Water Rights.
The United States Revised Statutes provide:
1. That as a condition of sale in absence of legislation by Congress, the legislature of a State or Territory may provide rules for working mines, involving easements, drainage, and other necessary conditions; these to be expressed in the patent.
2. That all prior rights, arising from possession, in the use of water, and recognized by local laws, etc., or judicial decisions, shall be regarded as vested, and shall be protected. This right of way is also granted and confirmed. Damages are to accrue if a land-settler’s rights are interfered with.
3. All land patents shall be subject to vested and accrued water rights, including ditches and reservoirs.
Officers of United States Land Offices are required to file with the General Land Office, the local laws on such matters. The following is a summary of those passed by the legislature of Arizona.
Water Rights in the Territory.—All rivers, creeks, and streams of running water in the Territory of Arizona are deemed public, and applicable to the purposes of irrigation and mining. All the inhabitants of the Territory who own or possess arable or irrigable lands shall have the right to construct public or private acequias, and obtain the necessary water for the same from any convenient river, creek, or stream of running water.
All damages arising from construction of the acequias shall be assessed by the Probate Judge of the county in a summary manner.
No inhabitant of the Territory shall have right to erect any dam or build a mill, or place any machinery, or open any sluice, or make any dyke, except such as are used for mining purposes, or the reduction of metals, that may impede or obstruct irrigation.
When any ditch or acequia shall be taken out for agricultural purposes, the person or persons so taking out such ditch or acequia shall have the exclusive right to the water, or so much as may be necessary for such purpose; and it at any time the water so required shall be taken for mining purposes, the damages shall be assessed and paid.
All owners and proprietors of arable or irrigable land bordering on, or irrigable by, any public acequia, shall labor on such public acequia, whether such owners or proprietors cultivate the land or not; and all persons interested in a public acequia, whether owners or lessees, shall labor thereon in proportion to the amount of the land owned or held by them, and which may be irrigated or subject to irrigation.
In all districts or precincts, the owners or proprietors of land irrigated by public acequias are annually called together by the Justices of the Peace, to elect one or more overseers for the acequias—and it is the duty of said 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.
If any owner or proprietor of land irrigated by such acequia shall neglect or refuse to furnish the number of laborers required by the overseer, he shall be fined, and all fines shall be applied to the benefit of said acequia.
Water privileges are, since the United States Act of May 10th, 1872, located in the same manner as mines, subject to local regulations, i.e. by definitely locating the five acres by monuments, and recording with the District or County Recorder. If the local rules and decisions of the Courts make the privilege forfeitable for non-use, another party may come in and claim the water right.
The Federal Courts have decided that the right of way to construct flumes or ditches, over the public lands, is unquestioned. It has also been decided that the miners’ right to water, within “reasonable limits,” is not to be questioned. “It must be exercised,” however, with due regard to the general condition and needs of a community, and cannot vest as an individual monopoly.