§ 533. Irrigating Canals and Acequias. The revised statutes of Arizona contain the following upon the subject of irrigating canals: Section 3199 provides: "All rivers, creeks and streams of running water in the Territory of Arizona are hereby declared public, and applicable to the purposes of irrigating and mining as hereinafter provided." "Sec. 3201. All the inhabitants of this Territory who own or possess arable and 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 owners of acequias may have the right if necessary to run the same through the lands of private individuals, and the damages resulting to such individuals, on application of the party interested, shall be assessed by the Probate Judge of the proper county in a summary manner. Sec. 3203 declares that no one may obstruct the irrigation of any lands or fields, except by erecting mills and machinery for mining purposes or for reduction of metals, as the right to irrigate the fields and arable lands shall be preferable to all others. Sec. 3204. Where reduction works or other mining apparatus shall be placed upon lands previously held for agricultural purposes the person or persons so holding such lands shall be entitled to remuneration for the damages caused thereby. Sec. 3205 provides that when any ditch or acequia shall be taken out for agricultural purposes the party so taking out such ditch shall have the exclusive right to the water, or so much thereof as shall be necessary for his purpose, and if at any time the water so required shall be taken for mining operations the person owning such water shall be entitled to damages. § 534. Construction of Canals and Acequias.-Secs. 3207 to 3210 provide that all owners and proprietors of arable land bordering upon or irrigable by any public acequia shall labor 1 See Rev. Stat. Arizona, Secs. 3199-3226. on such public acequia, whether such owners or proprietors cultivate the land or not. Then follow provisions that all persons interested in the public acequias, whether owners or lessees of land, shall labor thereon in proportion to the amount of land owned or held by them. Sec. 3210 provides: "That in case a community or people desire to construct an acequia in any part of this Territory and the persons desiring to construct the same are the owners or the proprietors of the land upon which they design constructing said acequia, no one shall be bound to pay damages for such land, as all persons interested in the construction of said acequia are to be benefited thereby." $535. Overseers of Acequias.-It is provided that it shall be the duty of the several Justices of the Peace in the 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 of said acequia for the year. The manner of conducting such election and the number of overseers shall be regulated by the Justices of the Peace of their respective precincts, and the only persons entitled to vote at such elections are the owners and proprietors of land irrigated by the acequia. Sec. 3214. It is the duty of the overseers to superintend the opening and repairs of the acequias; to apportion the number of laborers to be furnished by the owners of lands; to regulate them according to the quantity of land to be irrigated by each one from the acequia; to distribute and apportion the water; and in making such apportionment he shall take into consideration the nature of the seed sown or planted; and to conduct and carry on such distribution with justice and impartiality. During the years of scarcity of water owners of fields shall have preference of the water for irrigation according to the dates of their respective occupation of the land, either by themselves or their grantors. Then follows provisions that it shall be the duty of owners of lands to furnish laborers as required by the overseer; for the removal and punishment of the overseer in case of wilfully neglecting or refusing to fulfill the duties of his office, or for malfeasance in office. Fines are prescribed for the refusal of land owners to furnish the number of laborers required; for the interference with the acequia or works without the consent of the overseer; all of which fines and forfeiture shall be for the benefit of the public acequia.1 § 536. Riparian Rights in Arizona.-The doctrine of riparian rights as recognized by the common law is entirely abolished by statute, which provides: "The common law doctrine of riparian rights shall not obtain or be of any force or effect in this Territory." 1 See the case of Dyke vs. Caldwell, Ariz. 18 Pac. Rep. 276; also Clifford vs. Larrien, Ariz. 11 Pac. I. Subject Treated in General. § 537. Particular Features of Territory.-The Territory of New Mexico can be divided into three great geographical divisions. On the eastern portion are the broad plains which are a continuation of the staked plains of Texas. These plains, extending nearly one-third across the Territory, gradually rise to form the plateau which is the base of the Rocky Mountains. On the western side of the mountain ranges is the long narrow valley of the Rio Grande, which traverses the Territory from north to south, being confined for a great portion of its way by lofty mountain ranges. In the central and southern parts of the Territory are elevated table lands, arid in the extreme, which are useless even for grazing, although their soil could be rendered extremely productive by the application of water. Taking the Territory as a whole the water supply is comparatively well distributed, nearly all the counties of the Territory having their small rivers, and some of them large ones. ever, much of the water is far below the best arable land Unfortunately, howlevel of some of the The Rio Grande § 538. Irrigation in the Territory. Valley has from the earliest times been the home of agriculture and irrigation. The original Indian inhabitants, and subsequently the Spanish invaders, took water from the river and its tributaries not only in very much the same manner as that now prevailing, but even to some extent by the same ditches. Each town or group of farmers has its own ditch. Owing to lack of system there is great loss of water, which might often be avoided by a single well built canal in lieu of many temporary poorly constructed ditches. As in the case of Arizona, it may be said that in New Mexico also nearly all the water that can be taken out upon the arable land by the efforts of individuals or of farmers acting in partnership has now been appropriated, and further agricultural growth can only be developed by greater economy in the use of water and by the conservation of the flood waters. II. Statutory Enactments. § 539. General Provisions.-Public Acequias.—The irrigation laws of New Mexico, as well as those of Arizona, are based upon the Spanish and Mexican laws governing that subject. In Chapter 1, Title 1, of the compiled laws of New Mexico are statutory provisions which upon examination will be found to differ considerably from the laws of the other States and Territories upon the subject. The following is the substance of that chapter:1 Section 1 provides: "No inhabitant of this Territory shall have the right to construct any building to the impediment of irrigation of lands or fields, such as mills or any other property that may obstruct the course of the water; as irrigation of the fields should be preferable to all others." Provisions are made for the construction of public ditches or acequias in any part of the Territory; rights of way are 1 Compiled Laws of New Mexico, Secs. 1-53. |