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seems, they might, instead of narrowing it for the preservation of timber trees alone, as in fact they did-would not some fish been spared the chancery net? These digressions need not be pursued; but in this connection, it perhaps remains to be said that if the only equity quality lacking in these common-law writs was their power to compel a discovery, as intimated by the great English commentator, then one line of statute could have added that power, unless, indeed, some judge had been previously found to screw his courage to the sticking point. Then in due time would the age-long controversy between law and equity have been settled, at least so far as the forum and methods of procedure for the prosecution of suits are concerned, and the great judge whose name is mentioned at the beginning of this paper, been spared the humiliation of having his judgments at law justly arrested by an injunction from a chancellor by no means his peer in learning or virtue and after a contest the bitterest in judicial history.

It is neither desirable nor necessary for me to comment upon all the recent rules; but one especially is in accord with the spirit. of my theme. It is rule 7, as follows:

"When it appears that the issues of fact are not clearly defined by the pleadings, the parties before trial, on motion of either, or by order of the court or judge may be directed to prepare and sign a statement defining such issues. If they do not agree, such issues shall be settled by the court or judge. The trial of facts shall be limited to those thus fixed. The statement of such issues shall be filed with the clerk, and with the exceptions thereto, if any, duly noted thereon, signed by the judge, shall become a part of the record in the cause. statement may be amended".


In the opinion of the writer, Rule 7 above justifies the act of 1913, and the solicitude of this Association in the progress of the law authorizing it through the legislature. The rules do not

change the forms of actions, nor effect any radical changes in pleadings. They seek to expedite justice, to reduce the number of cases brought before the Supreme Court, to minimize the number of errors in those cases which are to be considered there, and to impress upon trial courts and members of the Bar, as well as the community at large, a clearer appreciation of their responsibilities. If I read the act which authorizes these reforms aright, and understand the motives of those who fostered it, we have here. an attempt to "get back", to use a phrase of your president in his annual address of last year, "to the original tradition of the common law".

It is hoped that the rules will not be greatly multiplied. Imperfect as the Colorado code of civil procedure is, with its 478 sections, as any human product must be, it is incomparably superior (because simpler) to that of any of the other code states with which I am familiar. The Illinois practice act, which is the common law slightly tempered by statute, is to many, desirable. But "the merits of the New York code will have to be diligently sought for in nearly four thousand sections of statute law, burdened with a gloss of countless decisions".26 Missouri, its eldest daughter in the code system, has twice as many sections as Colorado, Ohio, California-but why enumerate? Their acts are "as the stars for multitude". Of the new English system of procedure, writing a few years ago, à learned author says: "Its merits will have to be ascertained from the Annual Practice Compilation, which presents to the student an intricate and tangled net of statutory provisions, court orders, and judicial interpretations".27 One of the distinguished gentlemen who participated in the formulation of these rules, told the writer recently that after inviting suggestions, upon the passage of the act by the legislature, from eminent jurists and practitioners the country over, his committee was surprised at the number of recommendations re

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ceived which had been anticipated and carried out in the Colorado code more than thirty years before.

Time, perhaps a short time, will test the merits of the new rules. But there should be a division of responsibility in their working out. "The excellence of a procedural system is to be tested by the ease with which it lends itself to practical use. As practice discloses weakness in its fabric the practitioners themselves should be free to devise amendments and changes calculated to remedy such defects. The users should be also the designers and adjusters".28. I do not speak with authority, but I venture to say that the judges will themselves welcome all proper suggestions in this behalf.

To what end? To the end that "old father antic, the law", to use Falstaff's phrase, may be cured of his "lameness" and strike a steady pace!

For this "consummation devoutly to be wished", gentlemen, of the Supreme Court, your petitioners, as in duty and affection bound, will ever pray.

28 Sunderland, Rep. Am. Bar Assn., Vol. 38, p. 911.






Mr. President, and Members of the Colorado Bar Association:

This morning we listened to a delightful paper by Dean Fleming of Boulder, on Common Law Procedure, a paper full of instruction and quaint humor. As I heard him read it, this thought came to me-if the Dean could be so entertaining with a subject as dry as Common Law Procedure, what would he be with one as wet as mine-THE QUESTION OF FEDERAL DISPOSITION OF STATE WATERS IN THE PRIORITY STATES? (Laughter.)

My own topic and the method of treating it are such that for the sake of clarity, it is best to state at the outset that, in his address, I take the position that the power of disposing of the waters of the state is lodged not in the federal government, but in the state. The theory by which I reach this conclusion is that there is a distinction between sovereignty and ownership; that prior to statehood, the United States had sovereignty over but not property in the waters; that by conferment of statehood, this sovereignty was passed to the state which, in a consequence thereof, became vested, to the exclusion of the federal government, with power to dispose of the waters and to create either in itself or in others property rights in respect thereto.

Which has the authority-the federal government or the state to dispose of the waters of the streams in our priority

states? In other words, which of the two is to determine what the system of water rights for the state shall be-for instance, whether riparian or priority-and to dispose of rights to water thereunder? Here we have the greatest and most interesting of the many unsettled questions in the law of western water rights.

What difference does the decision make? A very decided one. If, for instance, the federal government has the authority, then the State Engineer of Wyoming is wrong in his contention that the Reclamation Service has no right to divert from the North Platte in Wyoming a large quantity of water for the irrigation of land in a neighboring state; and the Department of Justice at Washington is right in the position which, largely through the able efforts of one of the staff, Mr. Ethelbert Ward of Denver, it has recently taken in asserting that all stream waters not yet appropriated in the priority states are subject to disposition by the federal government and not by the state. This position, I am reliably informed, was actually adopted on Mr. Ward's presentation by no less able a judge than the Honorable Charles Cavender, sitting at Grand Junction as judge of the district court of Colorado, in an adjudication proceeding for the adjudication of ditches in Water District No. 40.

Indeed, if the authority in question is lodged in the federal government, then, except to the extent of the government's consent, the state may not ordain or maintain any system of water rights at all or determine by whom rights to water may be acquired or upon what terms or what the nature of the right shall be.

Such consequences, indeed, justify the inquiry-which, the federal government or the state, is the disposing authority?


Two distinct systems of water law are known to the people of the United States: First, the riparian; second, the priority or appropriation. A water right, under either system, is not ownership of the water itself as it exists in the natural source of supply,

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