the purpose of conducting water from the stream to more distant lands. Even though this right of aqueduct across the land of a private owner must be acquired by condenination, under the exercise of the power of eminent domain, and upon payment of compensation, still it must be a most material incumbrance upon all riparian owners, and hinderance to their enjoyment and free use of their own property. The statutes of one territory seem to go to the extreme of permitting canals and ditches to be constructed across the lands of private owners, against their consent, without any condemnation or any compensation. Such a statutory provision seems to be a most palpable and express invasion of private property rights, and it is difficult to understand upon what principle its validity can be upheld. And yet the early decisions in Colorado seem to hold that all lands of private owners are subject to the rights of others to locate and construct irrigating canals and