ing, milling and mechanical purposes in this State shall be a cubic foot of water per second of time."1

Washington is one of the States of the arid region that recognizes the rights of riparian proprietors to the natural flow of the water through their lands adjoining the streams or lakes as the same exists at common law. However, right is given to ditch companies to condemn any such riparian rights in and to the water for public uses.2

1 Stat. 1890, p. 985; Hill's An. St. Sec. 1862.

2 See Hill's annotated Stat. Sec. 1774, Ante Sec. 420.

I. Subject Treated in General.

$425. Particular Features of State.-Twenty years ago one-half of the State of Kansas was considered agricultural, the other one-half pastoral; and successful agricultural enterprises were not expected beyond the one hundredth meridian. But in spite of that idea the settler gradually moved westward.

He had been told that a year of drought and starvation would come; still he pushed on, breaking and subduing the soil and showing by his improvements that he had come to stay; and in spite of his many disappointments he is there yet. The eastern half of Kansas is within the rain belt and the portion west of the 100th meridian is within what is known as the semihumid region.

The States of Nebraska and Kansas have so great a similarity in physical conditions and topographical features that they are very frequently discussed together. Their conditions are. well known. Like most localities they have their virtues and their failings. These States have a rich and deep soil and an abundance of sunshine. In their eastern half they have sufficient natural moisture to raise fair crops. But in the western half natural rainfall is only sufficient to lure the hopeful settler to take up his abode there and to struggle against nature in that unequal contest of dry farming in a semi-humid region. The only crop that has grown surely and abundantly year in and year out in these two States, west of the 99th meridian, is the crop of despair. And of this crop there has been a distressing overproduction in the last few years. Irrigation is indispensable to the success of agriculture in the western half of Nebraska and Kansas. It is being generally adopted throughout this portion of the States and would greatly enhance the general prosperity if adopted in the eastern half. Kansas and Nebraska are agricultural States. But the farmer is not the only person who should favor the adoption of irrigation there. It is equally important to merchants, bankers and owners of town property. They have all suffered keenly from failure of crops and they will all be benefited when crops are made sure. A universal practice of the art of irrigation will supply the only element now wanting to make these two States hold their own against any of the States of the Union.

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§ 426. Irrigation in the State. Amongst the great sources of water supply in western Kansas is the underflow or sheet water, which is that vast underground store from which the ordinary wells of the region obtain their

supply. There are also the natural waters of the Republican, Smoky Hill, Soloman, Arkansas and Cimarron rivers and a number of smaller streams, besides what is called the stored storm waters, which are those waters that are saved by means of enormous catch basins throughout the plains which save the rainfall. These waters can be utilized with very slight cost and an entire immunity from risks of dangerous floods. To utilize the surface waters does not exhaust the supply of those of natural streams to any great extent. These surface waters sink into the sands and course their way towards the sea, generally below the river beds.

The people of Kansas, finally seeing the great benefits to be derived from the practice of irrigation, have, through their State legislature, adopted for that part of Kansas which lies west of the 99th meridian a very elaborate and even drastic code of control over natural waters, culminating in provisions allowing the formation of irrigation districts, which last provisions in a more or less modified form have followed the lines laid down by the State of California in this respect. We will now proceed to discuss the laws of the State upon this subject. II. General Statutory Enactments.

§ 427.

An Act Concerning Irrigation.-In 1886 the legislature of Kansas passed an Act concerning irrigation of which the following is the substance:1

Sec. 3516 of said Act is as follows:

"The right to the use

of running water flowing in a river or stream in this State for the purposes of irrigation may be acquired by appropriation. As between appropriators the one first in time is first in right."

The following sections provide that the place of diversion may be changed if others are not injured by such change; that a notice of appropriation must be filed and posted in a conspicuous place at the point of diversion; that within sixty days after the notice is posted the claimants must commence the construction of the works and must prosecute the same diligently and uninterruptedly until completion, unless inter

1 See Gen. Stat. 1889, Secs. 2514-3523; Stat. 1886, Ch. 115.

rupted by stress of weather; and by "completion" is meant conducting the water to the place of its intended use; also that whenever any company shall have constructed a canal it is permitted a right of way for that purpose over the unoccupied lands of another, for which damages may be awarded, but which damages shall not exceed the value of the land occupied at the date of the construction of the canal.

$428. Condemnation Proceedings.-On March 27, 1889, there took effect: "An Act to enable irrigating ditch and canal companies to condemn the right to take water for irrigating purposes from any stream in the State of Kansas."'l

Sec. 3524. Provides: "Any and all irrigating ditch and canal companies which have been heretofore organized or incorporated, or which may hereafter become organized and incorporated for the purpose of procuring or furnishing water for the purpose of irrigation, which shall desire to condemn. the right to take such water from any stream in the State of Kansas, shall have the right to procure such condemnation for such purpose in the following manner."

The Act further provides that a petition must be presented to the judge of the District Court of the county, signed by the company or by its authority, stating the number of miles of ditch built or to be built, and a specific description of the dimensions of the same and describing the stream and the place where the ditch company proposes to take water from such stream and asking the appointment of commissioners to condemn such right. And the judge shall then appoint three disinterested freeholders of such county to make such condemnation. The commissioners must meet after having given notice, at the time and place specified in said notice, and hear all claims for damages presented to them in writing by any person or persons for the condemnation of the right to take the water; and shall allow and award such damages as shall seem just, reasonable and fair, as compensation to the persons presenting such claims; and after having heard all claims shall make a report to the clerk of the District Court, stating

1 Gen. Stat. 1889, Sec. 3524-3533; Stat. 1889, Ch. 165.