such as the Navajos possess a deep attachment for tribal lands, no matter how poor these may be.626

Summary

Irrigation is the artificial application of water to soil for the purpose of supplying the water essential to plant growth. Of the total land irrigated in the United States, nearly 95% lies in the 17 Western States. Federal responsibility for and participation in irrigation undertakings has assumed increasingly larger proportions since passage of the Reclamation Act in 1902.

WATER RIGHTS.-A water right is a right to the use of water, not to the corpus of the water itself. There are two fundamentally divergent doctrines of state water law which separately or in varying combination govern the rights to use water.

The English or common-law riparian doctrine, prevailing in the East, recognizes the right of a riparian owner to make reasonable use of a stream's waters, but only on his riparian lands. And all riparian owners are entitled to the continued natural flow of the stream. Rights under the riparian doctrine are not lost by failure to use the water.

On the other hand, the appropriation doctrine rests on the proposition that beneficial use of the water is the basis, measure, and limit of the appropriative right. The first in time is prior in right. Water rights are not limited to land riparian to a stream and may be lost by abandonment. The appropriation doctrine is recognized in all 17 of the Western States, sometimes in combination with various aspects of the riparian doctrine.

Rights to the use of ground water have received increasing attention as the quantity of unappropriated waters has diminished. There are indications of a trend toward conservation of ground water on a reasonable-use basis and toward applying to ground water the principles of use and administration applicable to surface waters.

626

See THE NAVAJO, Report of the Secretary of the Interior, p. VII (March 1948); Arizona Highways, p. [3] (December 1949).

Another increasingly important aspect of water law concerns the right to return flow, the right of the original diverter of waters to reuse them. There is a considerable lack of uniformity in the law respecting return flow. But the trend is toward its widest practicable use.

IRRIGATION WATER COMPANIES AND IRRIGATION DISTRICTS.As the opportunities for use of simpler irrigation structures were exhausted, larger and more complex works were built to take water farther from the stream. The larger cost involved was often met through the formation of irrigation companies. The earlier companies were usually either mutual irrigation companies or quasi-public companies organized for profit. These types were largely superseded by the irrigation districts. Each of the 17 Western States has an irrigation district statute. The powers and liabilities of such districts differ from state to state, an important feature frequently being the permission to part of the residents of an area to incur indebtedness for which all lands therein would be liable.

EARLY IRRIGATION IN THE WEST.-The early practices of miners, Mormons, and Spanish missionaries contributed to the formation and development of the modern appropriation doctrine. In any event, nature suggests that the dominant factor was the aridity generally prevailing in the West, together with quantitatively disproportionate, highly irregular, and maldistributed stream flows: Thus, judicial opinions have said that the riparian doctrine was not suited to the conditions and needs of the Western States.

The impact of the appropriation doctrine was early reflected in federal legislation in 1866, 1870, and 1877. Another early statute of importance to irrigation was the Carey Act of 1894. It provided for grants to each public-land state of up to a maximum of one million acres of desert land to aid the states in the reclamation of the land and in its sale in small tracts to actual settlers.

RECLAMATION LAW.-By the passage of the Reclamation Act in 1902, Congress established irrigation in the West as a

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national policy. With its many supplements and amendments, this Act constitutes Reclamation Law. Under the supervision of the Secretary of the Interior, activities under Reclamation Law are performed by the Bureau of Reclamation.

By the 1902 Act, the Secretary is directed to make examinations and surveys for the location of irrigation works. The scope of these investigations was broadened from time to time and especially by the 1939 Reclamation Project Act. Today, facts are collected concerning project feasibility, including cost estimates and cost allocations, and general economic and engineering matters. Provision is made for cooperation with international and interstate agencies, federal and state agencies, and interdepartmental and intradepartmental agencies. It has been provided since 1902 that reports on surveys and examinations be submitted to Congress.

In the 1939 Act, provision is made for the automatic authorization of projects upon submission of a report and prescribed findings to the President and Congress. Such authorization was made contingent, in 1944, on approval of plans and proposals by "affected" states and the Secretary of the Army.

It was originally considered that the revolving Reclamation Fund would finance new irrigation works. The Fund was established by the 1902 Act by reserving, setting aside, and appropriating moneys received from the disposal of public lands in the 16 Western States and Territories named in the Act. It has since been augmented by income from various other

sources.

Repayment of construction costs into the Reclamation Fund was a basic principle of the 1902 Act. With modifications, it has persisted ever since. In recent years, some project costs have been made nonreimbursable. These include allocations to navigation, flood control, and preservation and propagation of fish and wildlife. Power revenues are used to return part of the irrigation costs. Under the 1939 Act, the irrigation water-users' obligation is limited to whatever part of the construction costs may be allocated to irrigation and assigned for repayment by them.

Under the 1939 Act, there must be a repayment contract with an organization satisfactory in form and powers to the Secre

tary. Over the years, the original 10-year repayment period has been increased until today when a 40-year period plus a 10-year development period is provided. Still longer periods have been provided for particular projects. In general, Reclamation Law requires that water-user repayment contracts be executed in advance of delivery of water. The Bureau's usual practice has been to consummate contracts in advance of project construction.

Congress has enacted many laws governing various aspects of operation of irrigation projects. The Bureau supervises development and settlement of project lands, screens applicants for settlement, and advises project settlers concerning improved farming techniques.

The "primary objective" of the 1902 Act has been described as the establishment of farm homes. The Act limited entry of irrigated lands to a maximum of 160 acres. In 1912, it was required that any water-right applicant dispose of holdings in excess of 160 acres as a condition precedent to the securing of water. The acreage limitation has been construed, however, to permit 320 acres to be held jointly by man and wife. Moreover, the law does not preclude combined farming endeavor by any number of owners, members of a family or otherwise, so long as each owns no more than the acreage limit for any one owner.

In addition to acreage limitations, Congress has enacted various provisions designed to curb speculation in irrigated lands. Under a 1926 statute applicable today, the irrigation district withholds project water from land "in excess of 160 irrigable acres" unless the owner agrees in a "recordable contract" to sell the excess land under terms and conditions satisfactory to the Secretary. In addition, there are special acts which seek to prevent speculation in particular areas.

Operation and maintenance charges are assessed against irrigated lands during the period of government operation.

In addition to irrigation, permissible multiple purposes of reclamation projects include power, navigation, flood control, preservation and propagation of fish and wildlife, and municipal water supply and other miscellaneous purposes.

A number of statutes are related to but are not a part of Reclamation Law. For example, under the Water Conservation and Utilization Act, the Bureau of Reclamation has constructed small reclamation projects, primarily as a means of assisting and rehabilitating people and land. Provision is made for participation in this program by the Secretary of Agriculture, the Bureau of Indian Affairs, and other federal and state and local agencies. Other statutes relating to irrigation activities include the Water Facilities Act and the amended BankheadJones Act.

INDIAN IRRIGATION.-As one aspect of its special relationship to Indians, the Federal Government has long aided in irrigation operations on Indian lands. The nature of that relationship has led to many provisions of law concerning irrigation undertakings which differ widely from those summarized above.