In Colorado we find a statute,3 providing for a division of the state into six "water divisions" and sixty-eight "water districts," with water commissioners, division superintend ents, and a state engineer, constituting a system similar in any respects to that in Wyoming. Thus, the powers and duties of the water commissioners are substantially the same; they are to divide the water, shut head-gates in times of scarcity, not to act until called upon by two or more owners, etc. The "superintendent of irrigation" for each division shall have general control over the water commissioners in his division, execute the laws of the state relative to the distribution of water in accordance with the rights of priority of appropriation, make regulations, and receive reports from the commissioners. The state engineer "shall have general supervising control over the public waters of the state;" he shall measure the flow of water in streams and compute the discharge; collect information as to dams and reservoirs, and the feasible and economical construction of such works on eligible sites, also in regard to the snow-fall in the mountains, so as to predict the probable flow of water in the streams; approve plans and designs for dams and embankments more than ten feet high; have general charge of the work of the superintendents and commissioners; furnish them with data and information and require them to report to him; and make reports to the governor. But this statute lacks the excellent feature of the Wyoming act which provides that applications for the right to appropriate water must be made to, and passed upon by, the board of control. 1 Mills' Ann, St. Colo. §§ 2310-2392, and 2440-2469. $212. Statute of Nevada. In this state, a law was enacted in 1889, providing for the appointment of water commissioners, whose duty it shall be "to divide the water in the natural lakes or streams of their districts among the several ditches taking water from the same, according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the head-gates of any ditch or ditches heading in any of the natural streams cr lakes of the district, which, in time of a scarcity of water, makes it necessary by reason of the priority of the rights of others above or below them on the stream." This act also contains an elaborate system for the judicial determination of conflicting claims of priority. In this state, there is a statute relating to the distribution of water for purposes of irrigation, which, provides for the creation of water or irrigation districts, and for the election of a "water master" in each, and minutely prescribes his duty of superintending the ditches, their repair, the distribution of water among consumers, etc.5 In this territory, a law is in force which bears sufficient resemblance to the foregoing statutes to be classed with them, although it also differs from them in some important particulars. The following summary will sufficiently indicate its leading features. Sec. 3211. "Immediately after the publication of this St. Nevad. 1889, p. 107. Rev. St. Ariz. 1887, §§ 3211 Rev. St. Idaho, §§ 3200-3205. 3223. chapter, it shall be the duty of the several justices of the peace in this territory to call together, in their respective precincts, all the owners and proprietors of land irrigated by any public acequia, for the purpose of electing one or more overseers for said acequia for the corresponding year." Sec. 3212. Manner of conducting such election; none entitled to vote except owners and proprietors of land, as above. Sec. 3213. A majority of the electors shall determine the pay and perquisites of the overseers. Sec. 3214. "It shall be the duty of the overseers to superintend the opening, excavations, and repairs of said acequias; to apportion the number of laborers furnished by the owners and proprietors; to regulate them according to the quantity of land to be irrigated by each one from said acequia; to distribute and apportion the water in proportion to the quantity to which each one is entitled, according to the land cultivated by him; and, in making such apportionment, he shall take into consideration the nature of the seed sown or planted, the crops and plants cultivated; and to conduct and carry on such distribution with justice and impartiality." Sec. 3215. "During years when a scarcity of water shall exist, owners of fields shall have precedence of the water. for irrigation according to the dates of their respective titles or their occupation of the lands, either by themselves or their grantors. The oldest titles shall have precedence always." Sec. 3216. "It shall be the duty of each of the owners and proprietors to furnish the number of laborers required by the overseer, at the time and place he may designate, for the purposes mentioned in the foregoing section, and for the time he may deem necessary." Sec. 3217. Penalty for neglect or misconduct of overseer. Sec. 3218. New election to fill the place of an overseer removed from office. Sec. 3219. Owner neglecting to furnish laborers as required shall be fined. Sec. 3220. Penalties provided for injuries to acequias, or for interference with or obstruction of them. 215. Powers of water commissioners. Water commissioners, invested by law with such powers and prerogatives as are described in the statutes above set forth, are merely agents selected for the public convenience to regulate the distribution of water according to the rights of the parties in interest. It is held that their action in distributing water does not prevent the parties from applying to the courts for relief, nor does it prevent the courts from granting relief, if to any one is distributed more than his just proportion of the water. It is not thought that any valid objection could be maintained, on constitutional grounds, to the powers with which these commissioners are invested by the laws of Wyoming, Colorado, Nevada, Idaho, and Arizona, as above set forth. But it should be remarked that an early statute of Montana, creating the office of water commissioners, was pronounced unconstitutional, on the ground that it attempted to confer upon them powers which were judicial in their nature and which could not be granted by the legislature. The court said: "They are empowered by the act to apportion the waters in a just and equitable proportion. This required them to determine what was just and equitable between these parties. In the next place, the apportionment was to be made with a due regard to the legal rights of all. This required of them to determine what these legal rights were."s 'Dailey v. Cox, 48 Cal. 127. See Pico v. Colimas, 38 Cal. 578. 168. Thorp v. Woolman, 1 Mont. CHAPTER XIII. RIPARIAN RIGHTS ON NAVIGABLE STREAMS. § 216. What streams are navigable. 217. Navigable waters of the United States. 218. Floatable streams. 219. Paramount control of congress. 220. Title of state to bed of stream. 221. Limit of riparian owner's estate. 222. Incidents of state's ownership of bed of stream. 223. Rivers as boundaries between states. 224. Navigable stream as boundary. 226. Right of state to improve navigation. § 216. What streams are navigable. By the English common law, the meaning of the term "navigable streams" was restricted to those streams in which the tide ebbs and flows. And this definition has been so far followed in this country that any river or creek which is affected by the daily rise and fall of the tide is regarded as public and navigable, and subject to the rules governing such waters, unless it is affirmatively shown that it is in fact incapable of being used for purposes of navigation. Thus it is said that the common law principle applies to our rivers so far as the rise and fall is governed by the oceanic tides, although there may be no actual current up the river, and although the water be not salt or brackish.1 'People v. Tibbetts, 19 N. Y. 523. |