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tion. In the Eastern hemisphere that occurred in the plains of Assyria, in the valley of the Nile and in certain portions of India; in the Western hemisphere in Peru, Mexico and what is now the southwestern part of the United States.

The entire system of law everywhere has grown out of the necessities and consequent customs of our race.

By the Louisiana purchase, covering part of Colorado, and by the treaty of Guadalupe Hidalgo ceding another part, the United States, subject to certain pre-existing grants recognized by the latter treaty, became proprietor as well as sovereign. Its proprietorship was an incident of its sovereignty, so the Government was the primary source of title. It later surrendered most of its sovereignty to the several States, and much of its ownership. to private persons and their assigns.

Following these cessions, the common law (because the United States historically succeeded English sovereignty in America), speaking generally, became the dominant system in the acquired territory rather than the pre-existing rules of the civil law which had its origin in arid or semi-arid countries.

But as has ever been true in the history of the common law, one of its essential principles is its adaptation to new conditions and situations. So its adoption by statute in the several States and territories, as a rule was as it existed down to the fourth year of James I and usually, as in Colorado, "so far as the same is applicable". This was also true in Illinois. In that State in an early case the common law with reference to fences was held not adopted because not applicable to the then conditions there.

The same custom as the ancient one referred to by the Supreme Court of Arizona arose in the western territory almost immediately after the treaty of Guadalupe Hidalgo, because of the discovery of gold in California. The diversion of water from natural streams and the system of rules incident to such appropriation arose in miners' camps and was recognized by custom and mining regulations, later by statute law. This custom was

recognized by Congress in the Act of 1866. That Act was construed by the Federal Supreme Court as a recognition of a preexisting status, in Jennison vs. Kirk, Atchison vs. Peterson, and other cases.

In those cases the court declares that the Act of 1866 only recognized what without it would undoubtedly be the law. In some of the Western States there has been a dual system, the riparian doctrine being recognized in part and the appropriation doctrine in part. Perplexing questions have arisen in such States, particularly in California, Washington, Oregon, South Dakota, and of late in Nebraska. In other States, such as Colorado, Wyoming and Montana, the riparian rule has been almost if not fully discarded. In such States, by the Act of 1866 and its judicial construction, the common law, it appears, never was applicable to flowing water, though as to inter-state streams where different systems prevail in the States affected, some perplexing questions are bound to arise.

It is my understanding that Congress has not changed or in any way rescinded, repealed or qualified the Act of July 26, 1866, as to waters unappropriated at date of the Reclamation Act. On the contrary, as Mr. Bannister has pointed out, that Act recognized the continuing force of the former statute and sought to avoid, as has the Federal Supreme Court, the delicate question of dual sovereignty.

So far as I am now advised, the present claim of the federal government is not based directly on the exact words of the Reclamation Act, but upon a regulation of the Department of the Interior assumed to be thereby authorized.

There is a question of grave moment concerning the constitutionality of certain features of the Reclamation Act itself. Where anything therein is sought to be extended by departmental regulation to increase Federal control beyond the obvious meaning of the statute, judicial questions to arise are fraught with less

danger to us than would be the case had Congress in part repealed any part of the Act of 1866.

A very interesting case arose in the United States Supreme Court from the State of South Dakota, viz.: Sturr vs. Beck, 133 U. S., wherein the opinion was by Chief Justice Fuller. It was recognized that private riparian owners had the right to have the water flow as it had been wont at time of their acquisition of title from the government, though as to public land, the government had waived its riparian rights for the benefit of appropriators. It was there held, that when the government ceases to be the proprietor, the right of the riparian owner attaches and could not be subsequently revoked.

Another very interesting case arose where the United States Supreme Court, in part, reached a conclusion similar to that contended for by Mr. Ethelbert Ward before Judge Cavender. Attorney General Farrar states the case I have in mind is United States vs. Winters. A reservation had been established to develop land to aid in civilizing certain Indians by means of agriculture. The court there in effect held, that only a certain part of the water in the running stream would be needed for the reservoir, so later appropriators had a right to divert the remainder, leaving sufficient for needs of the reservation, but no more.

I can not believe said case justifies the contention that when there is some reclamation project in contemplation requiring twenty years or so to mature, having in view the irrigation of an indefinite area of land, the departmental officials can arbitrarily segregate all the water of a running stream and thus deny the -established law permitting later diversion of the water now unappropriated; or that either under the status of the Government as proprietor or as sovereign, the department can go to that length.

Of course close questions arise about the doctrine of relation to fix the date and amount of an appropriation. That doctrine is quite flexible on the subject of what is a reasonable time. Under certain rules where the Government has actively entered on a

particular reclamation plan, it is hard to say how much water may ultimately be held to have been appropriated as of the initial steps. Many of these questions are of very great nicety.

There is impropriety, of course, in being too positive about matters still open for judicial settlement in pending cases.

I consider Mr. Bannister's paper, with the suggestions it contains, as presenting one of the most interesting subjects in American jurisprudence.

President Dubbs:

C. D. Hayt:

Mr. President, may I say a word with reference to Mr. Bannister's paper?

President Dubbs:

Yes, indeed. The chair was simply going to suggest, Judge Hayt, in view of the fact that we have certain special orders and unfinished business, if it met with the favor of the Association the chair would postpone further discussion of Mr. Bannister's interesting paper until after we had approached the time of election of officers, when we could regulate our time better, but if you desire to speak only for a few moments at this time I will not make that announcement.

C. D. Hayt:

I wish to speak for just a moment. I want to congratulate Mr. Bannister as well as the Association on the very able and effective paper which he has read before us, and particularly upon the fact that he has reached what we all consider the correct result. It was one of the most effective papers, in fact, that I have ever heard, because it brought results (by the downpour of rain which we have just had) before the reading of the paper was finished. (Laughter.)

There is one thing to which I want to call attention, and that is what has been said with reference to Judge Cavender's decision.

I know nothing about that decision except what I have heard here this afternoon. My inference is that it is not at all contrary to the general conclusion reached by the paper which has been read to us. As I understand from Mr. Bannister's statements, enlarged upon by the gentleman from Weld County, Judge Cavender simply decided something like this, which is in entire harmony with the argument and conclusion reached by Mr. Bannister, that under the peculiar circumstances on the Western Slope, the Government having entered into this project under our State law, and made a filing, I presume, although it was not stated, that the Government then could appropriate, although the water had not actually all been applied to the land.

I have heard from other sources that this project was partly constructed, a large amount of money had been set aside to go on with the construction, and that the water, or several hundred cubic feet per second of time had actually been applied to the land.

The gentleman nods his head that that is a correct statement. So that all the learned judge of that district court decided, so far as I am advised, was that under the circumstances the Government was entitled to a decreed priority as against everybody coming subsequent to that time. Now, that was necessary under the circumstances, in order to protect the Government's rights. I do not think we should complain of it, but I believe it may be declared in harmony with the Colorado decisions.

President Dubbs:

Gentlemen, if there is no objection, we will proceed to the business in its regular order, and we will have the further discussion of Mr. Bannister's address at the time indicated by me.

I believe we now have pending the matter of the report of the Special Committee on Nomination of Judges by the Bar, for which Mr. Lawrence Lewis was going to prepare a formal motion.

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