WATER RIGHTS.
In each of the suggested bills there is a clause providing that, with certain restrictions, the right to the water necessary to irrigate any tract of land shall inhere in the land itself from the date of the organization of the district. The object of this is to give settlers on pasturage or irrigation farms the assurance that their lands shall not be made worthless by taking away the water to other lands by persons settling subsequently in adjacent portions of the country. The men of small means who under the theory of the bill are to receive its benefits will need a few years in which to construct the necessary waterways and bring their lands under cultivation. On the other hand, they should not be permitted to acquire rights to water without using the same. The construction of the waterways necessary to actual irrigation by the land owners may be considered as a sufficient guarantee that the waters will subsequently be used.
The general subject of water rights is one of great importance. In many places in the Arid Region irrigation companies are organized who obtain vested rights in the waters they control, and consequently the rights to such waters do not inhere in any particular tracts of land.
When the area to which it is possible to take the water of any given stream is much greater than the stream is competent to serve, if the land titles and water rights are severed, the owner of any tract of land is at the mercy of the owner of the water right. In general, the lands greatly exceed the capacities of the streams. Thus the lands have no value without water. If the water rights fall into the hands of irrigating companies and the lands into the hands of individual farmers, the farmers then will be dependent upon the stock companies, and eventually the monopoly of water rights will be an intolerable burden to the people.
The magnitude of the interests involved must not be overlooked. All the present and future agriculture of more than four-tenths of the area of the United States is dependent upon irrigation, and practically all values for agricultural industries inhere, not in the lands but in the water. Monopoly of land need not be feared. The question for legislators to solve is to devise some practical means by which water rights may be distributed among individual farmers and water monopolies prevented.
The pioneers in the “new countries” in the United States have invariably been characterized by enterprise and industry and an intense desire for the speedy development of their new homes. These characteristics are no whit less prominent in the Rocky Mountain Region than in the earlier “new countries”; but they are even more apparent. The hardy pioneers engage in a multiplicity of industrial enterprises surprising to the people of long established habits and institutions. Under the impetus of this spirit irrigation companies are organized and capital invested in irrigating canals, and but little heed is given to philosophic considerations of political economy or to the ultimate condition of affairs in which their present enterprises will result. The pioneer is fully engaged in the present with its hopes of immediate remuneration for labor. The present development of the country fully occupies him. For this reason every effort put forth to increase the area of the agricultural land by irrigation is welcomed. Every man who turns his attention to this department of industry is considered a public benefactor. But if in the eagerness for present development a land and water system shall grow up in which the practical control of agriculture shall fall into the hands of water companies, evils will result therefrom that generations may not be able to correct, and the very men who are now lauded as benefactors to the country will, in the ungovernable reaction which is sure to come, be denounced as oppressors of the people.
The right to use water should inhere in the land to be irrigated, and water rights should go with land titles.
Those unacquainted with the industrial institutions of the far west, involving the use of lands and waters, may without careful thought suppose that the long recognized principles of the common law are sufficient to prevent the severance of land and water rights; but other practices are obtaining which have, or eventually will have, all the force of common law, because the necessities of the country require the change, and these practices are obtaining the color of right from state and territorial legislation, and to some extent by national legislation. In all that country the natural channels of the streams cannot be made to govern water rights without great injury to its agricultural and mining industries. For the great purposes of irrigation and hydraulic mining the water has no value in its natural channel. In general the water cannot be used for irrigation on the lands immediately contiguous to the streams—i. e., the flood plains or bottom valleys—for reasons more fully explained in a subsequent chapter. The waters must be taken to a greater or less extent on the bench lands to be used in irrigation. All the waters of all the arid lands will eventually be taken from their natural channels, and they can be utilized only to the extent to which they are thus removed, and water rights must of necessity be severed from the natural channels. There is another important factor to be considered. The water when used in irrigation is absorbed by the soil and reëvaporated to the heavens. It cannot be taken from its natural channel, used, and returned. Again, the water cannot in general be properly utilized in irrigation by requiring it to be taken from its natural channel within the limits ordinarily included in a single ownership. In order to conduct the water on the higher bench lands where it is to be used in irrigation, it is necessary to go up the stream until a level is reached from which the waters will flow to the lands to be redeemed. The exceptions to this are so small that the statement scarcely needs qualification. Thus, to use the water it must be diverted from its natural course often miles or scores of miles from where it is to be used.
The ancient principles of common law applying to the use of natural streams, so wise and equitable in a humid region, would, if applied to the Arid Region, practically prohibit the growth of its most important industries. Thus it is that a custom is springing up in the Arid Region which may or may not have color of authority in statutory or common law; on this I do not wish to express an opinion; but certain it is that water rights are practically being severed from the natural channels of the streams; and this must be done. In the change, it is to be feared that water rights will in many cases be separated from all land rights as the system is now forming. If this fear is not groundless, to the extent that such a separation is secured, water will become a property independent of the land, and this property will be gradually absorbed by a few. Monopolies of water will be secured, and the whole agriculture of the country will be tributary thereto—a condition of affairs which an American citizen having in view the interests of the largest number of people cannot contemplate with favor.
Practically, in that country the right to water is acquired by priority of utilization, and this is as it should be from the necessities of the country. But two important qualifications are needed. The user right should attach to the land where used, not to the individual or company constructing the canals by which it is used. The right to the water should inhere in the land where it is used; the priority of usage should secure the right. But this needs some slight modification. A farmer settling on a small tract, to be redeemed by irrigation, should be given a reasonable length of time in which to secure his water right by utilization, that he may secure it by his own labor, either directly by constructing the waterways himself, or indirectly by coöperating with his neighbors in constructing systems of waterways. Without this provision there is little inducement for poor men to commence farming operations, and men of ready capital only will engage in such enterprises.
The tentative bills submitted have been drawn on the theory thus briefly enunciated.
If there be any doubt of the ultimate legality of the practices of the people in the arid country relating to water and land rights, all such doubts should be speedily quieted through the enactment of appropriate laws by the national legislature. Perhaps an amplification by the courts of what has been designated as the natural right to the use of water may be made to cover the practices now obtaining; but it hardly seems wise to imperil interests so great by intrusting them to the possibility of some future court made law.