in writing at a conspicuous place at the point of the intended diversion, and within twenty days thereafter a copy of the notice must be filed with the County Recorder of the proper county, which in addition to the facts required to be stated in the posted notice must contain the name of the stream, if such stream have a name, and if it have not, such a descrip tion of the stream as will identify it; and an accurate description of the point of diversion on such stream, with reference to some natural object or permanent monument. The recorded notice must be verified by the appropriator or some one in his behalf. Within forty days after posting such notice the appropriator must proceed to prosecute the construction of the works and must prosecute the same with reasonable diligence to completion. A failure to comply with the provisions of this Act deprives the appropriator of the right to the use of the water as against a subsequent claimant who complies therewith, but by complying with its provisions the right to the use of the water shall relate back to the date of posting the notice.1 The Act also provides that former rights to water must be established by filing in the office of the County Recorder a declaration in writing, containing the same facts that are required in the notice provided for record. "Sec. 1262. The measurement of water appropriated under this chapter shall be conducted in the following manner: Α box or flume shall be constructed with a head-gate placed so as to leave an opening of six inches between the bottom of the box or flume and lower edge of the head-gate, with a slide to enter at one side of and of sufficient width to close the opening left by the head-gate by means of which the dimensions of the opening are to be adjusted. The box or flume shall be placed level and so arranged that the stream in passing through the aperture is not obstructed by back water or an eddy below the gate; but before entering the opening to be measured the stream shall be brought to an eddy, and shall stand three inches on the head-gate and above the top of the 1 As to Construction of Sec 1258 see Salazer vs. Smart, (Mont) 30 Pac. Rep. 676. opening. The number of square inches contained in the opening shall be the measure of inches of water." 1 § 552. Sale of Water.-Secs. 1253 to 1255 of the Compiled Statutes of Montana provide that any person having the right to use, sell or dispose of water, and engaged in the same, who shall have a surplus of water not used, are required upon the payment or tender of an amount equal to the usual customary rate per inch to convey and deliver to the parties requesting it the surplus of unsold water. But the parties desiring to avail themselves of this provision shall at their own cost or expense construct or dig the necessary ditches to receive and convey the necessary water desired by them, and shall pay or tender to the ditch company an amount equal to the cost or expense of tapping any gulch, stream, reservoir, ditch, flume or aqueduct, and putting in gates, gauges or other necessary appliances, and until the same is done the delivery of the said surplus water shall not be required. That any person constructing the necessary ditches, and making the payments or tender provided, shall be entitled to the use of so much of the surplus water as said ditches shall have the capacity to carry and for which payment or tender shall have been made, and may institute and maintain any appropriate action at law or in equity for the enforcement of such right or recovery of damages arising from a failure to deliver or wrongful diversion of the same. § 553. Condemnation Proceedings for Right of Way for Irrigation Ditches.-On March 6, 1891, there was approved "An Act to define the mode of procedure in relation to right of way for ditches, flumes or canals for irrigating or other purposes.' 2 In an action for damages for the unlawful diversion of water, an instruction in substance that the extent of the plaintiff's appropriation is determined by the capacity of his head-gate and ditches, measured as required by statute, is not error, in that it The Act provides that where the right of way cannot be acquired by agreement between the parties then the ditch owners seeking to acquire the right of way may present to the Judge of the District Court of the proper district a petition praying that such right of way be granted. That upon the filing of the petition by the Clerk of the Court the Judge shall cause a citation to issue, requiring all parties interested to appear before the Judge on a day therein named; such citation shall be served on each of the parties in the manner prescribed by law for serving summons in ordinary proceedings. Upon a day set the Judge shall hear the allegations and proofs of the respective parties, and if he is satisfied that the petitioner can only be conveniently supplied with water by means of the privilege prayed for he shall make an order adjudging and awarding such right of way, and shall appoint three commissioners to assess the damages resulting to the land affected by such order. The commissioners must examine the premises assessed and report to the Court the damages. Upon the payment of the sum assessed, or a tender thereof, then the petitioner is entitled to the right of way as prayed for and may immediately proceed to occupy the same, and to construct thereon such works as are necessary. Proceedings for appeal are then provided, but the prosecution of any appeal shall not hinder, delay or prevent the appellee from exercising all the rights and privileges granted in the decree, provided he shall file with the Clerk of the Court a bond of sufficient sureties in double the amount of the assessment appealed from. § 554. Riparian Rights.-The statutes of Montana entirely ignore the rights of riparian proprietors. It will also be noticed that from the very first the decisions of the Court are to the effect that rights to water can only be acquired by appropriation of the same to some beneficial use or purpose, and that the common law riparian rights are not recognized or protected by the Courts. 559. Duties of ditch owners.Rates of charges for water. 560. Authority of County Commissioners. 561. Water districts.-Water Commissioners. 562. Royalties prohibited-Illegal Section. 563. Adjudication of water rights. Division 567. State Engineer, duties of. 568. Regulation of the distribution of water. 569. Water poses. for domestic pur 570. Conveyance of water rights. IRRIGATION DITCH CORPO III. RATIONS. 571. Corporations.- How Organized. Right of way. 572. Same.-Assessments.-When compelled to furnish water. rate. Excess how recov- 573. Riparian rights in Coloered. rado. I. Subject Treated in General. $555. Particular Features of State.-Irrigation.-Colorado is the summit of the continent. Waters flow from it to the north, south, east and west. The western two-thirds of the State is traversed with immense mountain ranges. Stretching from the eastern base of the foothills extends a long and gentle slope of the plains falling in the hundred miles from the mountains to the eastern border from an altitude of from five to six thousand feet to thirty-five hundred feet. This section of the country is very dry, and these plains furnish no large streams until we reach their eastern border. The State is divided into two portions by the continental divide, with different conditions affecting the art of irrigation—the eastern portion with much land and relatively little water; the western with these conditions reversed. Within the last few years irrigation has received a great impetus and many systems of considerable size have been constructed. But, as in the case of many of the other western States, the water supply is entirely inadequate to the demand. based upon this demand the important movement for storage reservoirs is receiving attention. This movement is most marked in regions where settlements have been made the longest, and consequently where the demands for water are greatest. II. Statutory Enactments.-State Control of Waters. § 556. Constitutional Provisions.-Article XVI., Secs. 5 to 8 contain the following: "The water of every natural stream not heretofore appropriated within the State of Colorado is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided." "Sec. 6. The right to divert unappropriated waters of any natural stream for beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the same for manufacturing purposes." "Sec. 6. All persons and corporations shall have the rightof-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of |