Early Irrigation in the West
While the time and place of its inception has been the sub-
ject of dispute, the practice of irrigation is generally accepted
to be one of great antiquity.1" Its origin has been variously
placed in China, India, Armenia, the shores of the Mediter-
ranean, and even upon the traditional lost island of Atlantis;
and it is considered certain that the practice began at least
2,000 years B. C.140
Similarly, the practice was ancient and widespread in the
New World."1 For example, the 1888 Arizona opinion in
Clough v. Wing states that evidences of the practice of irriga-
tion are found:"1
all over Arizona and New Mexico in the ancient canals
of a pre-historic people, who once composed a dense and
highly civilized population. These canals are now
plainly marked, and some modern canals follow the
track and use the work of this forgotten people.
The Court added that certain Indian tribes have for genera-
tions appropriated and used waters "in husbandry, and sacredly
recognized the rights acquired by long use, and no right of a
riparian owner is thought of." 4
Similarly, Kinney pointed out in 1912 that some of these pre-
historic canals with their laterals "must exceed a 'thousand
a See 1 Kinney, IRBIGATION AND WATER RIGHTs, 63-87, pp. 101-127 (2d
It has been said that the earliest writings concerning irrigation are those
found in the Code of Hammurabi, who lived more than 4,000 years ago.
Included among the provisions of that Code are laws defining the obliga-
tions of water users, including penalties for one who neglects to keep his
dam in repair, who opens lis canal carelessly to the injury of his neighbor,
or who steals a watering machine (fine five shekels) or a watering bucket
(fine three shekels).. Jois, THE OLDIES CODE OF LAWS IN THE WORLD,
THn CODE OF LAWS PROiUIOATED BY HAMMURAmi, KING or BAB rON,
i 53, 55, 259-260 (1903). See also PESBERVATION OF INTEGRiTr oF STATE
WATER LAws, Report and Recommendations of Committee of the National
Reclamation Association, App. G, pp. 165-168 (1943).
Id 8 63, p. 102.
Id. 77-85, pp. 114-124.
14 2 Ariz. 371, 380, 17 Pac. 451, 455-456 (1888).
"2 Ariz. at 880, 17Pac. at 456.
miles in length, and the ruins of many of them give evidence of
the expenditure of vast labor in their construction." 4" The
Mesa Canal is a restoration by the Mormons of such a pre-
historic canal." Likewise, he ruins left in Arizona are said
to have first suggested the reclamation of the valleys to settlers
in the early 1870's.'" In the Salt River Valley alone, the
amount of land practically covered by the canals in the ancient
irrigation system totaled over a quarter of a million acres, and
the population supported by the ditches has been estimated
at a half million people."7 This was the approximate popula-
tion of Arizona in 1940.18
In their early wanderings through valleys in the Southwest,
the Spaniards also played a part in early irrigation. For ex-
ample, it has been reported that an effort was made by Cruzate
in 1684 to relocate the village of Santa Fe to a point near the
Pueblo of El Paso, hoping to enlarge an existing irrigation
canal and make it available to the people.14 Another writer,
referring in 1630 to the village of Santa Fe, the residence of
government officials and some 250'Spaniards, said: "I
Proceeding westward toward the Rio del Norte *
begins the Teoas [Texas] Nation. The land
is very fertile because a Religious has brought it water
for the irrigation of its seed lands.
Later, he pointed out that the soil was fertile and "they have
harvested very good crops from the stubble of the year before
without having given it any other working than a little irrigat-
"1 Kinney, IRRIGATION AND WATER RIGHTS, 82, p. 120 (2d ed. 1912).
"Id. 186, p. 125.
14 STATISTICAL ABSTRACTS O THE UNITED STATES, p. 83 (1949).
*Hughes, THE BzSINNINGS OF SPANISH SETrLEMENT IN THE EL PASO Dis-
TBICT, University of California Publications in History, Vol. 1, No. 3, p. 328
(1914). With respect to the El Paso crop and food shortage of 1684, due in
part to the limited means of irrigation, see id. p. 361.
The Pueblo of El Paso, today known as Cuidad Juarez, Mexico, is on the
Rio Grande opposite El Paso, Texas.
1"TaP MEMORIAL OF FRAY ALONSO DE YENAVIDES, 1680, pp. 28-24 (Ayer's
Translation, privately printed, Chicago, 1916).
ing." i Following Mexico's 1821 independence from Spain,
irrigation usage in the Southwest was influenced for a time by
Mexico's colonization policies, an influence terminated as to
Texas with its independence in 1836, and as to the areas ceded
to the United States by the Treaty of Guadalupe lidalgo in
1848, and under the Gadsden purchase in 1853.1"
In the meantime, the Mormon settlers had already started
irrigation works in the Utah area. The very afternoon of their
arrival in Salt Lake Valley in 1847, it is reported that a small
advance group of these pioneers set about building an irrigation
dam." Noteworthy here is the fact that the common-law
riparian doctrine never existed in Utah, the appropriation doc-
trine deriving from custom and from territorial and state laws
now being reflected in a comprehensive water code." In addi-
tion to the irrigation operations of many individuals, millions
of acre-feet of water are today stored in Utah to furnish the
needs of hundreds of mutual irrigation companies.1 .
Early day miners also influenced the development of water
law in the West. After the 1848 discovery of gold in Cali-
fornia, a custom evolved whereby the first appropriator of
waters for miining purposes was held to have a better right
than others to use the waters.T" This custom was sanctioned
by the courts of California and other western jurisdictions. i
Id. p. 88.
For an extensive discussion of Mexican legal antecedents of Texas
water law, see Moti v. Boyd, 116 Tex. 82, 286 S. W. 458 (1926). See also
Bo*i s Lan d Cattle Co. v. Curtis, 218 U. 8. 889 (1909); Los Angeles
Farming and Milling Co. v. Cty of Los Angeles, 217 0. R. 217 (1910);
United States v. Gerlaeh Live Stock Co., 889 U. 8. 725, 742-745 (1950).
For discussion of Mexican law in relation to California water use, see
Lux v. Haggin, 69 Cal. 255, 813-334, 10 PaC. 674, 705-719 (1886).
1 IMGAoTION COMuDPAN n UTAH, Bulletin 822, Agricultural Experiment
Station, Utah State Agricultural College, p. 10 (March 1946).
"State v. ROU 71i tah 91, 100, 262 Pae. 987, 98' (1927); UT A ConD
Aww. 1943, 1 100-1-1 et ~ e
IIGMATIoN COMPANmIES t UTAH, Bulletin 822, Agricultral Experiment
Station, Utah State Agricultural College, p. 8 (March 1946).
Atolison v. Peterson, 20 wan.. 507, 510 (U. S. 1874); Long, A TMaTxn
oN THE-LAw or IaOATION, 1 76, p. 138 (2d ed. i91l).
"'I Wiel, WATEI Br icTS i THa WEUI m SrATES, 154-155, pp. 177-180
(8d ed. 1911).
Thus, some would find the roots of the modern appropriation
doctrine in the civil law, some in the practices of irrigation,
and some in the customs of the miners as later copied by irriga-
tors." All these factors, as well as Spanish and Mexican
colonization practices, undoubtedly made contributions to the
doctrine. In any event, nature suggests that the dominant fac-
tor was the aridity generally prevailing in portions of the West,
together with quantitatively disproportionate, highly irregular,
and maldistributed stream flows. Thus we find indications in
judicial opinions that the riparian doctrine is not suited to the
conditions and the needs of Western States."1
Whatever the origin of the appropriation doctrine, however,
its impact was later reflected in federal legislation. Contests
arose between appropriators under this possessory system and
patentees under the 1862 Homestead Act and the 1864 Pacific
Railway Act, the latter claiming to be the successors of the
United States with the right to oust prior appropriators of
waters on the lands patented.160 Soon thereafter, Congress
enacted the Act of 1866.11 This statute made good appropria-
tions in being as against a later patent to riparian parcels of the
public domain."6 An 1870 supplement subjected patents, pre-
emptions, and homesteads to vested 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 1866
"See, e. g., STATE WATER LAW IN THE DEVELOPMENT or THE WEST, Report
to the Water Resources Committee by its Subcommittee on State Water Law,
National Resources Planning Board, p. 6 (1943); Long, A TREATISE ON THE
LAW OF IaIGATION, t 70, p. 126 (2d ed. 1916) ; I Wiel, WArTE RIGHTS I THE
WESTERN STATES, 66, p. 66 (3d ed. 1911).
See, e. g., United States V. Rio Grande Irrigation Co., 174 U. S. 690, 704
(1899); Olough v, Wing, 2 Arls. 371, 381, 17 Pac. 453, 456 (1888).
Act of May 20, 182,12 Stat. 392, see 43 U. S .161 et seq.; Act of July
2, 1864, 3, 13 Stat. 365, 367; I Wiel, WATEB RIGHTS IN THE WESTERN STATES,
S 87, p. 94 (3d ed. 1911).
codified as part of 43 U. S. C. 661. See also supra, pp. 35-37.
United States v. Gerlach Live Stock Co., 339 U. S. 725, 748 (1950).
SR. S. 2340, from Act of July 9, 1870, 17, 16 Stat. 217, 218, now codified
as part of 48 U. S. C. 661. See also supra, p. 36.
Correspondingly significant is the Desert Land Act of 1877.1V
Under it, provision is made for reclamation of arid lands in the
States of California, Oregon, and Nevada, Colorado being later
added, and the then Territories of Washington, Idaho, Mon-
tana, Utah, Wyoming, Arizona, New Mexico, and Dakota.1"
The Act authorized the sale of 640 acres of land at $1.25 per
acre to any person who would irrigate it within three years.16
In addition, a significant proviso is included which makes the
right to the use of water depend upon "bona fide prior appro-
priation" not to exceed the amount "actually appropriated, and
necessarily used for the purpose of irrigation and reclama-
tion." The Act also requires that: 16
all surplus water over and above such actual appropria-
tion and use, together with the water of all lakes, rivers
and other sources of water supply upon the public lands
and not navigable, shall remain and be held free for the
appropriation and use of the public for irrigation, min-
ing and manufacturing purposes subject to existing
However, a 640-acre tract was too large for individual irrigation,
and speculation was resulting from operations under this and
other acts, which together had allowed one individual to acquire
up to 1120 acres.19 And in 1890 Congress limited all entries to
a 320-acre maximum for a single claimant.70
In another 1890 statute, Congress reserved to the United
States a right-of-way for ditches and canals constructed by
federal authority with respect to lands west of the one-hun-
dredth meridian thereafter patented under any of the land laws
of the United States.17 It has been said that this statutory
SAct of March 3, 1877, 1 1, 19 Stat. 377, as amended, 48 U. S. C. 821.
u 3, 19 Stat. 377, 8 as added by Act of March 3, 1891, 2, 26 Stat. 1096,
as amended, 43 U. S.C. 323.
1, 19 Stat. 377, as amended, 43 U. S. C. 321.
"'21 CoNe. RPc. 7930, 7766, 9139; Sen. Rep. No. 1466, 51st Cong., 1st sess.,
pp. 68-69 (1890); H. Rep. No. 2407, 51st Cong., 1st sess., p. 66 (1890).
1" Act of August 30, 1890, S 1, 26 Stat. 371, 391, as amended, 43 U. S. 0. 212.
~ 1, 26 Stat. 391, 43 U. S. C. 945.
reservation paved the way for future national reclamation
legislation.1" In the following year, Congress granted rights-
of-Way through public lands to canal and ditch companies for
reservoirs and canals,". This latter statute also authorized
entrymen on public lands to associate together in the construc-
tion of reclamation works."'
A notable increase of federal interest in irrigation appeared
inthe 1894 Carey Act.'" It authorized donations to each pub-
lic-land state of a maximum of one million acres of desert land
in order to aid them:"*
in the reclamation of the desert lands therein, and the
settlement, cultivation and sale thereof in small tracts
to actual settlers *
The state is required to agree to cause the lands to be irrigated,
reclaimed, occupied, and cultivated by actual settlers.' Tracts
sold by the state must be limited to 160 acres for one person,
and the lands may be used only for reclamation, cultivation,
and settlement." An 1896 amendment empowers the states
to provide for liens against reclaimed lands for actual cost and
necessary expense of reclamation."* This provision eased the
financial or constitutional difficulties encountered by the
states in constructing large canals and irrigation works."' It
was pointed out, however, that this amendment would result
in the acquisition by wealthy individuals and corporations of
large bodies of land, to the exclusion of the settler."'
Operations under the Carey Act were fraught with a number
of difficulties. Surveys of available water supplies were inade-
quate, and data respecting the type, character, and produc-
m2 Kinney, IRRIGATION ANp WATER RIGHTS, 936, p. 1653 (2d ed. 1912).
Act of March 3, 1891, S 18, 26 Stat. 1095, 1101, as amended, 48 U. S. C.
"m 2, 26 Stat. 1096, 43 U S. C. 327.
"Act of August 18, 1894, 1 4, 28 Stat. 372, 422, 43 U. S. C. 641 et seq.
t 4,28 Stat. 422, as amended, 43 U. S. C. 641.
'"Act of June 11, 1896, 1, 29 Stat. 418, 434, 48 U. S. C. 642.
"*8 Kinney, IreGATION AND WATB RIGHTs, f 1823, p. 2397 (2d ed., 1912),
tivity of soil were insufficient to guide the states.' From the
start, settlers on many projects were in financial difficulties in
connection with heavy mortgages executed for financing con-
struction of irrigation works.1' A number of projects never-
theless continued for some time to operate under the Carey
With respect to the foregoing federal statutes, it has been
said that they failed to further in any substantial measure the
Government's long-established policy of encouraging the set-
tlement of arid public lands."
To this point, as we have seen, federal interest in irrigation
was limited to providing for certain water uses and to permit-
ting use of public lands on specified conditions. The statutes
involved nevertheless foreshadowed passage of the 1902 Rec-
lamation Act."e And with its passage, Congress established
irrigation in the West as a national policy."' But while Rec-
lamation projects are limited to the West, benefits are not lim-
ited to public lands."
Early cases sustained the 1902 Act as a proper exercise of
the Government's proprietary power.1" Moreover, in speak-
m RBEAMATIoN HANDB0OK, Department of the Interior, Bureau of Bee-
lamation, p. 22 (1942).
By 1980, only 17 irrigation enterprises were so operated, covering
174,246 acres. Ibid.
See United States v. Hanson, 167 Fed. 881, 888 (C. A. 9, 1909).
SAct of June 17, 1902, 82 Stat. 888, 48 U. S. C. 891 et seq. Speaking
of the earlier legislation, a Federal District Court in 1912 said, "By a series
of acts and resolutions passed by Congress beginning as early as
1888 the Government unmistakably declared a purpose to reclaim
its arid lands by conducting water to and across them, and provision was
shortly made to enable it to carry out that purpose." United States v. Vin
Horn, 197 Fed. 611, 615 (D. 0. Colo., 1912).
SBurley v. United States, 179 Fed. 1 (C. A. 9, 1910). "The policy of
reclaiming the arid region of the West for a benefcial use open to all the
people of the United States is as much a national policy as the preservation
of rivers and harbors for the benefit of navigation." 179 Fed. at 11.
m See supra, p. 45.
SSee aupra, pp. 44-45.