CHAPTER XIV.

STATE ENGINEER.

G. S. 1807. Governor shall Appoint-May Remove-Office-Salary.] The Governor shall appoint a State Hydraulic Engineer, who shall hold his office for the term of two years, or until his successor may be appointed and qualified. The Governor may at any time, upon good cause shown, remove said State Engineer. Said State Engineer shall have general supervision over the water companies [commissioners] of the different water districts in the State. He shall have his office at the State capitol, in an office to be provided for him by the Secretary of State, and be subject to his direction and control; who shall also furnish him with suitable furniture, postage, and such proper and necessary books and instruments as will best enable him to discharge the duties of his office. He shall be paid a salary of two thousand dollars per annum, payable quarterly by the State Treasurer, on warrants drawn by the State Auditor. No person shall be appointed as such Hydraulic Engineer who is not known to have such theoretical knowledge and practical skill and experience as shall fit him for the position. [Sec. 6, pp. 119-20, acts 1881.

G. S. 1808. Engineer shall Measure Streams-Collect facts-Report on Reservoirs-Record.]

Said State Engineer shall make, or cause to be made, careful measurements and calculations of the maximum and minimum flow in cubic feet per second of water in each stream from which water shall be drawn for irrigation, as may be best for affording information for irrigating purposes, commencing with those streams most used for irrigation; also to collect facts and make report as to a system of reservoirs for the storage of water, their location, capacity and cost; and he shall keep proper and full records of his work, observations and calculations. [Sec. 7, p. 120, acts 1881.

G. S. 1809-Oath-Bond-Condition.]

Said State Engineer shall, before entering on the discharge of his duties, take and subscribe an oath before some officer authorized by law to administer oaths, to faithfully perform the duties of his office, and file with the Secretary of State said oath and his official bond, in the penal sum of two thousand dollars, with sureties to be approved by the Secretary of State and conditioned for the faithful discharge of the duties of his office, and for delivering to his successor or other officer authorized to receive the same, all moneys, implements, books and other property belonging to the State then in his hands or under his control, or with which he may be legally chargeable as such officer. [Sec. 8, pp. 120-1, acts 1881.

G. S. 1810. May appoint Assistants-Pay-Certificate-Warrant.]

Said State Engineer will have power to employ assistants at an expense not to exceed one thousand five hundred (1,500) dollars in any one year, who shall be paid out of any moneys appropriated for that purpose, on certificate of said State Engineer, showing the services rendered and the amount therefor [thereof], and on presentation of such certificate to the State Auditor by the person entitled thereto, he shall issue his warrant on the State Treasurer for the amount thereof, to be paid out of any appropriation as aforesaid, and not otherwise. [Sec. 9, p. 277, acts 1883.

G. S. 1811. Annual Report-When to be made.]

Said State Engineer shall prepare and render to the government [Governor] yearly and oftener, if required, full and true reports of his work, touching all the matters and duties devolving upon him by virtue of his office, which report shall be delivered at the time when the reports of other State officers are required by law to be made, in order that they may be laid before the General Assembly at each regular session thereof. [Sec. 10, p. 121, acts 1881.

G. S. 1812. Shall measure Ditches' Feeders-Reservoirs.]

Said State Engineer shall, on request of any party interested, on payment of his per diem, charges and reasonable expenses, measure and ascertain the carrying capacity of any ditch, canal, or feeder, or any reservoir, hereafter constructed or enlarged, and give to the party or parties requiring his

services an official certificate of the size and carrying capacity of such ditch, canal, or feeder, in cubic feet per second, as he shall find it to be at the time of measuring the same. [Sec. 11, p. 121, acts 1881.

G. S. 1813. Owners of Ditches shall construct Weirs-State Engineer shall compute Water per second.]

For the more accurate and convenient measurement of any water appropriated pursuant to any judgment or decree rendered by any court establishing the claims of priority of any ditch, canal, or reservoir, the owners thereof shall construct and maintain, under the supervision of the State Engineer, a measuring weir or other device for measuring the flow, in cubic feet per second, the water at the head of such ditch, canal or reservoir, or as near thereto as practicable. The State Engineer shall compute and arrange in tabular form the amount of water that will pass such weir or measuring device in cubic feet per second, at the different stages thereof, and he shall furnish a copy of a statement thereof to any Water Commissioners having control of such ditch, canal, or reservoir. [Sec. 12, pp. 121-2, acts 1881.

CHAPTER XV.

PROPERTY IN WATER-ITS NATURE.

It has never been settled whether the owner of a ditch owns the water which he has appropriated and diverted, or has merely the exclusive right of use in it. Certainly it would seem that in the case of an irrigation ditch, the intent being to consume the water and not return it, the ditch owner would own the water which he has appropriated. Before it reaches his head-gate he has only a right to its use; he can therefore maintain an action for damages against anyone who interferes with his right, and he may enjoin any continued interference; but he cannot waive the tort and sue in contract for the value of it, in case of a wrongful diversion.

Parks C. & M. Co., vs. Hoyt, 57 Cal., 44.

Kidd vs. Laird, 15 Cal., 161.

McDonald vs. Askew, 29 Cal., 100.

Coffin et. al. vs. Left Hand Ditch Co., 6 Colo., 446.

The appropriator's right to have the water flow in the natural stream to the head of his ditch is an incorporeal heriditament appurtenant to his ditch.

L. K. River Co. vs. King's R. Co., 60 Cal., 408.

The ditch itself is of course land, and so if a ditch is built to bring water to a certain tract, the ditch is not appurtenant to the land, and a deed of the land

"and all the appurtenances thereunto belonging," would not convey the ditch, though it would the water right.

Reed vs. Spicer, 27 Cal., 61.

Quirk vs. Falk, 47 Cal., 453.

One who enters into possession of a ditch use for appropriating water, under a verbal sale made to him of the same, does not succeed to the rights of the settler so as to claim the benefit of the latter's prior appropriation of the water flowing in the same, but must date his appropriation from the time he enters into possession.

Smith vs. O'Hara, 43 Cal., 371.

Ditches and water rights, being realty, must be conveyed, like other real property, by deed. Smith vs. O'Hara, 43 Cal., 371. Lobdell vs. Hall, 3 Nev., 507.

Barclay vs. Tiekele, 2 Mont., 59.

General words granting a ditch convey the channel, the right to the water by which it is supplied, and the ditches which convey the water to it.

Ellison vs. Jackson, 12 Cal., 542.

In Schilling et al. vs. Rominger, 4 Colo., 100, it is held, that "parties by their joint acts may acquire common rights to appropriate water unaffected by the Statute of Frauds;" but on a careful examination of the case, it is found not to be in conflict with the general propositions above stated as to the necessity of a deed.

Persons who build an irrigation ditch upon government land, thereby become the owners of the ditch, and remain such as long as they use the ditch for