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select said lands, for each purpose as hereinbefore designated, in legal subdivisions, of not less than one quarter section, and shall report to the Secretary of the Interior such selections, designating in such report the purpose for which such bodies of land as selected are to be respectively used as provided above in this act.

SEC. 10. That the lands reserved for university purposes, including all saline lands, and sections sixteen and thirty-six reserved for public schools, may be leased under such laws and regulations as may be hereafter prescribed by the legislative assembly of said Territory; but until the meeting of the next legislature of said Territory, the governor, secretary of the Territory, and the solicitor-general shall constitute a board for the leasing of said lands: and all necessary expenses and costs incurred in the leasing, management, and protection of said lands and leases may be paid out of the proceeds derived from such leases. And it shall be unlawful to cut, remove, or appropriate in any way any timber growing upon the lands leased under the provisions of this act, and not more than one section of land shall be leased to any one person, corporation, or association of persons, and no lease shall be made for a longer period than five years, and all leases shall terminate on the admission of said Territory as a State; and all money received on account of such leases in excess of actual expenses necessarily incurred in connection with the execution thereof, shall be placed to the credit of separate funds for the use of said institutions, and shall be paid out only as directed by the legislative assembly of said Territory, and for the purpose indicated herein. The remainder of the lands granted by this act, except those lands which may be leased only as above provided, may be sold under such laws and regulations as may be hereafter prescribed by the legislative assembly of said Territory; and all such necessary costs and expenses as may be incurred in the management, protection, and sale of said lands may be paid out of the proceeds derived from such sales; and not more than one quarter section of land shall be sold to any one person, corporation, or association of persons, and no sale of said lands or any portion thereof shall be made for less than one dollar and twenty-five cents per acre; and all money received on account of such sales, after deducting the actual expenses necessarily incurred in connection with the execution thereof, shall be placed to the credit of separate funds created for the respective purposes named in this act, and shall be used only as the legislative assembly of said Territory may direct, and only for the use of the institutions or purposes for which the respective grants of lands are made: Provided, That such legislative assembly may provide for leasing all or any part of the lands granted in this act on the same terins and under the same limitations prescribed above as to the lands that may be leased only, but all leases made under the provisions of this act shall be subject to the approval of the Secretary of the Interior, and all investments made or securities purchased with the proceeds of sales or leases of lands provided for by this act shall be subject to like approval by the Secretary of the Interior.

"SEC. 11. That there is hereby appropriated from the unexpended funds in the Treasury of the United States, ten thousand dollars, or so much thereof as may be necessary, to be expended under the direction of the Secretary of the Interior, for the purpose of paying the expenses of the selection and segregation of said respective bodies of land, including such compensation as the Secretary of the Interior may deem proper.

"SEC. 12. That all acts and parts of acts in conflict with the provisions of this act, whether passed by the legislative assembly of said Territory or by Congress, are hereby repealed."

It will be apparent to everyone acquainted with the conditions existing in New Mexico, that the location and selection of these lands is going to be a matter of enormous importance, and that it will depend solely upon an intelligent selection whether they shall ultimately become saleable or productive of income by way of rental so as to accomplish the purposes for which the law is designed. There are large quantities of public land in the Territory which never will become saleable at the price fixed by the law, and which could not be leased for any appreciable interest on that price, especially with the restriction as to quantity of land to be leased or sold to any one person. On the other hand, there are many localities where lands will ultimately attain the maximum value of farming lands by reason of their proximity to eligible sites for future water storage and irrigation systems. To be of permanent value, a large part of the donated land ought to be selected with reference to their future réclamation in this way. For such selections there is at the present time no reliable guide. The information in possession of the United States surveyor-general would not suffice for this purpose. Nothing short of an examination by competent hydraulic engineers would furnish the facts which are absolutely essential.

Second. The injury to the people of New Mexico by the increased and constantly increasing appropriation of water from the head tributaries of the Rio Grande in Colorado.

Sooner or later this is bound to become an interstate question, and in order that the interests of New Mexico shall be properly guarded it will be essential that her representatives be armed with absolute and accurate information touching the flow of water in the Rio Grande and its tributaries, covering not only present conditions, but an accumulation of statistics as to the past. Colorado, with its wellorganized and liberally supported State engineering department, has a great advantage over us in this respect. Nothing short of a systematic study of these matters, continued through several years, will be adequate to enable us to meet this question when it comes to an issue.

Third. Possible future legislation.

The interests of irrigation are not uniform throughout the Territory on account of the wide differences in latitude, elevation, and character of productions. This is why, as we show further on, any attempt at legislation beyond the general principles already well established is not advisable at the present time. It is impossible, with the information now in hand, to determine beforehand whether any given scheme of legislation desired by and applicable to one part of the Territory may not be the cause of great injury and injustice to another. To enable future legislators to exercise their proper and only legitimate function, viz, that of enacting laws for the benefit of the whole people, the information which might be accumulated by further systematic investigation of these water questions will be absolutely necessary.

One of the duties imposed upon the commission by the act creating the same was the examination into the laws with reference to irrigation and water rights in force in New Mexico, and in other states and countries, and to recommend such legislation as, in the opinion of the commission, will meet all requirements of this subject.

Serious attention has been given to this branch of their duties by the members of the commission, who have brought to their aid the experience and advice of many of the prominent citizens of the Territory and elsewhere, deeply interested in the study and possibility of irrigation. One of the most serious impressions resulting from a study of this branch of the commission's labors is that great embarrassments or losses will almost inevitably occur in making any change that trespasses upon the general system of laws now in force; a very large part of our people, thoroughly understanding the rights which they now have in and to waters beneficially used by them, are strongly distrustful of any proposed change thereof, the demonstration of the result of which they have not seen in practical working. There is a widespread and largely justifiable impression prevailing that the result of changing the present irrigation laws of the Territory in any essential respect would be to disturb vested rights, and to unsettle public confidence in legal rights which have long been owned and beneficially used in the great portion of the waters of our streams. For this reason it was determined by the commission, after thoroughly canvassing the subject at its first meeting, that any and all recommendations from the commission along this line should be of the most conservative character, and that, before any change in the laws was recommended, there should be a close study of the laws and methods of enforcing them as now existing, and unless it was apparent that changes could be recommended which would be of considerable advantage to the public at large, it would be better to recommend that no changes whatever be made. With this spirit the commission, through its committees, entered into the task of the analysis of the present laws of the Territory. These were found to consist of certain Territorial statutes, of several acts of Congress, and of principles announced by the supreme court of the Territory independent of statute.

The first statutory law we have on the subject is the provision of the Kearny Code of 1846, to the effect that all laws in force at the time of the promulgation thereof, concerning water courses, should continue in force. Kearny Code, September 22. 1846, Tit. Water Courses. Sec. 1. (Compiled Laws, 1897, page 89.) This reference was, undoubtedly, to the Spanish-Mexican laws then in force with reference to the control of water; and, while the commission has not seen fit to go into a special study of the laws thus referred to, it is believed that such reference thereto was intended to apply to the system of community ditch laws, which at that time regulated the rights of the owners thereunder in this Territory, in common with the great body of Mexican possessions in the arid section, and that, at such time, almost all rights claimed by the citizens of New Mexico in the waters of any of its streams were by virtue of such community laws, and that the individual rights of private owners of ditches had not at that time assumed such value as to attract the necessity of legislation to protect the same.

The assumption that the language referred to in the Kearny Code was directed particularly to rights owned under the community system, received additional strength from the fact that the legislative assembly of 1851 and 1852, following close upon the promulgation of the Kearny Code, adopted a set of laws with reference to the community ditch system, which laws were largely the crystallization into statutes of the principles theretofore governing such questions, and the customs arising thereunder. Act of July 20, 1851, page 189. Act of January 7, 1852. page 276. (Compiled Laws, 1865, chap. 1, secs, 1-8. Id. secs.. 9-26.)

It is to the Spanish-Mexican laws, therefore, and to legislative enactments beginning in 1851, continuing more or less to the present time, that we owe the present acequia laws of the Territory. The continuance of this system, admirably adapted to the necessities of the people living in the most thickly inhabited parts of the Territory, has been productive of good results where the spirit of the law has been enforced.

Act

Amendments to the laws of 1851 and 1852 were enacted in 1861, regulating the working on public acequias. Act of January 29, 1861. (Compiled Laws, 1865, secs. 27-32.) Also, in 1863, regulating the control of ditches by overseers. of January 28, 1863. (Compiled Laws, 1865, secs. 33-39.) Also, in 1866, regulating the repair and relocation of ditches when injured or destroyed by floods. Act of January 18, 1866, pages 90-96. (Compiled Laws, 1897, chap. 1, secs. 25-30.) In 1874 the legislature extended the right to all persons to construct private acequias and take water therefor from any available source, with a provision for compensation of the owners of the land through which the necessary ditches were constructed; and simple and inexpensive methods were prescribed by which such terms should be assessed and such rights recognized. ́ Act of January 9, 1874, page 28. (Compiled Laws, 1897, chap. 1, secs. 23, 24.)

On February 24, 1857, an act was passed, applicable only to corporations, providing for the organization of such for the purpose of constructing and maintaining reservoirs, canals or ditches, and pipe lines, in order to supply water for irrigation, mining, manufacturing, domestic and other public uses, including cities and towns, and for the purpose of colonization and improvement of lands in connection therewith. This act gave full authority to corporations formed thereunder to acquire water and water rights, either by purchase or condemnation, and to construct ditches, canals, and reservoirs to be used in connection therewith. Laws of 1887, chap. 12, page 29. (Compiled Laws, 1897, chap. 1, secs. 468-493.)

On February 20, 1889, an act was also passed providing that incorporated towns and villages exceeding in population 3,000 persons should have certain priority for the use of water in streams upon or near which they are situated. Laws of 1889, chap. 70, page 150.

On February 26, 1891, another act was passed providing a method by which a record of the subsequent construction or enlargement of any ditch, canal, or feeder for a reservoir taking water from a natural stream should be made, and by which legal appropriation of water should be made, and defining in some particulars the essentials of such legal appropriation. Laws of 1891, chap. 71, page 130. (Compiled Laws of 1897, secs. 493, 494.)

These acts are the only ones announcing any principles adopted by the Territory for the determination of rights respecting water, and, together with two or three minor acts authorizing various counties to assist in irrigation enterprises, and the act of February 13, 1893, exempting all irrigation ditches, canals, and reservoirs from taxes for a period of six years after the commencement thereof, they form the body of Territorial enactments on the subject of water rights.

It will thus be seen that, while our statutory laws on this subject are fragmentary, there is no contradiction or unprogressive feature incorporated in any of the same. On the other hand, they have been found to be simple, in the main logical, and in view of the conditions, both of land and people, have been proved to be beneficial in their workings to the great body of the people. An analysis of these laws shows that they provide for and protect the Spanish-Mexican theory, under which, as stated above, good results have been obtained, and that they also protect and encourage individual enterprises; and that the principles of such laws, as reenforced by the interpretation of the courts, protect each system from any trespass whatever upon the other.

As the ideal of beneficial legislation is the least possible regulation necessary with reference to a given subject, it would appear that our legislators in the past have most promoted the irrigation interests and the development of the Territory by their remarkable conservatism in legislating upon this subject. Few laws have been deemed necessary other than the community system of laws above mentioned, and these have, as above stated, been enacted. The principles of these

laws are easily construed by the courts, and very little difficulty is found in following and putting them into effect. There is no subject with reference to which the laws of the Territory (both the community and private water appropriations) are better understood by the people, or with reference to which principles are more definitely established. We are very largely indebted for this, not only to the above legislation and the decisions of our own courts, but to the decisions of all the courts in the arid States and Territories, in all of which the right to appropriation of surplus waters of all streams is recognized and upheld, qualified only by the doctrine that priority in time gives priority of right; that rights claimed must be perfected with due energy; that the appropriation must be made for beneficial purposes, and is limited to the amount needed for such purposes.

While the legislation of the various States and Territories varies considerably, yet it is believed that all of them recognize this doctrine as above defined. În several of the States and Territories it was early contended that the acts of the citizens thus taking possession of and diverting the water from the streams thereof were contrary to the principles of the common law, which recognizes the rights of riparian owners along such streams; and because of this belief and the confusion into which some of the courts fell in interpreting the rights thus claimed, as well as because of the fact that the rights claimed by different appropriators were found, in many instances, to trespass upon each other, a great amount of litigation, in which the doctrine of the right of appropriation has been involved, has arisen all over the West. Through this litigation it is believed that all questions capable of giving rise to embarrassing disputes concerning the uses of water have practically been settled and adjusted, and the public made familiar therewith. There is a great unanimity of decisions in establishing such principles, and where there is any serious variance it has been caused by local statutes. Indeed. so common was the acquiescence of the public in the rights and principles which governed the appropriation of water, that early in the history of the arid West the Congress of the United States recognized such rights by the law now embraced in sections 2339 and 2340 of the Revised Statutes thereof, which read as follows:

SEC. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the rights of way for the construction of ditches and canals for the purposes herein specified, is acknowledged and confirmed.

SEC. 2340. All patents granted or preemption or homesteads allowed shall be subject to any vested and accrued water rights or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the preceding section."

These enactments of Congress have been repeatedly construed by the Supreme Court of the United States, and the opinions contained in such decisions and the announcement thereof. have been a material assistance to all of the States and Territories affected thereby, and have greatly promoted the unanimity of judicial decisions referred to above.

It is therefore apparent, that though, as above stated, legislative enactments of this Territory with reference to this subject are fragmentary, yet, in view of the settled customs prevailing all over the arid West and of the enactments of Congress above referred to, additional legislation has not been and is not now essential in this Territory, to fully guarantee to the people the full and beneficial enjoyments of rights which they have always claimed and now possess. Neither is it believed that any of the statutory enactments have incorporated in the body thereof any vicious principles which might operate to impair the interest of irrigation in the Territory. The result of the laws providing for such systems so enforced in New Mexico with reference to the creation of litigation arising therefrom is the best evidence of the wisdom of that system; and while there have been from time to time some complaints of irregular diversion of water at the expense of proprietors below yet the least number of cases have ever gone beyond the trial court, and comparatively few have been commenced even; such as have arisen have been settled in the main speedily and without hardship to those having the better right to such waters.

One result of our system of laws on this subject is, that when such a case arises, our courts, not being hampered with conflicting and untried provisions, as some other courts of our Western States and Territories, have the great body of principles, as decided by other courts of last resort, to draw from in the adjustment of their decisions along the line of equity and good sense, and the widest possible latitude in putting their decisions into effect.

A notable case has recently been tried in one of the southern counties of the

Territory, involving the most complicated issues and a vast number of litigants, having some 30 or 40 parties thereto, and involving as many claims of priority for different appropriations; after the evidence had been taken, the district court (under our laws as they now stand) found no difficulty whatever in adjusting the priorities of all of these parties, and in providing by its decree a method for the distribution among all of those found to have rights thereto the insufficient supply of water over which they were litigating. This was a celebrated case, and was watched with great interest by the public; and it is believed that the result thereof brought peace to the whole community and established firmly the rights of each claimant, protecting the same as against the trespass of any other claimant, and providing a method for the distribution of the waters in such manner as could hardly have been reached under any system of legislative enactment in any of the Western States or Territories. It was a satisfactory demonstration of the wisdom of the present status of the development of our Territory, simply announc ing by legislative enactment the general principles, and leaving our courts to enforce the same by jurisdictional methods, as may be deemed equitable in each particular case.

The commission has not been unmindful of that part of the act creating the same, wherein it was directed to examine the laws of other States and countries. in determining what legislation should be recommended to the legislative assembly, and has made such study thereof as it was possible for it to make without going to the places where such laws were in effect. The legislation of such States and Territories has been carefully read, as have the decisions of the courts based thereupon; much that is admirable has been found to be incorporated in the legislation of nearly every State, along with much which it would have been best to have omitted, and in some instances it has resulted in great confusion of principles. The system adopted in each State has been found to be the result of the needs of that particular jurisdiction, and the conditions are more or less different in each State from those that obtain in any other State.

Much of this great system of laws would no doubt be of great benefit if the conditions to which the same is intended to be applied existed in our Territory, but in the opinion of the commission they would be valueless, if ingrafted into the law here, from the fact that the conditions, both as to soil, climate, water, and the disposition of the people are entirely different from those of the localities where such laws are enforced; indeed it is the varying conditions of nearly every section of this Territory, as to these essentials, which renders the work of your commission in determining what laws should be made applicable, a difficult one. General principles, of course, can be made to apply all over the Territory, but when it comes to the regulation of water rights and the rights upon which irrigation is dependent in detail, those which would be highly beneficial in one section of our Territory, would doubtless be found detrimental to other sections thereof, dependent upon altitude, climate, different character of the soil, and the necessities of the people.

After the fullest consideration which the commission has been able to make of the laws of our Territory, and those of the various Western States and Territories, it is our deliberate and unanimous conclusion, that the principles governing the law of water and the rights connected therewith in force in this Territory are sufficiently just, progressive, and simple, and that the courts have sufficient jurisdiction and authority at present to fully determine and enforce the same with justice to all, and that no change of any of the principles so enforced would be advisable; and it therefore recommends that no legislation with reference to any of such principles is at present advisable.

EXPENSES OF THE COMMISSION.

The following table shows the total expenses incurred by the commission:

To P. E. Harroun, engineer for commission, four and one-third

months, at $200 per month.

To P. E. Harroun, expenses while in employ of commission

To expenses of members attending the various meetings of com

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$866.66
102.90

$969.56

47.00

41.00

54.00

20.30

6.50

168.80

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