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IRRIGATION DEVELOPMENT. 
 
 HISTORY, CUSTOMS, LAWS, AXP AP>nXISTRATIVE SYSTEJIS 
 
 RELATING TO IRRIGATION, WATER-COURSES, AMD 
 
 WATERS IN FRANCE, ITALY, AND SP-UN. 
 
 THE INTRODUCTORY PART 
 
 OF THE 
 
 Report of the State Exgixeer of California, 
 IRRIGATION AND THE IRRIGATION QUESTION. 
 
 WM. HAM. HALL, C.E. 
 
 State Engineer. 
 
 SACRAMENTO : 
 
 STATE OFFICE, : : JAilES J. AYERS, SUPT. STATE PEIXTIXG. 
 
 18S6. 
 
Sacramento, Cal., December 31, 1885. 
 To His Excellency 
 
 George Stoneman, 
 
 Governor of California: 
 Governor; 
 
 Herewith is transmitted the First Part of my Report on Irriga- 
 tion and the Irrigation Question. Accompanying it is a preface 
 to the entire work, to which, with the introduction to the part now 
 presented, I invite your attention for such explanations as it has 
 seemed fitting to offer. 
 
 This work was commenced during the administration of the 
 Honorable Wm. Irwin, continued through that of the Honorable 
 George C. Perkins, and has been in progress thus far within your 
 own term. 
 
 To the courteous, intelligent, and earnest cooperation of these 
 former governors and yourself, under whose direction it has been 
 prosecuted, allow me to attribute much of the success had in carry- 
 ing forward and in bringing its results before the public. 
 
 With a hearty acknowledgment of my sense of personal, as well 
 as official obligation to you and your predecessors named, 
 I am, sir, respectfully. 
 
 Your obedient servant, 
 
 Wm. Ham. Hall, 
 
 State Engineer. 
 
PREFACE. 
 
 California has been the scene of an independent development 
 of irrigation practice, laws, and customs. In some respects the 
 outcome has not been satisfactory to her citizens. The irrigation 
 interest has been shadowed by a cloud of litigation. The courts 
 have been crowded, and the legislature has been embarrassed by a 
 multitude of perplexing questions and conflicting measures. We 
 have seen much progress; but how much more might there have 
 been had the waters of this state been utilized under a wise sys- 
 tem from the beginning of her growth. Without doubt thousands 
 of most desirable settlers have been kept away by current reports 
 of water-right and irrigation litigations. Without doubt many 
 millions of capital have been diverted to other channels, which 
 under settled conditions would have been devoted to the develop- 
 ment of local agricultural interests. 
 
 A notable group of circumstances has brought about this condi- 
 tion of affairs. Here have met and sought to be applied in the 
 promotion of irrigation, certain traditions and customs of the civil 
 law countries of southern Europe, as modified by Mexican prac- 
 tice; the common law water-course rulings of English courts; and 
 a mining water-right jurisprudence, with customs locally evolved 
 under new conditions. Here also have met, to develop this indus- 
 try and make laws for its governance, people from all parts of the 
 world and in all grades of circumstances, hardly any of whom had 
 the slightest idea of water-right systems or irrigation customs, leg- 
 islation, administration, or practice. 
 
 We have had a development of irrigation practice under most 
 peculiar financial and social conditions. It has had its growth 
 .here, not only urged by the necessities of men to take from the 
 ground a support, and the desires of capital for profitable invest- 
 ment, which have been chief incentives to irrigation enterprise 
 elsewhere, but speculation in lands thought otherwise to be almost 
 valueless* and with irrigation believed to be worth, and actually 
 commanding for purposes of investment, an hundred dollars or 
 more per acre, has urged the construction of canal works. 
 
6 THE IRRIGATION QUESTION. 
 
 The delightful and healthful climate of parts of pur State where 
 irrigation has been apparently most profitable, the charm of a life 
 amidst a semi-tropical foliage which irrigation there supports in 
 luxuriance, and the popular demand for a sanitarium and a region 
 of peaceful homes where light labor would season leisure and add 
 to the enjoyments of life, while at the same time producing a sub- 
 stantial return, has added another strong incentive to the artificial 
 spreading and use of waters. Probably no other country ever 
 experienced the influence of such strong inducements to the diver- 
 sion of waters, until success in California was followed by like 
 action in some of her sister states and territories. 
 
 But before the desirability of taking water from the streams to 
 put it on dry lands became appreciated, there had grown up great 
 interests whose prosperity and life, locally at least, depended upon 
 the maintenance of flow in the natural channels. 
 
 Early attempts at irrigation were very crude and wasteful of 
 water, and lands newly irrigated engulfed the precious liquid, as 
 though made of sponge. When, a few years after, its benefits 
 became generally apparent, the supply seemed ridiculously small 
 as compared to the probable demand. 
 
 There was rivalry and conflict in taking out waters; there was 
 contention between those who took them out and distributed them 
 and those who wanted to use them; and there was an ever present 
 contest between both these classes and those who wanted the water 
 to remain in the streams for the maintenance or betterment of their 
 personal interests. And these contestations were graded in char- 
 acter according to circumstances. 
 
 Varied and many as were the questions thus brought about, 
 they were few and simple as compared to the propositions which 
 were made for their solution. It were vain to enumerate near all 
 the plans put forward in one form or another. In general terms 
 they were: (1) For the United States government to purchase all 
 water-rights and canals in the state, construct great works of stor- 
 age, diversion, and distribution, sell the water to consumers, and 
 thus render possible the irrigation of all the dry plains: interfer- 
 ing with no one's rights without due compensation. It was urged 
 by the advocates of this plan, in its various phases (and they were 
 not small in number as late as eight to ten years ago, and, further- 
 more, there are still many who would like to see it attempted). 
 
PROPOSITIONS OF THE PAST. 7 
 
 that the government could well afford the outlay of the millions it 
 ^^'Ould cost; it would he reimbursed an hundredfold in one way 
 or another; that there was ample precedent in the action of the 
 English government in India, for instance; and, furthermore, that 
 it would be vain to attempt widespread irrigation in the state, un- 
 der any other auspices. It is hardly necessary to say that this 
 general idea was captivating to many persons. Comparatively 
 few people would have opposed it fifteen years ago, and thousands 
 would have hailed its application with personal satisfaction. 
 
 (2) Xext came elaborations of substantially the same idea, 
 with the state substituted for the general government in the ini- 
 tiative. This outline plan has been more openly and freely dis- 
 cussed than the preceding, because apparently more likely of 
 accomplishment. The same reasons were urged in its favor: The 
 state would be the gainer in every way, and not the least, by the 
 speedy and final settlement of contentions which were occupying 
 and would otherwise continue to occupy its courts and retard the 
 development of its resources. At this day there are very many 
 advocates of some such plan in California; and a session of legis- 
 lature does not pass without its being brought forward, in some 
 form, with more or less confidence, as a possible and desirable 
 solution of all the difficulty. Its advocates say their time is 
 coming — such action must be taken in the end. 
 
 (3) Then came the many and various plans for state action to 
 give the irrigation interest power to take and use waters mthout 
 let or hindrance from the riparian proprietors who demand that 
 the streams be preserved, or that they have their share of the 
 water if it is to be taken out. It is, perhaps, not necessary to say 
 that these proposed systems have recently been most popular in the 
 counties where irrigation is now an accomplished fact, or in rapid 
 progress. The general idea of all these plans is to put the control 
 of the natural streams ^-irtually in the hands of those who want to 
 use theu- waters in irrigation, and to give them power to take and 
 pay, or not, as the case may be, for injury to others who would 
 be deprived of them. 
 
 (4) Xext in order, there is the struggle on the part of the irri- 
 gation interest to have it declared, by legislative action, that the 
 riparian proprietors have no rights to water or to the streams, that 
 they never had any such rights in this state, or that they shall 
 have none in the future. And such action, it is thought by many 
 persons, would solve the disturbing problems. 
 
8 THE IRRIGATION QUESTION. 
 
 (5) Last, and perhaps newest in the popular view, comes the 
 thought, with its many variations, that the state might and should 
 do much to settle these conflicts, without adopting any of the 
 alleged extreme policies marked out for her under the three pre- 
 ceding general ideas, and that, under any circumstances or plan, 
 it is and will continue to be imperatively necessary for her to adopt 
 some definite policy with respect to her water-courses, and not 
 simply remain a spectator of the various conflicts going on be- 
 tween private parties about them, bearing the expense and suffer- 
 ing the injury which their occupation of the courts and damaging 
 notoriety inflict. 
 
 But what is this something to be done ? Here again are many 
 minds and many plans. Furthermore, it must be remembered 
 that not all nor by any means a greater part of the citizens of Cal- 
 ifornia, politically speaking, admit the necessity for irrigation in 
 their districts: as yet, the so called irrigation counties, even with 
 those next in character to them, are in the minority in the matters 
 of representation and taxable wealth. It is often diSicult to con- 
 vince those who see no benefit to themselves in state action of any 
 kind, and perhaps see a possible inconvenience to them, in the 
 way of interference with some of their customs, that they should 
 suffer taxation permanently to carry out any measure of state pol- 
 icy for direct benefit only in other quarters. And thus, while the 
 advocates of this last idea are by no means agreed as to.what form 
 it should take, there are likely to be those who would oppose any 
 system that involved continuous state expense. 
 
 Such questions as these have regularly vexed the representa- 
 tives of the people at every session of legislature held since about 
 1854, and each struggle has been more intense than the one pre- 
 ceding. At first the immediate interest was confined to a very 
 few counties, having but a handful of the representation, and, as 
 could then be done, the attempt was made to cure the trouble by 
 local or special laws appljdng to certain counties only. These 
 proved for the most part unsatisfactory. The leading great ques- 
 tion, as between riparian claims and appropriation claims, re- 
 mained untouched, and yearly grew in importance and popular 
 notice. The state constitution does not now admit of local or 
 special legislation, so that this old-time expedient is debarred. 
 
 Moreover, nothing definite was known of irrigation itself, outside 
 of the very limited areas or neighborhoods of its practice, and al- 
 
INVESTIGATION ORDERED. 9 
 
 most nothing at all of the irrigation resources of the state. As the 
 prohahle success of many items of state policy turned upon such 
 matters of fact, the demand for the information was imperative in 
 the halls of legislation; and the fact was recognized, also, that it 
 would be of great value to the irrigators, land owners, and people 
 generalh-. 
 
 Finally, there had grown up other classes of conflicts over the 
 use and management of water-courses and public waters, even 
 more intense than those immediately connected with irrigation. 
 These were the hydraulic mining debris complications, and the 
 arterial drainage or reclamation questions; the intelligent discus- 
 sion of which also necessitated a knowledge of facts which had 
 never been collated. 
 
 Matters came to this stage when, in 1878, a law was passed cre- 
 ating the office of State Engineer. It was a compromise measure 
 adopted in lieu of any one of half a dozen or eight others which 
 severally were based on the general ideas heretofore mentioned, or 
 other plans not necessary to speak of It provided for an inquiry 
 into the whole subject-matter of the problems before the Legisla- 
 ture, as follows: 
 
 Sec. 3. The duty of the State Engineer shall be, under the direction of the 
 Oovernor, to investigate the problems of irrigation of the plains, the condition 
 and capacity of the great drainage lines of the State, and the improvement of 
 the navigation of rivers. 
 
 Sec. 4. In order to carry out the purpose specified in section three, it shall 
 be required of the State Engineer to ascertain as nearly as possible the follow- 
 ing named facts, and to express opinions as is hereby required: 
 
 i^iist— To ascertain the present water-carrying capacity of the Sacramento 
 and San Joaquin Rivers, in the different sections which are liable to overflow. 
 
 Second — Whether this carrying capacity can be increased, and, if so, by what 
 means, and at what cost. 
 
 Third — The maximum quantity of water which may reasonably be expected 
 to present itself, on any day, at the head of any of the sections of the rivers as 
 tiefore mentioned. 
 
 Fourth — Whether it is possible to make the rivers carry the maximum quan- 
 tity thus ascertained, and if not, to suggest such other measures as may be judi- 
 cious for the relief of the rivers and the protection of adjoining lands, and to 
 give detailed estimates of the cost of the suggested works. 
 
 Fifth — To ascertain whether there has been any change in the height of beds 
 of the navigable rivers of the State, and if so, to determine as nearly as may 
 be the extent of this change, and the cause or causes to which it is due, and 
 whether change is now taking place in the height of the beds of the rivers, and 
 if so, what legislation, if any, will be effectual in preventing the rise of the beds, 
 ■or in diminishing the rate of rise. 
 
 Sixth — To ascertain the effect of anj' change in the bottom of the rivers, on 
 their carrying capacity, and in the height of floods in the rivers. 
 
10 THE IRRIGATION QUESTION. 
 
 Seventh — To ascertain the position and acreage of all lands in the valleys of 
 the State, which are now or may be in the future in need of irrigation; to 
 divide these lands into their natural districts; to ascertain the water solirce or 
 sources from which each district maybe most conveniently irrigated; to ascer- 
 tain the quantity of water which these sources can supply in diflferent years 
 for irrigation ; the length of time in each year during which these sources will 
 supply sufficient water for irrigation; make studies of the best means for irri- 
 gating each district, and give his opinions and advice to such parties as may 
 be engaged in irrigating a district, or who may be about to undertake the irri- 
 gation of a district. ■ • • • 
 
 Eighth — The State Engineer shall also inquire into the relation which hy- 
 draulic mining bears to the navigation of the rivers, and to their carrying 
 capacity; to inquire into the question of the flow of debris from the mines into 
 the water-courses of the State; to ascertain the amount and value of agricult- 
 ural lands and improvements which have been covered up or injured by the 
 overflow or deposit of debris, coming from the hydraulic and other mines in 
 the Sacramento Valley, and to devise a plan whereby the injuries caused 
 thereby can be averted without interfering with the working of such mines. 
 
 Ninth — In addition to making these inquiries, the State Engineer shall make 
 such other investigations as may appear to him to be necessary, and approved 
 by the Governor, for the proper and complete solution of the problems stated 
 in section three. 
 
 It must be apparent from the foregoing, to any one at all con- 
 versant with such matters, realizing that California has an area 
 as large as that of all the New England states and all the middle 
 states combined, with Maryland and a third of Virginia in addi- 
 tion, and that this investigation must necessarily extend over more 
 than half of her territory, that a very large field for inquiry was 
 opened up for the state engineer, in more ways than one. 
 
 The law made provision of money for the prosecution of the work 
 for the first two years, and other appropriations have carried it to 
 this time, when, in accordance with a recommendation by the state 
 engineer, the results to date are being published under legislative 
 instructions. 
 
 During the first two years the work was largely devoted to the 
 fields of the " debris " and " drainage " inquiries, so called. At the 
 end of that time, by another act of legislature, there were imposed 
 on the state engineer the duties of planijing and advising about 
 large works of river improvement, and storage of debris. For 
 somewhat more than a year these matters imperatively demanded 
 close attention, when the last named law was declared by the 
 supreme court to be unconstitutional, and thus terminated work 
 under it. Hence, not until 1881 had more than half gone was 
 the attention of the department centered on the irrigation exam- 
 inations. 
 
A STATE POLICY WANTED. 11 
 
 The difficulties and embarrassments under which the work of 
 the department has been carried forward have been very great. 
 There were the parties to three great contentions, in the midst of 
 which was cast a technical department to make inquiry into the 
 subjects of their bitterness. Peacemakers, arbitrators, and search- 
 ers after truth where extreme prevails, as a rule are trampled 
 under before they have the opportunity to effect any part of their 
 mission. The state engineering department has not been thus 
 unceremonioush' treated. But it has been very much embarrassed 
 in the prosecution of its work by the uncertainty which there has 
 ever been as to its continuance from year to year. It rested with 
 the legislature at each session to provide means for the work. 
 Each time there has been uncertainty. So that it has been im- 
 possible to organize the work and carry it forward to advantage. 
 
 Without particularizing at this point, it is within bounds to say 
 that, could the department work have been planned at first with 
 the certainty of six years existence, much better results would 
 have been acquired by the use of very much less money. As it is, 
 the work has been carried on spasmodically between legislative 
 sessions, and each time stopped and disorganized, preparatory to 
 a probable closing out. The demoralizing effects of such disturb- 
 ance as it has had five times in seven years, in consequence of the 
 contentions which have gone on over hydraulic mining debris, 
 water-right, drainage, irrigation, and riparian right matters, can 
 be appreciated only by those who have been through such an expe- 
 rience. It is not proposed to attempt a picturing of it "here, how- 
 ever much the narrative would account for many shortcomings 
 which may be apparent in the results. 
 
 Besides the unhappy influences incidental to the great legisla- 
 tive contentions, there has been much difference of opinion as to 
 the sphere and proper purpose of the department. These matters 
 will be explained in the introduction to that part (II) of the re- 
 port which accounts for the field work of investigation. It is 
 proper here to remark, however, that the department has always 
 been sustained by majorities so great, in legislative action, as to 
 amply justify the course which has been taken in its manage- 
 ment, and that the treatment it has received at the hands of the 
 press of the state, and citizens, generally, has been, to say the least, 
 gratifying. 
 
 It is possible that the legislature did not appreciate the magni- 
 
12 THE IRRIGATION QUESTION. 
 
 tude of the work which it outlined by the instructions above 
 quoted. It is probable that the people of the state do not realize 
 the importance of this subject. The field work is in the nature of 
 a physical survey of the state, combined with certain industrial, 
 social, and other inquiries of broad scope, and necessary to be 
 prosecuted over a wide field. It is by no means complete, but 
 -enough has been done to warrant publication, to be submitted for 
 legislative and popular judgment of its utility, and to serve as a 
 basis for legislative action towards the interests involved. 
 
 The present report relates only to the irrigation part of the inves- 
 tigations. These have been distinctly in two lines, as "necessary 
 for the proper and complete solution" of the questions with which 
 the state has to deal. The investigation was not ordered for the 
 purpose of furnishing plans for the irrigation of lands, except as 
 this might be done incidentally to its main object. The intention 
 was the acquirement of data upon which the state might formu- 
 late a policy and frame legislation respecting irrigation matters. 
 This was the accepted purpose of the measure when proposed and 
 adopted in legislature. It has been the main purpose for which 
 the department has since been supported. 
 
 The report which is now presented should be primarily viewed 
 in the light of its main purpose. 
 
 It is made in three parts. The first, introductory to a study of 
 the problems of irrigation; and being itself a series of studies of 
 irrigation development in the three countries of the world from 
 whose experience we may hope to learn something for our imme- 
 diate purpose, it is intended to serve as a book of reference for, 
 and thus shorten the discussions that are to follow. 
 
 The second part presents the facts with respect to the field for 
 irrigation: the past development, present condition, and possible 
 future extension of irrigation in California. 
 
 The third is a discussion of the irrigation questions in Califor- 
 nia, upon the basis of the facts presented in the second part, the 
 experiences in other countries reviewed in the first part, and in the 
 light of other data which will be appended to the third part itself. 
 
 Under this general idea, the report is framed according to the 
 following outline: 
 
THE INVESTIGATION MADE. 13 
 
 Outline oi' the 
 Keport of the State Enoineee of Califoknia. 
 
 IRRIGATION. 
 
 Paet I. — Irrigation Development. 
 History, Customs, Laws, and Administrative Systems Relating to Waters, 
 Water-Courses, and Irrigation in France, Italy, and Spain. 
 
 Paet II. — Irrigation in California. 
 Water-sheds, Precipitation, and Water Supply— Lands Requiring Irriga- 
 tion — Irrigation Districts — Water-rights — Riparian Interests — Works, Systems, 
 Practice, and Statistics of Irrigation, in California. 
 
 Paet III. — The Irrigation Question. 
 Development of this Question in California — The Mexican Civil Law — The 
 English Common Law — The Californian Customs — The Conflicts— The Ques- 
 tions — Review of Irrigation and Water-Right Laws — A System for California. 
 
 The whole work is primarily intended as one of reference for 
 the irrigators, land owners, members of legislatm-e, and others 
 who take a special interest in this subject as presented for state 
 action in California, and is framed to meet a demand whose char- 
 acter has repeatedly been made apparent to the writer. 
 
 The legislature has ordered it printed and the copies offered for 
 sale. If it meets with special favor, as a book to be read because 
 of any motive of passing interest merely, at the hands of the gen- 
 eral public, it will be successful in a line which has been subor- 
 dinated to its leading purpose. Any demand which there may be 
 for a report of that character, it is hoped will be met by a resume 
 of all the reports of this departnient. 
 
 A report which would undertake to show the irrigable resources 
 of the state, as to lands and water supply, in sufficient detail to 
 be of value other than simply to satisfy a passing interest and 
 serve as a basis for general discussion, must necessarily itself be 
 a large and by no means readable book. 
 
 A report which would undertake to present plans for availing of 
 those resources, sufficiently matured to usefully show how the 
 lands may be irrigated, would make up a small library. While 
 the state has no system in its water-law, and no policy towards 
 irrigation and water-courses but that of letting things drift, it 
 were idle only to formulate special plans or general systems for 
 irrigation works, or for the state to speculate as to how the lands 
 
14 THE IRRIGATION QUESTION. 
 
 can best be irrigated; for each land owner or canal projector 
 would, after all, do just as his interest dictated, and the proba- 
 bility is, as experience conclusively demonstrates, that the doing 
 would not be in accordance with any well matured general system 
 of works, or far seeing policy. 
 
 Indeed, it is a question, which the writer proposes to discuss in 
 the proper part of this report, as to whether the state should ever 
 undertake to mark out definite plans for irrigation works or sys- 
 tems. As to whether any policy which the state might adopt would 
 admit of a useful purpose being served merely by such official 
 formulations. Whether there is not about as much, as the people 
 of the state will consent to undertake, to be done in establishing a 
 system of law and administration, under which private and com- 
 munity enterprise can operate to advantage, and in collecting and 
 publishing the data of physical phenomena, and the statistics of 
 the use of water in irrigation, necessary on which to prevent or 
 settle a large part of the conflicts of kinds continually arising in 
 all irrigation countries. 
 
 The terms of the instructions in the law — about making plans 
 for the best methods of watering the natural irrigation districts of 
 the state — ^will be complied with, in writing this report. And, it 
 is hoped, in a manner to render the compliance, when taken in 
 connection with the other parts of the work, a valuable result. 
 But such publication would never make an adequate return to the 
 people of the state for the cost of the work, if the good to come 
 were only through the use of the propositions in irrigation enter- 
 prises, for the reasons already given. 
 
 This department is in possession of much definite information 
 which should be made available to every one, under a proper sys- 
 tem. Moreover, a good treatise on the construction, maintenance, 
 and operation of irrigation works in general, would be of inestima- 
 ble value to very many people of the state, and by rendering enter- 
 prises more successful would amply return its cost to the state. 
 But this report will not go into that field. 
 
 The introduction which will precede each part will more fully 
 explain its plan, or immediate object, or furnish a key to its more 
 important features. Other reports of the department now being 
 printed, or in course of completion, and the maps prepared or in 
 course of preparation for publication, will be spoken of in a mem- 
 orandum at the close of the first volume of the main work.^ 
 
 See, pp. 607-9, hereof. 
 
I R RIGA TION DE VEL OP ME NT. 1 5 
 
 IRRIGATIOX REPORT OF THE STATE ENGINEER OF CALIFORNIA— PART /. 
 
 INTRODUCTION. 
 
 The present volume contains an outline of the history and a re- 
 view of the water and irrigation customs, laws, and regulations of 
 France, Italy, and Spain. As the common foundation of these, 
 and a part of their history, the first chapter is devoted to the 
 water laws of the Romans. 
 
 These are the countries where irrigation has developed under 
 conditions such that we may expect to derive some useful lessons 
 in public poUcy and private enterprise from its stud}'. 
 
 The conditions which point to the utility of and necessity for 
 this investigation are spoken of in the preface preceding. It is 
 the object of this volume to present such accounts of these devel- 
 opments, with references to original authorities, as will enable a 
 final study of the kind to be readily made. 
 
 The matter is not one to be summarily treated. It is one for 
 close study, weighing many smTounding and antecedent circum- 
 stances. A mere abstract or a translation of the existing water 
 and irrigation laws of the countries named would be of compara- 
 tively small value to our legislature and citizens: would, in fact, 
 only lead to dispute in the halls of legislation, and find few read- 
 ers amongst the people, as has already been, in part, showTi by 
 experience. 
 
 To be of utility in California, such investigation must go below 
 the surface of present status. The subject must be studied in the 
 light of history and surrounding circumstances. 
 
 Because France, Italy, and Spain may have water and irriga- 
 tion laws, etc., apparently perfected for them by centuries of prac- 
 tice and amendment, we must not conclude that it were desirable, 
 even, to introduce any one of their systems here. 
 
16 IRRIGATION DEVELOPMENT. 
 
 Because we find in any one of such systems certain features 
 which appear to us good, it must not be concluded that adoption 
 in one of the named countries proves it the best for its locality, 
 even. We should know how it came to be adopted. 
 
 We may learn many more negative than positive. points from 
 such a study. It is economical to learn what not to do, before 
 doing it. California would be better off in this matter if some such 
 lessons could have been imparted long ago. 
 
 On the other hand, we may learn, even from failures abroad, 
 of measures which would prove successful here. And if we look 
 closely to the matter we may be able to show good promise of their 
 adaptability. 
 
 The writer has not overlooked the fact that the political, social, 
 and legal forms and status of government, individuals, and prop- 
 erty in California are not those of France, Italy, or Spain. An 
 appreciation of this has been the impelling motive to try to look 
 below the surface. and back of the present times, in making inves- 
 tigation; and always with an useful object in view. In this spirit 
 of thoroughness the data for the present volume has been gleaned, 
 by private reading, and correspondence, and official search at times 
 during the past nine years. 
 
 The book could have been much better written. The informa- 
 tion could have been put in smaller compass without omission of 
 anything material even to the immediate purposes of its compila- 
 tion. These facts were known before it went to press. 
 
 By those who realize the necessity of thoroughness in the study 
 for which it opens the door, and know of the circumstances under 
 which it ought to be used to serve its purpose in California, the 
 apparent fault of too great fullness of matter not immediately bear- 
 ing on its subject will be condoned. 
 
 Those who will reflect upon the great mass of material from 
 which its data has been drawn, held as it is almost entirely in 
 foreign languages, and who know from experience the labor of 
 selection, and how much must have been rejected to sift even as 
 
INTRODUCTION. 17 
 
 closely as has been done, will overlook the presence of apparently 
 redundant matter in this volume. 
 
 Those who are familiar with the extreme verbosity, diffuseness, 
 and redundancy of style in which European state and law papers, 
 and treatises are drawn, and reflect that these in thousands of 
 pages were the models neeessarih- ever present with the writer 
 hereof, will not be swift to criticise faults in composition and treat- 
 ment of the subject which appear in this book. It takes time and 
 labor to condense from the results of such a research as has been 
 made, and the process has to be repeated to get the best outcome. 
 Had the time for further revision have been at command this work 
 would be more concise and probably more readable. 
 
 The primai-y purpose has not been to wiite a book for popular 
 reading. Such a volume will fittingly follow the publication of 
 the entire report. The formal systemization and subdivision of 
 matter, and careful preservation of references to the more impor 
 tant authorities, shows at once the intention of making this a vol- 
 ume for reference, as heretofore declared. 
 
 It is an epitome of a special literature and line of data which is, 
 for the most part, inaccessible to all but a very few individuals of 
 those for whom this work has been undertaken and is particularly 
 intended. If there is an apparent attempt in the composition to 
 render readable an avowedly cumbrous arrangement of the sub- 
 ject, it may be attributed to a pardonable desire to make the work 
 more acceptable to the irrigators, land owners, and citizens of Cal- 
 ifornia, who, having it in their libraries, as a book of reference, 
 will occasionally read a few of its chapters. 
 
 The detail of treatment has been a matter of thought. Opening 
 the work at almost any page, the commencement of a subdivision 
 of the subject is before the reader. It has been the endeavor to 
 make each such little paper sufficiently complete to have its bear- 
 ing fully understood without the necessity for familiarity with 
 other pages. 
 
 2^ 
 
18 IRRIGA TION BE VELOPMENT. 
 
 This idea is in keeping with the general purpose of the work as 
 one of reference, and is intended to fit it for the use of many per- 
 sons who are not book readers, and who probably, from lack of 
 time and force of habit, would not follow any report, work, or 
 treatise through consecutively. The unavoidable result is repe- 
 tition and consequent swelling of bulk; but the better purpose 
 which the book will serve within its sphere should be ample 
 excuse for this fault. 
 
 Let it be remembered that this compilation is a pioneer in its 
 field. There was no model or guide for it. There is no other work 
 in any language which essays the picturing of the development of 
 the water and irrigation laws, customs, and regulations of the three 
 countries named, or of any two of them, in a manner intended to 
 serve as the basis of comparison, or as the foundation of study of 
 their principles, from the standpoints of irrigation enterprise and 
 state policy. 
 
 There are very many single and partial treatises touching on 
 the subjects for the several countries, but these are almost wholly 
 law books, or technical works on irrigation, or official publications, 
 where is occasionally found something pertinent. In fact, the Hter- 
 ature of the subject is immense, but the arrangement is in no in- 
 stance to our purpose, so far as has been learned by a very diligent 
 inquiry through commercial, of&cial, and professional channels 
 during the past eight years, and by the collection of many publi- 
 cations. 
 
 There has been no guide, even, of recent date, to a line of 
 authorities on the subjects of this volume. The data of this work 
 have been obtained to dates less than a year ago, in several in- 
 stances, on the advice and through the courtesy of official sources. 
 So that it contains much that is not elsewhere found in print 
 except in governmental or European legal publications. 
 
 Above all, it must be remembered that, as it stands, this vol- 
 ume is not a complete report. Its points should be held as lights 
 to the study of existing and possible irrigation in California, which 
 
INTRODUCTION. 19 
 
 will be presented in the second volume. Its data will form a 
 large part of the basis for discussion of our irrigation question, 
 which will be essayed in the third volume. 
 
 Had this work to go before the public only through the chan- 
 nels ordinary for state reports, an explanation, such as the fore- 
 going, would not be necessary or in good taste, but the fact that it 
 is ordered to be placed on the market for sale has rendered some 
 such introduction imperative to prevent thoughtless criticism by 
 those who may not understand the circumstances of its produc- 
 tion or the demand which has brought it into being. 
 
 For advice and other favors in immediate connection with this 
 study and present volume, special acknowledgment is due to the 
 late General B. S. Alexander, consulting engineer to this depart- 
 ment in 1878, Honorable George P. Marsh, late United States 
 Minister to Italy, and Honorable John Buchanan Hall, counselor 
 at law, Stockton. The character and extent of these obligations 
 will be shown, and acknowledgment made of substantial favors 
 received from a number of other persons, in a memorandum at 
 the close of the book. 
 
CONTENTS. 
 
 A.—ROMAX WATER-LA WS— INTRODUCTORY. 
 
 I5TEODUCTIOX — Impoktasce OF THE RoMAX LAWS OF WATERS: — Time and cip- 
 cumstances of forming; The fountain head of legal reasoning; The basis of 
 modem Civil law __. p. 36. 
 
 CHAPTER I. 
 
 Roman Laws and ADMI^^sTRATIVE Policy with respect to 
 Waters and Water-Courses. 
 
 Sectiox I — Eight of peopebtt i>- waters and water-coukses : — Property 
 classified; Running waters, common property; Navigable rivers and impor- 
 tant streams, public property ; Unimportant streams, private property ; Rivers 
 defined; Ownership and use of banks and beds p. 37. 
 
 Sectiox II — Contbol of public rivers axd waters: — Rights of navigation 
 and fishery; Guarding channels, banks, beds, and waters; Construction and 
 maintenance of works; Riparian right to protect banks ; Public waters always 
 devoted to public use; Permits to divert and use ; Exercise of privileges; PubUc 
 springs and reservoirs ; Prescriptive rights; Waste prohibited p. 42. 
 
 Section III — Comtrol of waters ix private works: — Springs on private 
 lands, private property; Rights to use spring waters ; Prescription; Agreement; 
 Spring waters become common property ; Riparian rights to use ; Water in pri- 
 vate works, private property; Use of private waters; Waste prohibited p. 45. 
 
 Sectiox IV — The right of way to cokduct waters: — Servitudes classified ; 
 Servitude to conduct water; Acquirement of right; Prescription; Agreement; 
 Condemnation of right-of-way for public works; Servitude of right-of-way for 
 private works ; Permission to conduct water across public property ; Servitude 
 to draw water p. 46. 
 
 B.— FRENCH IRRIGATION DEVELOPMENT. 
 
 Ixtroductiox : — Wide range of conditions in French irrigation ; Strict admin- 
 istration of water-courses; Governmental encouragement of irrigation; An 
 instructive inquirj' p. 51. 
 
 CHAPTER II— FRANCE (i); 
 Right of Property in and Control of Water-Courses. 
 
 Section I — Origin of property rights and ownership of streams: — Naviga- 
 ble and floatable streams, public property ; Inalienability of the public domain ; 
 Water-cour.ses not navigable nor floatable, common property; Government 
 control of channeb^. Riparian right to use waters, as a servitude ; Waters are 
 a common property of all the people ; Beds a common propertj' so long as cov- 
 ered p. 53. 
 
 Section II — Water laws and regulations: — Agriculture and irrigation; 
 Manufacturing and water power ; Internal transportation ; Inimdations ; San- 
 itary necessities. Agriculture a leading interest; High rank of irrigation in 
 the laws; The administration favors irrigation. Statutory law ; Two branches 
 
22 IRRIGA TION DE VELOPMENT. 
 
 of a sort of Common law; Judicial decisions; Administrative rulings; No gen- 
 eral water law or code in France - - . - p. 58. 
 
 Section III— The Administration :— Supervision of public and common prop- 
 erty ; Administration of non-navigable and of navigable streams. Administra- 
 tive purpo.se and policy; Regulation of works and waters on floatable streams, 
 and of works in streams not floatable. Government organization; Central 
 administration; Departmental governments; Communal goyemments. The 
 bureau of public works; The engineering department; Administrative work- 
 ing; Navigation and river guards; Policing of streams; River regulations; 
 Duties and compensation ; Necessity for guarding streams _ . . p. 61. 
 
 CHAPTER Iir— PRANCE (2); 
 
 Water Privileges on, and the Administration of Navigable 
 AND Floatable Streams. 
 
 Section I — Water privileges: — Irrigation, manufacturing, industrial, and 
 municipal uses; Governmental regulation. Object of administration; Rivers 
 and river works in France; Necessity for rivers conservancy ; Systems on the 
 lower and on the higher rivers ; Pubhc rivers; Non-navigable tributaries ; Non- 
 navigable arms of navigable rivers. Forms of irrigation enterprise; Individ- 
 ual; Cooperative; Speculative companies. Applications and formalities; For 
 water privileges on non-floatable streams, and on public streams. Water right 
 grants; Obligations of grantees ; Conditions of concession ; Privileges of grant- 
 ees ; Benefits to company _ p. 74. 
 
 Section II — Regulation of works: — Government improvement of navigable 
 rivers ; Canalization of upper rivers ; The hydraulic service. Organization for 
 agricultural hydraulic works ; Principles of cooperation and compulsion ; When 
 water an enemy and when an auxiliary. Regulation of dams and headworks ; 
 Combination of navigation with water-power or irrigation dams p. 90. 
 
 Section III — Operation and Maintenance; Maintenance of public, private, 
 and joint works; Distribution of expense of cleaning and dredging of channels ; 
 Police of streams; Powers of departmental councils; Compulsory removal of 
 objectionable works; Administrative duties of prefects. Water privilege rents; 
 Rates for water-power, irrigation, industrial uses, municipal uses; Revision of 
 rents every thirty years _ -p. 94. 
 
 CHAPTER IV— FRANCE (s); 
 
 Water-Rights on, and the Administration of Non-floatable 
 
 Streams. 
 
 Section I — Rights to the bse of water : — Water-rights previous to the time 
 of the Code Napoleon; Riparian claims to absolute control of streams; The 
 waters a common property of all people. Riparian water-rights under the code ; 
 The riparian water-right, and the right of way; Law of 1845; The dam privilege 
 law of 1847; Control of the fall of a .stream. Nature of the riparian right to 
 water; An undefined part of a common right to use, subject to regulation. 
 The right of irrigation; Absorption of water; Drainage and residue to be re- 
 turned ; Bach case one for equitable administration p. 100. 
 
 Section II— Supervision of construction of works:— The decentralization 
 of the administration; Powers held by prefects; Police measures; Public inter- 
 ests; Regulation of division of waters; Regulation of works. Permits to con- 
 struct works; Right to water must be estabUshed ; Formalities; Conditions of 
 permits. Legal heights of dams and headworks; Sluiceways and weirs; Mov- 
 able dams for irrigation ; Dimensions and form of outlets p. 108. 
 
 Section III— Regulation and operation — Works and waters: — Necessity 
 for regulation and administration; Individual unreasonableness; Conflicting 
 decisions ; Varying conditions. Administrative authority to make regulations ; 
 Origin of authority ; Promotion of harmony and prevention of abuse. Prin- 
 ciples adhered to; Points to be met; Rules as to division of waters; Division 
 by measurement and by turns; Ancient custom governing; Policing of water- 
 courses - _ p. 115. 
 
TABLE OF CONTENTS. 23 
 
 CHAPTER V— FRANCE (*) ; 
 
 Right of Property in Springs, and Rights to Use Spring 
 
 Waters. 
 
 Section I — Ownership and control of springs ; — Absolute ownership; Own- 
 ership of land carries with it ownership of springs on it; This doctrine for a 
 long time strongly opposed, but upheld ; Right to use spring waters may be 
 lost - _ p. 127. 
 
 Section II — Acquired rights to spring waters: — Public and private use of 
 springs; Necessities of communities; Interests of navigation; Private acguire- 
 ment of right by title and by prescription ; Servitudes, resulting from divisions 
 of estates _ _ _ p. 129. 
 
 Section III — Drainage and other rights; — Natural right 'of drainage ; Re- 
 strictions on extension. Right to dig or bore for water ; Extent of privilege ; 
 Forfeiture.. p. 132. 
 
 CHAPTER VI— PRANCE (s); 
 
 Right of Way to conduct Water, and Right to abut a Dam. 
 
 Section I— Rights for works of public importance: — Condemnation for 
 works of public utility; Administrative inquiry; Special laws of authorization ; 
 Wav for main and secondary works; Embarrassment previous to right-of-way 
 law'of 1845 - p. 135. 
 
 Section II — Rights for private water-ways: — Servitude of right-of-way; 
 Opposition to its establishment ; Law of 1845. Servitude of right-to-abiit-a-dam ; 
 The complement of the former servitude; Law of 1847; Application of these 
 laws p. 138. 
 
 CHAPTER Vn— FRANCE C^); 
 Irrigation Enterprise and Organization. 
 
 Section 1 — Governing influences: — Climatic and social influences; Irriga- 
 tion not generally appreciated; Small landholdings and jealousy of rights ; Pov- 
 erty of peasantry and indifference of capital; High valuation of lands; Heavy 
 cost of works ; Riparian rights question . p. 143. 
 
 Section II — Irrigation companies and associations: — Speculative compa- 
 nies; Associations of landholders; Ne'cessity and advantage of, and causes 
 which retarded association. Syndicate associations; Law of 1865; Free syndi- 
 cate associations ; Authorized syndicate associations ; The principles of cooper- 
 ation and compulsion p. 147. 
 
 CHAPTER VIII— FRANCE ('); 
 Governmental Policy and Irrigation Concessions. 
 
 Section I — Features of policy and forms of enterprise :— Political and 
 social conditions; Irrigation not made a general national work; Contrast be- 
 tween the case of France and those of India and Egypt. Forms of govern- 
 mental encouragement; Tax rebate on advanced values due to irrigation; 
 Loans, advances, subsidies, guarantees; Main works built for associations; 
 Main works built for state management; Premiums on irrigation examples; 
 Statistical atlas of irrigation p. 155. 
 
 Section II — Notable instances of enterprise and encouragement: — The 
 canals des Alpines, Carpentras, Cadenet, St. Martery. Siagne, Siagnole, Bourne, 
 Rhone, Vesubie, Pierre-latte, Manosque, Herault; Other late works p. 165. 
 
24 IRRIGA TION DE VELOPMENT. 
 
 C— ITALIAN IRRIGATION DEVELOPMENT. 
 
 Inteoduction — Importance o£ the study of irrigation experience in Italy: — 
 The valley of the Po, the classic land of irrigation; Magnitude, nuriiber, and 
 excellence of its irrigation works; Long continued systemization of its irriga- 
 tion practice; Its irrigation customs crystallized into well ordered codes of 
 laws.. . p. 183. 
 
 CHAPTER IX— ITALY (i); 
 
 Right of Property in, and Control over Water-Courses and , 
 Water-Sources. 
 
 Section I — Basis of pkopebty eights in watee-coueses and watees in noeth- 
 EEK Italy: — Government ownership of all natural streams of importance as 
 irrigation feeders ; Eoyal ordinances and codes ; Neither navigability nor float- 
 ability the test of public importance of a stream in Italy ; The volume of waters 
 available for irrigation, the test. Government control of water-courses ; Gen- 
 eral regulations for water-courses in Piedmont; River regulations in Lom- 
 bardy- *. p. 185. 
 
 Section II — Owneeship and conteol of speings: — Character, number, and 
 importance of springs in the valley of the Po ; Property right in springs, and 
 acquired rights to use spring waters. Origin and source of the waters ; Restric- 
 tions on the opening of new springs ; In Lombardy ; In Piedmont. Regulations 
 present questions for experting p. 197. 
 
 Section III — The Ripaeian Right: — No private streams, except small rivu- 
 lets, in Italy ; No control of waters by riparian proprietors on public streams ; 
 Riparian rights on rivulets, under the Sardinian code ; The Italian code on this 
 subject; Comparisons p. 204. 
 
 CHAPTER X— ITALY (2); 
 
 Water Privileges and Canal Works, and the Administration 
 OP Waters and Works. 
 
 Section I — Rights to constedct woeks in and diveet waters feom steeams: — 
 Past and present governmental policy in regard to water privileges; Applica- 
 tions and formalities for water privileges; Piedmont, Lombardy, and the pres- 
 ent kingdom of Italy ; Terms of water-right concessions ;' Lombardy ; Piedmont ; 
 AU Italy p. 207. 
 
 Section II — Administeative eegulation of watee-coueses: — General admin- 
 istrative organization ; Departmental administrative organizations ; River reg- 
 ulation in Piedmont; Instructions to agents of the domain; Regulations for 
 navigable and for non-navigable rivers; Austrian river regulations for the 
 province of Mantua, Lombardy. p. 220. 
 
 Section III— Administeatioh of government canals:— Former Piedmontese 
 administrative bureau ; The office of works, and the engineering corps ; Instruc- 
 tions to the agents of the domain, concerning canals and waters; General reg- 
 ulation for the administration of the royal canals; The former Lombardian 
 system; The present system for aU Italy ...p. 233. 
 
 CHAPTER XI— ITALY (s); 
 Regulation op Irrigation Practice. 
 
 Section I— Disteibution and measurement of waters: — Hydraulic science 
 and practice; Problems of distribution and measurement; Former Piedmont- 
 ese legislation ; Present legislation for all Italy ; Distribution by volume, bv use 
 or service, and by time _ _ _ _ p 240 
 
TABLE OF CONTENTS. 25 
 
 Section II — Kights of ikbigators:— (1) Kight to a continuance of water from 
 •canals; The former ruling in Piedmont, not recognized in the Sardinian code; 
 Loiig leases and carefully drawn agreements, the outcome of these contentions; 
 (2) Kight to the use of spare waters; The Sardinian and the Italian codes, on 
 this point __ _ _p. 258. 
 
 Section III — Obligations and rights of ierigatohs and canal men:— (1) Con- 
 ■cerning water supply and xise; Provisions of the former Sardinian and of the 
 Italian codes ; (2) Priority of privilege in distribution; Schedules for distribu- 
 tion p. 2fi3. 
 
 CHAPTER XII— ITALY (*); 
 
 Regulation of Drainage and Works connected with Irriga- 
 tion Practice. 
 
 Section I — Regulation of works accessory to irrigation practice: — Dis- 
 tances to be preserved from boundaries of tracts; Obligations concerning the 
 construction and maintenance of works; Prevention of interference p. 268. 
 
 Section II — The rights and obligations of drainage: — Necessity for drain- 
 age in Italy ; Troubles arisigg out of drainage matters ; The principles of the 
 former Piedmontese, and Lombardian, and present Italian laws ; Comparison 
 of these laws p. 271. 
 
 Section III — Sanitary Legislation: — Unheeded teachings of experience; 
 Evil effects of unregulated and unskilled irrigation ; Legislative regulation of 
 rice culture in Lombardy and in Piedmont; Present legislative sanitary regu- 
 lation of rice irrigation and of meadows, for all Italy. Ip. 275. 
 
 CHAPTER XIII— ITALY (5); 
 Right of Way to conduct Waters. 
 
 Section I — Ancient and modern laws on rights of way:— Milanese code of 
 1216; Venetian code of 1455; Charles Emmanuel code of 1770; Lombardian 
 laws and decrees of 1804 and 1806; The wisdom of these last laws overlooked 
 by the Austrian rulers of Lombardy in 1816 ; Trouble growing out of this over- 
 sight; Decision of the Aulic council at Vienna, and return to the Napoleonic 
 laws in 1820 p. 284. 
 
 Section II — Servitude of way to conduct waters: — Piedmont under the 
 Sardinian code; Nature of the right; Form and amount of compensation; 
 Three forms of the right-of-way question ; First form— the right of aqueduct 
 across lands ; Second form — the right to cross other canals ; Third form — the 
 right of aqueduct by or through other canals ; Former Lombardian, Piedmont- 
 ese, and present general Italian laws p. 289. 
 
 Section III — Eight of aqueduct for public waters: — Condemnation for 
 purposes of public utility; The former Sardinian and present Italian codes' 
 provisions; Opinions of Smith and of DeBuffon, on the system p. 307. 
 
 CHAPTER XIV— ITALY ("); 
 Irrigation Organization and Regulation. 
 
 Section I — Irrigation organiz.\tion : — Causes and necessities of organiza- 
 tion; Social tendency of irrigation in Italy; Formation of irrigation associa- 
 tions in Lombardy; Former law of association in Lombardy.- p. 312. 
 
 Sb:ction II — Organization and management of irrigation associations: — 
 General association of irrigation west of the Sesia^Piedmont ; Organization 
 and management; Government lease of waters and canals to the association; 
 Eights and privileges under tbe lease ; Management of waters and maintenance 
 ■of works ; Revenue and rents p. 319. 
 
26 IRRIGA TION DE VELOPMENT. 
 
 Section III— Organization of ikeigation associations; — Present law for all 
 Italy ; Voluntary association of landholders ; Compulsory formation of associ- 
 ations; The principles recognized as to inseparable community of interests, 
 and public utility in such works -_-p. 328. 
 
 CHAPTER XV— ITALY ('); 
 
 Ireigation Enterpbise. 
 
 Section I — Fokms and examples oe canal enteepeise : — The association prin- 
 ciple not generally applied in carrying out main canal works ; Works carried 
 out in ancient and modern times ; The great Cavour canal ; Its character, size, 
 location, cost, history, and unfortunate management p. 334. 
 
 Section II — Concessions to capitalized companies : — Analysis of the conces- 
 sion to the Cavour canal company; (1) Obligations of the company; (2) Condi- 
 tions of the concession; (3) Privileges to the company; (4) Benefits to the 
 company p. 339. 
 
 Section III— Goveenment ibeigation policy: — General policy as to pub- 
 lic works; Prize competition in irrigation practice; Hydrographic survey of 
 Italy. - ----- - -.p." 347. 
 
 B.— SPANISH IRRIGATION DEVELOPMENT. 
 
 Inteoduction :— Spain peculiarly an irrigation country; Its geographj"^, cli- 
 mate, rainfall, and river systems. Social and political influences on irrigation 
 development p. 355. 
 
 CHAPTER XVI— SPAIN (i); 
 Old General Water-Laws. 
 
 Section I— Origin and development of the laws of Spain : — Roman, Gothic, 
 and Moorish systems; Old codes of Castile, Aragon, and Leon; Early Spanish 
 codes; Growth of irrigation customs.-- -- p. 359. 
 
 Section II — Peopeety right in watees and water-courses: — Ancient sys- 
 tems; Modern divisions of property ; Pueblo and communal properties; Nature 
 of common property; Town rights _-p. 365. 
 
 Section III — Control and regulation of waters and water-coueses : — Of 
 rivers and their waters; Of small streams and riparian rights; Of springs and 
 spring waters ; Of rain and torrent waters _ p. 371. 
 
 CHAPTER XVII— SPAIN (2); 
 Old Local Water-Laws and Customs — Valencia. 
 
 Section I— Disteict of Valencia — Associations:— The garden plain of Va- 
 lencia; Its seven associated irrigation communities; Water appurtenant to 
 land; Syndics; Syndicates; Extensive powers; Peculiar duties, and responsi- 
 bilities- - p. 383. 
 
 Section II— Disteict of Valencia— Administeation: — Joint board of syn- 
 dics; Sydicate-general for the Turia; Lociil administration of natural streams- 
 Tribunal of waters, or jury of irrigation ; Origin of Spanish arbitrative svstem 
 m irrigation p. 393. 
 
 Section III— Disteicts of Jucar and Mueviedeo:— ./uca)-- One great associa- 
 tion of political communities, administering one great irrigation work ; General 
 council of deputies named \)j_ town councils and large private interest's- Water 
 appurtenant to lands. Jlf«rOT'«dro— Governing council members elective in sub- 
 districts; Administrative committee, serving as water-court; Water appurte- 
 nant to land --- - p 399 
 
TABLE OF CONTENTS. 27 
 
 Section IV — Districts of Alicante and Elciie:— J?icaiiJe — Complex water- 
 rights; Natural flow held as separate property; Stored water appurtenant to 
 lands; Mixed administration; Water tickets. Elche — Water a separate prop- 
 erty; Daily auction sales of water turns; Judge of sales; Evil results of the 
 system __ p. 40S. 
 
 CHAPTER XVIII— SPAIN {^); 
 Old Local Watee-Laws and Customs — Murcia and Granada. 
 
 Section I — Murcia — District of Murcia:— Water appurtenant to lands; Self 
 government in irrigation distribution; The district and twenty subdistricts ; 
 Water supply and maiii works in charge, municipality; General, half-district, 
 and subdistrict assemblies ; Agents or attorneys ; Council of experts p. 414. 
 
 Section II — Murcia — District of Lorca: — Water holding gradually sepa- 
 rated from land; Great government reservoirs; Curious and complex system 
 of water-rights; Auction sales of water; Evils of the system; Government di- 
 rector _p. 421. 
 
 Section III — Murci.a — District of Almansa: — Water supply from an an- 
 cient reservoir ; Water appurtenant to lands ; Elective syndicate of three mem- 
 bers; Water rates only on lands irrigated; Extraordinary assessments on all 
 lands ^^ - - - :_p. 428. 
 
 Section IV — Geanad.4 — District of Gran-ad.^: — Ancient Moorish system 
 preserved intact; Many small works; Xo general system or stated organiza- 
 tion; llule of custom ; "Apparent contusion, but real order. Reasons for out- 
 come - p. 430. 
 
 CHAPTER XIX— SPAIN (*); 
 
 New Water-Laws — Ownership and Control of Water-Courses 
 AA'D Water-Sources. 
 
 Section I — Modern water-laws and regulations: — Development of consti- 
 tutional government; Influence on irrigation legislation and administration; 
 Review of laws to 1884 -- -- ..p. 433. 
 
 Section II — Ownership of and rights to waters and watee-coukses : — 
 Definitions, rain-waters, rising waters, rivers, standing waters; Beds, banks, 
 and channels; Property rights in foregoing; Rights of water-source owners; 
 Riparian rights.-- ". p. 441. 
 
 Section III — Acquired rights to the use and control of waters: — Private 
 appropriation of public waters ; Development of subterranean waters ; Water- 
 ri^t concessions ; Protection of prior rights p. 453. 
 
 CHAPTER XX— SPAIN (s); 
 New Water-Laws — Right of way to conduct Waters. 
 
 Section I — Servitudes of .iQUEDUCT and abutment: — These servitudes of 
 recent grafting on Spanish law, from the French and ItaUan; Their natures 
 and the methods of enforcing them p. 469. 
 
 Section II— Rights of way by condemn-ation of lands: — Expropriation of 
 private properties for purposes of public utility; General expropriation law; 
 Special provisions in the general water-law p. 474. 
 
 CHAPTER XXI— SPAIN («); 
 New '\A''ater-Laws — Administration and Police. 
 
 Section I — Gener.al administilation of waters and water-courses: — The 
 administration; Organization and system p. 479. 
 
28 IRRIGATION DEVELOPMENT. 
 
 Section II — IjOcai, admihistkation of watees and ibbigation : — Self govern- 
 ment in irrigation; Development of local irrigation administration; Ancient 
 custom and modern system p- 483. 
 
 Section III — Ikeigation communities:— Governmental policy, water-rights, 
 and association; Principles of association; Forming irrigation communi- 
 ties p. 490. 
 
 Section IV — Community administeation : — Ordinances of an irrigation com- 
 munity ; Regulations for syndicates,' general syndicates, and juries of irriga- 
 tion ; A system perfected from the old local models described in chapters X V II 
 andXVIII----: p. 498. 
 
 CHAPTER XXII— SPAIN {''); 
 Governmental Policy and Irrigation Enterprise. 
 
 Section I — Past peomotion of ieeigation: — Ancient governmental works; 
 Policy of the modern constitutionalists; Liberal policy of the regency; Study 
 of water supply p. 508. 
 
 Section II— Peksebt ieeigation policy of Spain: — Review of laws now in 
 force ; Subsidies and exemptions offered ; Examinations, applications, and terms 
 of auctions of concessions _ 1 p. 516. 
 
 Section III — Notable irrigation enteepeises: — Canal and reservoir conces- 
 sions under the liberal laws; Lengths, water-rights, irrigable lands, estimated 
 costs, and extent of sub-sidies p. 522. 
 
 APPENDIX I. 
 
 Articles op the Civil Code op France — Water-Courses, 
 Waters, and Irrigation. 
 
 BOOK II. 
 OF PROPERTY AND ITS MODIFICATIONS. 
 
 title I. 
 
 OP THE CLASSIFICATION OP PROPERTY. 
 
 Chaptee I — Of Immovable Propeety. 
 
 Servitudes— Rights-of-way for waters, dam rights, and acquired rights to 
 take waters — rank as such p. 527. 
 
 Chaptee III— Of Peoperty with Reference to those who are in Posses- 
 sion OF IT. 
 Public ownership of floatable and navigable rivers and streams; Things which 
 are not susceptible of private ownership; Common ownership of rights to 
 waters acquired by towns p_ 527. 
 
 TITLE II. 
 OF PEOPERTY. 
 
 Chapter II— Of the Eight of Accession over what is Connected with and 
 Incorporated with Anything. 
 Ownership of springs; Use of private property; Police power of regulation, 
 reserved; Gram and loss to riparian estates by depositing or abrading action of 
 currents; Alluvion; Riparian rights to stream beds ; Public ownership of beds 
 occupied by waters _. _ _ „ 528 
 
TABLE OF CONTENTS. 29 
 
 TITLE IV. 
 
 OF SERVITUDES OU MANORIAL SERVICES. 
 
 Chaptbk I — Of Servitudes Dekived from the Situation of Places. 
 
 Natural drainage rights ; Rights of upper, and of lower proprietors ; Rights 
 ot water-source owners; Prescriptive rights of lower proprietors to use spring 
 waters; Riparian right of servitude to use waters of small streams p. 530. 
 
 Chapteb II — Of Servitudes Established by Law. 
 
 Public, communal, and private rights to use of riparian lands for purposes 
 accessory to navigation and fishing on public streams. p. 531. 
 
 Chapter III— Of Servitudes Established by the Act of Man. 
 
 Rights-of-way for waters established by servitude ; Also rights to take waters 
 from private lands. Modes of establishing servitudes; By agreement; By 
 division of estates ; By prescriptive use. Rights of proprietors of dominant 
 estates. Extinguishment of servitudes p. 531. 
 
 BOOK III. 
 OF DIFFERENT MODES OF ACQUIRING PROPERTY. 
 
 General Dispositions. 
 
 Property which has no owner (running water) belongs to the nation. Things 
 which belong to no one, and the use of which is common to all. The laws of 
 police regulate the manner of use of such properties p. 534. 
 
 APPENDIX II. 
 
 Articles of the Civil Code of Italy — Water-Courses, 
 Waters, and Irrigation. 
 
 BOOK II. 
 OF PROPERTY AND ITS MODIFICATIONS. 
 
 TITLE I. 
 
 OF THE CLASSIFICATION OF PROPERTY. 
 
 Chapter I — Of Immovable Property. 
 
 Springs, reservoirs, and water-courses, thus classed; Canals, thus classed 
 under certain conditions ; Also Servitudes— Right-of-way for waters, etc.p. 535. 
 
 Chapter III— Of Property relatively to the Person to whom it Belongs. 
 
 Public properties and private properties ; Rivers and torrents, public ; Public 
 domain inalienable; Communal control of certain common properties. -p. 536. 
 
 TITLE II. 
 
 OP PROPERTY. 
 
 Chapter I— General Provisions. 
 
 Propertyship defined; Protection of private property; Condemnations for 
 
 public use; Implied ownership of waters beneath land ,.-p. 53K. 
 
30 IRRIGA TION DE VELOPMENT. 
 
 Chapter III— Of thb Right of Accession to that which is Incorporated 
 WITH OR United to a Thing. 
 Eight to excavate, and to discover waters on private property; Loss and gain 
 to riparian lands by changes of channel, abrasions, and deposits — alluvion; 
 Ownership of occupied and of abandoned channel beds; Of newly formed 
 islands; Riparian bank-1-ights -- P- 537. 
 
 TITLE III. 
 
 OF THE MODIFICATIONS OF PROPERTY. 
 
 Chapter II — Of Pbadial Servitudes. 
 
 Section I— Of Servitudes Established by Law. 
 
 Those for public use — water-courses, tow-paths, right-of-way — Special admin-" 
 istrative regulations. Those for private use — Regulated by rural police rules 
 and present section p. 539. 
 
 § I. Servitudes resulting from situations of places: Right of natural drain- 
 age over lands; Privileges and obligations of lower proprietors; Obligations of 
 upper proprietors; Construction and maintenance of works and channels; 
 Rights and obligations of water-source owners; Riparian right to utilize waters 
 of small streams not public; Rights of owners of water.. p. 539. 
 
 § III. Of Intermediate Distances and Works: Construction of ditches or 
 canals on or near boundary lines; Excavations of springs near boundary lines 
 or other springs or fountains p. 541. 
 
 § VI. Of the Right of Passage or Aqueduct : The enforced right-of-way for 
 -water, for public and certain private uses ; For waters of drainage and for ool- 
 
 matage; The enforced right-to-abut a dam p. 541. 
 
 Section II — Of Servitudes Established by the Acts of Man. 
 
 § I. Different kinds of Servitudes which can be laid on Estates: Classifica- 
 tion; Legal character of the right to take water; Concessions or permits to 
 take water; Conditions; Measurement and division of water p. 544. 
 
 § II. Manner in which Servitudes become established by the acts of man: 
 Title or agreement; Prescription; Division of estates; What constitutes pre- 
 scription p. 546. 
 
 Section III — In what Manner Servitudes are Exercised. 
 
 What a right of servitude includes ; Obligations to clean, maintain, and repair 
 
 works; Compensation for injuries from waters; Duties of canal, and bordering 
 
 land owners; Voluntary formation of associations to carry out irrigation, 
 
 drainage, or reclamation works ; Compulsory formation of such associations ; 
 
 Majority rule p. 547. 
 
 Section IV^Extinguishment of Servitudes. 
 Non-user; Prescription; Evidences of servitudes, on servient estates. .p. 549. 
 
 TITLE IV. 
 
 OF COMMUNITY PROPERTY. 
 
 Formation of irrigation, drainage, or reclamation communities; Management 
 
 of community affairs; Rights and obligations of members; Responsibilities of 
 
 communities _ __ ..p 550 
 
 APPENDIX III. 
 
 General Water-Law and Irrigation Code of Spain. 
 
 TITLE I. 
 
 OF THE DOMINION OF TERRESTRIAL WATERS. 
 
 Chapter I— Rain-Waters. 
 
 Definition; When ownership private, when public; When control private 
 
 when public; When control municipal, when provincial .p. 552! 
 
TABLE OF CONTENTS. 31 
 
 Chapter 11 — Living Waters, Springs, and Streams. 
 Waters of public domain; Waters of private ownership; Eights of casual 
 employment of waters ; Preservation and forfeiture of primary rights; Mineral 
 
 waters p. 552. 
 
 Chapter 111— Standing Waters. 
 Ownership of waters of lakes, marshes, and ponds; When private, when 
 
 public - --- p. 555. 
 
 Chapter IV — Subterranean Waters. 
 Rights acquired by discovery of subterranean waters ; Concessions for explor- 
 ations on public domain ; Restrictions placed on opening of ordinary, and of 
 ■artesian weUs, shafts, or galleries p. 556. 
 
 TITLE 'II. 
 OP CHANNELS, WORKS, AND DRAINAGE. 
 Chapter V — Channels, Banks, Margins, and Accretions. 
 
 Ownership of beds of rain-waters, small streams, and of rivers; When private, 
 when public ; Ownership and control of banks and margins ; Loss and gain of 
 
 riparian lands by washings and deposits _ p. 558. 
 
 Chapter VI — Works of Defense Against Public Waters. 
 
 Rights of riparian owners to construct levees, and works to protect banks; 
 Oovernmental regulation of construction and maintenance; River works of 
 public importance constructed by the state ; Water supply, flood regime, and 
 
 channel studies; Supervisory powers of the minister of public works p. 561. 
 
 Chapter VII — Drainage and Reclamation of Lands. 
 
 Privileges to owners to reclaim; Compulsory cooperation in drainage and 
 reclamation; Compulsory drainage of lands; Exercise of the state's police 
 power; Concessions of reclamation rights on public domain; Public works of 
 this kind p. 562. 
 
 TITLE III. 
 
 OP THE SERVITUDES ON THE SUBJECT OP WATERS. 
 
 Chapter Vlll — Natural Servitudes. 
 
 Natural right to drain over lower lands ; Rights of the lower proprietors to 
 
 protect property, and utilize waters ; Rights and obligations of upper owners ; 
 
 Debris and detritus - p. 564. 
 
 Chapter IX — Servitudes under the Law. 
 Right-of-way for water; Enforcement of, for public purposes, for certain pri- 
 vate purposes. Right-to-abut a dam; Enforcement, etc. Right to draw water; 
 Imposed for public purposes, etc. Tow-path, and other public and private 
 rights on riparian properties ; Governmental classification of streams ; Rights 
 •of those who navigate and fish in the streams, to the use of banks ; Obligations 
 ■of riparian proprietors - p. 565. 
 
 TITLE IV. 
 
 OP THE USEFUL EMPLOYMENT OP PUBLIC WATERS. 
 
 Chapter X — Common Utilizations. 
 
 Employment of public waters for domestic, agricultural, and manuf^acturing 
 
 purposes; Occupation of public w;aters for fishing; Navigation, and flotation 
 
 •of rafts and timber - - ..p. 572. 
 
 Chapter XI — Special Utilizations. 
 Concession of water employment privileges ; Employment of public waters 
 for the supplying of populations ; Water supply rights for railroads ; Utiliza- 
 tion of public waters in irrigation ; Water supply for canals of navigation ; Occu- 
 pation of public waters by ferries, bridges, and industrial establishments ; Water 
 ■supply for fish ponds and hatcheries p. 575. 
 
32 IRRIGA TION DE VELOPMENT. 
 
 TITLE V. 
 
 OP THE ADMINISTKATION OP "WATERS. 
 
 Chapter XII— Police of Wateks. 
 
 Public waters and water-courses in charge of the administration; Powers 
 
 and duties of minister of public works ; Governmental supervision of waters on 
 
 private lands - - ---P- ^°^- 
 
 Chaptee XIII— Ieeigation Communities. 
 The association of land owners to construct or manage irrigation, or works 
 of irrigation; Organization, management, and control of communities; Syn- 
 dicate boards of control; General or central syndicates; Administration of 
 waters; Tribunals, or juries of irrigation; Enforcement of regulations; Arbi- 
 tration, and settlement of conflicts - P- 589. 
 
 Chapter XIV— Governmental Administration of "Waters. 
 Powers and duties of the minister of public works ; Of governors of prov- 
 inces; Granting new water privileges; Protection of prior rights; Courses of 
 administrative procedure; Appeals from the administration; Supremacy of 
 
 the administration within its sphere. - -P- 593. 
 
 Chapter X^V — The Courts in the Matter of Waters. 
 Jurisdiction of the administrative courts; Of the civil courts of law; Of the 
 
 ordinary tribunals of justice p. 594. 
 
 Schedule — General Provisions. 
 Protection of rights acquired previous to the passage of the law. Repeal of 
 all laws and parts of laws in conflict with the new law —.p. 595. 
 
 APPENDIX III— A. 
 
 Model Ordinance for an Irrigation Community. 
 
 Issued as an administrative regulation by the general government of 
 Spain - p. 596. 
 
 MEMORANDUM. 
 
 Irrigation Report of the State Engineer. 
 
 Acknowledgments of assistance and favors received, relating to the present 
 volume ., p. 605. 
 
 Authorities and data from which this volume has been written ; and the rela- 
 tive extent of their use ..p. 606. 
 
 Other forthcoming Reports of the State Engineer, and compilations by the S. 
 E. Department p. 607. 
 
 Maps of the State and of its Irrigation Districts ; prepared by the State Engi- 
 neering Department-:... _ ...p. 608. 
 
PART I OF THE IRRIGATIOlf REPORT OF TEE STATE ENGINEER OFCALIFORNIA. 
 
 IRRiaATION DEVELOPMENT. 
 
 LEGISLATION AND ADMINISTRATION, 
 IN COUNTRIES UNDER THE CIVIL LAW. 
 
 PRAirOE; ITALY; SPAIF, 
 
IREIGATION DEVELOPMENT. 
 
 OONTEUTS. 
 
 Chapter I.— Eoman Empire i Introductory- 
 Chapters II-YIII, — France. 
 Chapters IX-XV— Italy. 
 Chapters XVI-XXII.— Spain. 
 
 Appendix I,— France— Civil Code articles. 
 Appendix II.— Italy^^ivilCode articles. 
 Appendix III.— Spain— New Water Laws. 
 
IKEIGATION LEGISLATION AND ADMINISTRATION. 
 
 ROMAN EMPIRE. 
 
EOMAN lEEIGATION LEGISLATION. 
 
 INTRODUCTION. 
 
 It may be said that Rome once ruled all the countries of South- 
 ern Europe, Northern Africa, and Western Asia where irrigation 
 had its birth and its greatest development in ancient times ;^ and 
 that her laws with respect to waters were crystallized several cen- 
 turies after the Romans became familiar with the practice of 
 irrigation and the necessities of the irrigation interest as at that 
 time recognized in the various quarters of this region.' 
 
 Those who were regarded as authority at the law in Rome, who- 
 plucked from the confusion of her earlier customs and edicts the 
 principles of her laws, with others who expounded those principles 
 and formulated her system, were amongst the most acute and 
 logical thinkers the world has known to this day; so that modern 
 jurisprudence, at least in continental Europe, has been so far 
 guided by the principles of the Roman Law, it has been said, in 
 substance, that " having ceased to rule the world by their arms, 
 the Romans still control mankind by their reason." 
 
 This being the case, it is well that our inquiry commence with 
 a glance at the leading features of the laws and administrative 
 policy of this people in their dealings with the water-right and 
 irrigation interest, although, considering the vast diiFerence in our 
 social and political establishment and forms of business enterprise, 
 we may not find the positive guide which we are in search of. 
 
 1 Irrigation of course existed in some of these countries long before the Roman 
 Empire was founded, and India and China also were the scenes of irrigation 
 practice at a much earlier period. 
 
 2 Rome was all powerful throughout the Mediterranean countries before the 
 Christian era; but the Theodosian codes were promulgated more than four cen- 
 turies, and the Justinian codes more than five centuries, later. 
 
OHAPTEE I.-THE EOMAN EMPIRE. 
 
 EOMAIf LAWS AND ADMINISTEATIVE POLICY WITH EESPEOT 
 TO WATEES AND WATEE-OOUESES. 
 
 Section I.— Eight of Property in Waters and Water-Courses. 
 Common Property — Running Waters. 
 Public Property— Rivers ; Private Property — Brooks. 
 Resumfi as to Ownership. 
 
 Section II.— Control of Public Rivers and Waters. 
 
 Construction and Maintenance of Works. 
 Use of Public Rivers. 
 Use of Public Waters. 
 
 Section III. — Control of Waters in Private Works, and on Private Lands. 
 Private Springs. 
 
 Ownership of Waters of Springs and in Works. 
 Acquirement of Right to use Waters. 
 
 Section IV. — Right of Way to Conduct Waters. 
 
 Prsedial Servitudes — Aquii' ductus; Aqiix haustus. 
 The Right on Private Property. 
 The Right on Public Property. 
 
 SECTION I. 
 Right op Property ix Water and Water-Courses. 
 
 In their classification of things, as a basis of laws regarding 
 ownership and use, the Roman jurists recognized, with respect to 
 propertyship, two general classes: 
 
 Things in patrimonio, capable of being possessed by persons 
 exclusively of others; and things eaira patrimonium, those in- 
 capable of being so possessed. 
 
 Things extra patnmonium were classed under four headings: 
 
 Things common, free to all mankind; things public, belonging 
 to some nation or people; things universitatis, belonging to some 
 certain city, society, or corporation; and things nullius, belonging 
 
38 ROMAN IRRIGATION LEGISLATION. 
 
 to nobody; the latter relating to things consecrated and devoted 
 to religious uses. 
 
 Common Property — Running Waters. 
 
 Like the air, water was regarded as a necessity to human life, 
 of which every one might use so much as was wanted for per- 
 sonal requirements, but which was not capable of appropriation 
 to private ownership further than in this sufficient quantity. 
 
 By the law of nature, flowing water is a common property of all 
 men. — [Justinian's Codes, Lib. 6, Tit. 1, Sec. 1. 
 
 "Ees communes, * * * things the property of no one in par- 
 ticular * * * — the air, running water, the sea and its coasts, 
 and wild animals in a state of freedom. The air is necessary to 
 human life, and every one may use so much of it as is requisite, 
 but it is not capable of appropriation; the same is the case with 
 running water." — [Colquhoun, § 923. 
 
 ''-Res omnium covimunes. Such things, it is obvious by their 
 very nature, could not stand in private ownership. Every person 
 might use and enjoy them, but no one could possess them. These 
 things are the air, running water, etc. When the Romans speak 
 of the air as a res omnium communis, they do not mean to include 
 the space above the earth, but only the atmosphere. The man 
 who owns the soil owns the space above it, and this space is a 
 thing in comviercio" — (capable of barter or sale) ; " but the atmos- 
 phere is a res extra commercium" — (a thing not capable of barter 
 or sale) . " The same remarks apply to running water. The space 
 in which the brook or streamlet flows, as it hastens to feed the 
 larger streams, is in private ownership, but the water is not." — 
 [Gains, p. 209. 
 
 " Things common to all, are those which being given by provi- 
 dence for general use cannot be reduced to the nature of property. 
 Such are the air, running water, the sea, and the shores of the 
 sea; but if a man by prescription, from time immemorial, had 
 the use of running water, as for a mill, his case was an exception 
 to the general rule, but he must not waste the water unneces- 
 sarily; and mills and other structures might be erected on rivers 
 by special license. Vid. Digests, 48-8." — [Browne, Vol. I, p. 170. 
 
 "From the very nature of such things results the necessary 
 consequence that they can never be completely the object of pri- 
 vate ownership, that they can form the object of such a right only 
 so far, and so long, as it is possible for man to retain them under 
 his dominion or control. Except as to the portions which an 
 individual may thus have brought under subjection, they must be 
 regarded as common to all the world — Res omnium communes." — 
 [Goudsmit, p. 113. 
 
OWNERSHIP OF WATER-COURSES. 39 
 
 Public Property — Rivers; Private Property — Brooks. 
 
 Streams, rivers, lakes, ponds, etc., which were not in private 
 ownership, were regarded as public things, and spoken of as res 
 publinr. things which belonged to the people as a nation. There 
 were public properties used for State purposes, solely and only, by 
 the representatives of the State, the rulers or officials; and public 
 properties used by private individuals, and jdelding revenue to the 
 State for such use; and there were public properties used freely 
 by all the people. 
 
 "Res publicse, in the strict sense of the words, are those things 
 which are exclusively in the possession of the State. Such are 
 public thoroughfares, public streams, public squares, public baths, 
 and the amphitheatres." — [Gains, p. 210. 
 
 The roads and rivers were specially counted as public things by 
 the Romans. " The public could use the river, for instance, as a 
 ship way, or for fishing, but the ownership itself was vested in the 
 State."— [Gaius, p. 210. 
 
 They were not the property of the ruling sovereign, but of the 
 sovereign power of the people collectively, each one of whom 
 could use them as his own, but might not injure them, neither 
 segregate any portion or constituent part of them for his own. 
 And this right of use in the navigable rivers, highways, harbors, 
 and gates, was extended to all, whether Roman citizens or not, 
 who were at peace with Rome. 
 
 Public rivers are defined to be such as were perennial or ever 
 flowing, as distinguished from winter torrents, but this, although 
 one of the essentials of such rivers, was not alone sufficient to 
 render them public, for if located through private lands they were 
 not the property of the public unless navigable or capable of 
 being made so by improvement, or, from some other cause, of 
 public importance. 
 
 " It is not, however, all streams that are public things. Thus 
 Ulpinius says : ' Some streams are public and some are not. 
 Cassius defines a public river as one which runs perennially.' A 
 perennial stream is one which flows throughout the year. Per- 
 ennial brooks are not as such res publicse, although, in conse- 
 quence of their resemblance to public streams, legal protection 
 was afforded to persons having only a private interest in them, 
 which protection was based upon and analogous to that by which 
 waters that were res publicse (public) were protected. There was 
 
40 , ROMAN IRRIGATION LEGISLATION. 
 
 not at any time in Roman law a strictly legal distinction drawn 
 between the river (fluTnen) and the rill or brook {rivus)_. As a 
 general thing, it may be said that the brook is a private thing, and 
 the river the property of the public."— [Gaius, p. 209. 
 
 A river was distinguished from a stream by its greater volume, 
 or more considerable local importance. Rivers were of perma- 
 nent flow, or sometimes only of intermittent flow, leaving their 
 beds dry in summer, when they were called torrents. A perma- 
 nent river might occasionally dry up, however, without losing its 
 character. Permanent rivers were public rivers, and might be 
 either navigable or not navigable.' 
 
 Eiver Banks and Beds — Ownership and Use. 
 
 The bank of a river, like the shore of the sea, commenced at 
 the limit of the spread of the waters at high stage, but when 
 lands were not inundated; land above that line was property in 
 public or private ownership; all below that line was the bed of 
 the river. 
 
 In the case of navigable rivers and all streams of the public 
 property, the beds belonged to the state; being part of the public 
 thing — the river. Should the waters leave such channel and 
 take another, the river, the public thing, was considered to have 
 moved, and the old bed became the property of those whose lands 
 were taken for the new channel, while lands taken for this new 
 channel became part of the public property — ^the river. 
 
 In the case of non-navigable rivers and streams not regarded 
 as public, situated on private property, the beds belonged to the 
 riparian proprietors. While these beds were covered with water 
 it was considered that the rights of such proprietors were sus- 
 pended, but such rights revived when the waters receded. 
 
 By some authorities, and at a different period of time, a some- 
 what different doctrine was held to, regarding the beds of rivers, 
 which was as follows: The beds of rivers were classed with ani- 
 mals, birds, and bees in a wild state, fishes in public water, gems 
 unfound, etc., things capable of private ownership, but yet within 
 the power or possession of no one. When abandoned by the waters 
 the lands of such beds became the property of the riparian propri- 
 etors, as did also alluvial formations in the beds of a stream — 
 
 Justiiiiiin D., Lib. 43, Tit. 12, Sec. 1; Lib. 43, Tit. 12, Sec. 3. 
 
CONTROL OF PUBLIC RIVERS. 41 
 
 "whether in the form of addition to the hanks, or islands in the 
 channel — as soon as deposited. 
 
 " Temporary iniindation suspends, and continued inundation 
 destroys the right of the owner." — [Colquhoun, § 982. 
 
 It is not necessary for the purposes of this report to carry this 
 subject further and consider the matter of alluvion. 
 
 The hanks of a public river might belong to the riparian pro- 
 prietor, to the extent that he had the right to take the fruits, cut 
 the bushes, and fell the trees which grew thereon, but not so as to 
 prejudice the use of the river or its banks by the public. The 
 public had a right to the use of the banks of navigable rivers, so 
 that a qualified ownership of the soil of such banks was all that 
 ■could be acquired by private persons.' The owner of lands which 
 were bounded by a ditch or wall following near the bank, or by a 
 public road on the bank of a public stream, was not a riparian 
 proprietor; to be such his lands had to be bounded by the stream 
 
 itself. 
 
 Eesitme as to Ownership. 
 
 We thus see, and it is essential to keep clearly in view, that 
 the Roman law made a marked distinction between rivers and 
 streams, and the waters thereof. 
 
 Taken as a whole, a river — channel and water — was regarded 
 as a public thing (res publico ), the property of the state, necessarily 
 excluded from private ownership or control, barter or sale, the use 
 of which in its entirety, to be enjoyed by all. 
 
 But the water, regarded as a separate thing from the river, was 
 the property of all the people in common — it was susceptible of 
 apportionment amongst the people — each might drink of it, each 
 dip up a portion and carry it away, and, further than that, if the 
 enjoyment of the public property — ^the river as a whole — ^would 
 not be impaired, each might divert a portion of the water from its 
 natural channel for other purposes than those of his own domestic 
 necessities. But the state, representing the people — the owner of 
 the public thing, the river — was guardian of the common property, 
 the water, and no person could use more than sufficient for his 
 individual necessities and those of his family and cattle, without 
 a special permit so to do. 
 
 ' Colquhoun classes the banks of navigable rivers amongst things public, and 
 says expressly that they were public property so far as the public chose to use 
 them in aid of navigation. 
 
42 ROMAN IRRIGA TION LEGISLA TION. 
 
 Water-sources and some water-courses, it is true, were suscepti- 
 ble of private ownership, and, where thus held, the right to use 
 their waters pertained primarily to such possessor. So, there were 
 springs and brooks, which, being situated on private lands, con- 
 stituted parts of the property, but the water itself, while running 
 in its natural channel, beyond these lands, was the property of all 
 the people, and, as such, was the ward of the nation. 
 
 SECTION II. 
 Control of Public Rivers and Waters. 
 
 It was specially declared to be lawful for every one to navigate 
 his .craft on all public rivers, lakes, and canals, and the banks 
 thereof were open to all for purposes of loading and unloading, but 
 the navigator was forbidden to enter forcibly upon a bank for this 
 purpose. The right of fishery was open to all, and each person 
 might dry his nets upon the shore, and otherwise use the banks as 
 might be necessary in the prosecution of his calling. The banks 
 and channels of public rivers were specially guarded from injury; 
 the construction of works or the placing of obstructions therein, 
 by the effect of which the current might be made more or less 
 rapid, was forbidden. 
 
 The construction of works upon the bank, or in the channel of 
 a public river, whether navigable or not, whereby either the low 
 water or high water flow thereof would be afl'ected, was forbidden. 
 And works which might have an effect such as described, erected 
 without authority, were removed or abolished at the expense of 
 the constructer. 
 
 " Prohibitory interdicts forbade anything being done tending 
 to impede the navigation of public rivers, or changing the course 
 of running water; and other interdicts, of the restitutory class, 
 compelled the reestablishraent of things in the way the public 
 had hitherto enjoyed them." — [Ortolan-Mears, p. 398. 
 
 " The praetor says ; ' I forbid any one to put any structure upon 
 a river or on its banks, or to do anything that would deteriorate 
 the navigation or the water-way.' " — [Justinian D., Lib. 43, Tit. 
 12, Sec. 1. 
 
 Speaking of this interdict, Colquhoun, in substance, says: And 
 this applied to all public streams, whether navigable or not, in 
 full force except in the case of works intended for the protection 
 
CONTROL OF SMALL STREAMS. 43 
 
 or preservation of the banks or channel, the right to construct 
 which works was the subject of a sanction. 
 
 '■ This interdict is intended for all people, and is perpetual, but 
 ' lies against him only who has diverted the water, and his heirs 
 prohibitorily and for restitution.' " — [Colquhoun, § 2291. 
 
 Construction and Maintenance of Works. 
 
 It was declared to be lawful, however, for riparian proprietors, 
 or those who lived near the bank of a pubhc river, to erect works 
 for the protection of a bank thereof, provided that navigation was 
 in no way impeded thereb}-, and that the river or the other bank 
 was not injured. 
 
 " The praetor does not pretend to prevent all kinds of works 
 inade in rivers or their banks, but only those which could injure 
 navigation or the water-way. Thus the interdict of which we 
 speak here onlv concerns the public rivers, and not the others." — 
 [Justinian D., Lib. 43, Tit. 12, Sec. 1, § 12. 
 
 If damage resulted from any such work, an official examina- 
 tion was made, and, if deemed necessary, the works were removed, 
 or ordered changed, and security for ten years was exacted from 
 their owner or constructor, the amount thereof to be assessed by 
 persons chosen for their competency in such matters. 
 
 There was an interdict, de ripa munienda, concerning the pro- 
 tection of river banks, whereby it was lawful for riparian proprie- 
 tors to construct works for the repair or protection of the bank 
 adjacent to their property. If damage was threatened by such 
 works to the lands of another on the opposite bank or elsewhere, 
 a writ of inquiry was ordered, and a bond of security was exacted 
 for ten years against the results of the possible damaging action, 
 if, in the opinion of experts, it was likely to occur. 
 
 " This interdict being only prohibitory, and not also restitutory, 
 had to be applied for before the work was commenced ; for, after- 
 wards, there was no mode of making it effective, and recourse 
 had then to be had, in case of damage done, to an action for 
 damages." — [Colquhoun, g 2292. 
 
 Diversion of Public Waters. 
 
 Appropriation of the waters of public streams, except for indi- 
 vidual use, was a custom not known to the Roman law, for 
 although irrigation was recognized as a necessity, the rivers were 
 
44 ROMAN IRRIGA TION LE GISLA TION. 
 
 regarded as a public property and as such were guarded in the 
 common interest. Navigable rivers and running waters generally 
 were excluded from private ownership because of the public use 
 to which they were devoted and the common necessity for their 
 use, 
 
 The diversion of waters, whether of floods or low-water flow, 
 from public rivers, reservoirs, or tanks, without the sanction of a 
 special privilege in each case, was prohibited. A decree of the 
 praetor was required to obtain authority to appropriate to private 
 use any material part of a property common to all the people. — 
 [Ortolan, p. 143. 
 
 " Nothing prevents water being taken from a public river, unless 
 the prince or the senate forbids; provided that this water may 
 not be for public use. If the river is either navigable or makes 
 another navigable, this will not be permitted." — [Justinian D., 
 Lib, 43, Tit. 12, Sec. 2. 
 
 " The praetor must not accord the right of drawing from a nav- 
 igable river a quantity of water whose extraction would injure 
 navigation. It would be the same on a river which, not being 
 itself navigable, discharged into another which it rendered navi- 
 gable.".— [Justinian D., Lib. 39, Tit. 3, Sec. 10, § 2. 
 
 " The matter of water, throughout the larger portion of the 
 Roman empire, was a matter of great importance, and it was 
 therefore found necessary to supply a summary remedy by inter- 
 dict to all questions relating to it; hence it was provided in the 
 edict : ' concerning annual water, it is not to be taken by force, 
 fraud, or by the permission of another;' and ' concerning the use 
 of summer water, it is ilot to be taken by force, fraud, or by the 
 permission of another." — [Colquhoun, § 2301. 
 
 "By the civil law, the rivers were public; * * * nor was 
 any obstruction or diversion of a river allowed. See Digest, Lib. 
 43."— [Browne, Vol. 1, p. 171. 
 
 [See, also, extracts from Ortolan and from Colquhoun, given 
 under the second heading preceding this one.] 
 
 It appears that water privileges were of two kinds: First — 
 Those, to individuals, of water for use on individual lands — the 
 terms " on his farm " being used in this connection; and these 
 were accorded by local authority, apparently that of the provin- 
 cial praetors, at one period at least. Second — Those of waters for 
 public use, which autKorizations emanated from the senate or 
 other supreme central power. 
 
 When a joint right to divert was issued to several persons the 
 matter of division of the waters was left to those holding the right. 
 
RIGHT OF WAY FOR WATER. 45 
 
 The remodeling or alteration of the headworks of canals or 
 cuts out from both public and private rivers, without official sanc- 
 tion, was prohibited. 
 
 C/se 0/ Public Waters. 
 
 The use to which water was to be put was not always stipulated 
 in grants, pro^^ded that it was to be used in good faith and not 
 wasted. It was declared that the user of water was liable for 
 damages, " by reason of anything done, dug, sown, delved, or built 
 whereby the river was corrupted." It was declared that water 
 privileges should be " exercised in such a manner as not to dam- 
 age other persons having similar rights." 
 
 All interference with public springs or water sources, lakes, wells, 
 and fish ponds, was prohibited. 
 
 " The waters of a public spring must be divided amongst the 
 owners of the adjacent lands, in proportion to their possessions, 
 unless some owner can prove his right to preference. But no one 
 should be permitted to conduct the water on to his property unless 
 it can be done without injury to the others." — [Justinian D., Lib. 
 8, Tit. 3, Sec. 17. 
 
 "A caput aquse was a head or source of water, where it first 
 begins to appear in whatsoever manner." 
 
 The cleansing of springs or fountains, etc., was permitted, but it 
 was stipulated that no new veins of water were to be opened up. 
 
 Keservoirs might be cleaned and repaired, but no additional 
 waters conducted into them without authority. 
 
 Possession and use of running water, as for the operation of a 
 mill, or in irrigation, by a private individual, from time immemo- 
 rial, gave a prescriptive right to the continued enjoyment of such 
 use. No possessor of water, though having held it from imme- 
 morial time, had the right to use it wastefully to the prejudice of 
 others. 
 
 SECTION III. 
 
 Control of Waters in Private Works. 
 
 Springs on private lands were the property of the land owner, 
 on the principles that to such proprietor belonged all above and 
 all below the land, and all it produced. The right to use spring 
 waters might be acquired by others than the owner, by agree- 
 
46 ROMAN IRRIGATION LEGISLATION. 
 
 ment or prescription; prescription being use, virtually, from time 
 immemorial. 
 
 Spring waters flowing off, joining with other waters and forming 
 brooks on other lands, became common property of all people, but 
 their use was dedicated primarily to the owners of the land along 
 their course; so that such waters, for purposes of diversion, were 
 held by these riparian proprietors, to the extent of their neces- 
 sities. It is necessary to carefully guard against misconception 
 on this point. Water rising out of the ground on a private estate, 
 as being a part of the spring, was the property of the owner of the 
 land; he could do with it as he chose; but when any portion of 
 that water had escaped from the tract where it came to the sur- 
 face, it became a common property of all the people. But so long 
 as it remained in channels on private estates and channels not 
 public from any cause (navigability or other reason), only the 
 owners of the banks of its channel could divert it from its course 
 and use it, except this right should have been acquired as a ser- 
 vitude, as will be explained under the next heading. But even 
 these bank proprietors could not divert such waters, if, in doing 
 so, other proprietors were injured thereby. 
 
 " For the validity of the concession for the right of taking water 
 onto his property, it is necessary to have the consent, not only of 
 those in whose lands the water rises, but, further, of those who 
 have the use of this water, that is to say, of those who have a 
 right of servitude upon this water. * * * And, in general, it 
 is necessary to have the consent of all those who have a right 
 upon the stream or upon the land where the water rises;" — f Jus- 
 tinian D., Lib. 39, Tit. 3, Sec. 8. 
 
 Water drawn from its source, diverted, or drawn from its course, 
 into an artificial and private channel, or when stored in a reser- 
 voir or tank itself in private ownership, became private property. 
 Th,e user might do with it as he chose, provided his use was in 
 good faith — that he did not waste it. 
 
 SECTION IV. 
 
 The Right of 'Way to Conduct Water. 
 
 The rights to draw waters from a private spring or stream by 
 others than its owner, and to conduct waters across lands owned 
 by others, ranked as servitudes. 
 
RIGHT OF WAY FOR WATER. 47 
 
 A preedial servitude under Roman law was a definite right of 
 enjoyment in some particular respect, of one person's property by 
 the owner of other adjoining or neighboring property. The land 
 subject to the right was called prxdium serviens, and the land to 
 which the right was attached was called priedium dominans. 
 Prsedial servitudes related to estates in country or city, and hence 
 were divided into rural and urban. 
 
 Such a servitude could be held only as an appurtenance to land 
 owned, being called prsedial because it could not exist without an 
 estate. And the land subject to the servitude, and that to which 
 the right of enjoyment was attached, had to adjoin each other, or 
 be near to each other. The servitude was attached to the land 
 having the right of its' enjoyment, and was owned with it, and 
 passed to a new owner with the title to it; but was extinguished 
 when the two estates involved, became the property of one person: 
 that person then acting by right of absolute ownership of all the 
 property, and not as owner of one estate and the attached servi- 
 tude on the' other. 
 
 The right of passage across the lands of another, and the right 
 of conducting water through such lands, appear to have been rec- 
 ognized as indispensable privileges from the earliest times of the 
 Roman jurisprudence. The right of way to constriict a canal or 
 other conduit through the property of another, and to lead waters 
 through it, was known as servitus aquse ductus, and was one of the 
 chief rural servitudes. 
 
 "Servitus aquse ductus, the right to convey water by canals, 
 bricked trenches, or pipes through another's land. Some aque- 
 ducts were public, but others were for the use of private farms, to 
 which latter this servitude particularly applies." — [Colquhoun, 
 ,§ 938. 
 
 The right to take water through the property of another in a 
 ditch or other conduit, could be acquired by prescription — use for 
 a long period of years — or by agreement, or, in the case of public 
 works or works of public importance, title to the land necessary 
 could be acquired by expropriation and payment therefor. When 
 acquired as a title, of course the right was complete. When, as 
 a servitude, the right was acquired or accorded for a certain pur- 
 pose only. Thus, he who had a prescriptive right to take any 
 accustomed quantity of water across another's land, could not 
 materially increase that quantity. Having taken the water for 
 
48 ROMAN IRRIGATION LEGISLATION. 
 
 his own use, he could not take water also in the same channel for 
 the use of another. Having taken water for a certain farm, he 
 could not take more than enough for that farm. 
 
 " The quantity of water that could he taken was determined, in 
 the absence of agreement, by custom, not by the wants of the land 
 for which the servitude was granted; but so much could not be 
 taken as to starve the land from which it came. If custom sanc- 
 tioned it, the water might be used for irrigation." — [Hunter, fol- 
 lowing Justinian's Code, p. 245. 
 
 " No one can, without permission of the prince, conduct water 
 across public property." — [Justinian D., Lib. 39, Tit. 3, Sec. 18, § 1. 
 
 A right to draw and use water from another's spring or rivulet 
 might be imposed by agreement or prescription as a servitude 
 thereon. This right was known as aqux haustus and implied also 
 the right of passage as far as necessary to exercise the servitude. 
 
 AUTHORITIES FOR CHAPTER I. 
 
 Colquhoun. — "A Summary of the Roman Law." By Patrick JIac C. de Colqn- 
 honn; 4 vols., London, 1849. See, more particularly, §§ 923, 924, 925, 
 938, 980, 981, 982, 983, 2289, 2290, 2291, 2292, 2300, 2301, 2302. 
 
 Goudsmit. — " The Pandects, a Treatise on the Roman Law." By J. E. Gondsmit, 
 LL.D.; 1 vol., London, 1873. See, more particularly, pp. 113-115, and 
 foot notes. 
 
 Ortolan. — "The Institutes of Justinian." M. Ortolan. Analysis by T. Lambert 
 Mears, M.A., LL.D.; 1 voL, London, 1876. See, more particularly, pp. 
 143, 148, 220, 389. • 
 
 Mackenzie.— "Studies in the Roman Law." By Lord Mackenzie; 1 vol., Edin- 
 burgh, 1876. See pp. 167-170, 177, 184-185. 
 
 BrOT(;7i«.— "Compendious View of the CivU Law." Bv Arthur Browne. LL.D., 
 University of Dublin ; 2 vols., London, 1802. " See vol. 1, pp. 167-173. 
 
 Cumin.— "A Manual of Civil Law." Patrick Cumin, M.A., Baliol College, 
 Oxford; 1 vol., London, 1865. See, particularly, pp. 80-85, 97-99. 
 
 Gaius— "The Commentaries of Gains on the Roman Law." Translated, etc. by 
 r. Tomkins, M.A., D.C.L., and Wm. G. Lemon, LL.B.; 1 vol., London 
 1869. See, particularly, pp. 201-210. 
 
 Justinian.— "Digest or Pandects,"— Of Justinian, Emperor. Translated into 
 French by M. M. Hulot and others; 6 vols., Metz, 1801. See, particu- 
 larly, books 8, 39, 40, titles quoted. 
 
 Hunler.—"The Roman Law in the Order of a Code." By Wm. A. Hunter M.A 
 University College, London ; 1 vol., London, 1876. See, particularly! 
 pp. 168, 169, 211-245. 
 
IREIGATION LEGISLATION AND ADMINISTRATION. 
 
 FRANCE. 
 
PRENOH IREIGATION LEaiSLATION. 
 
 CONTENTS. 
 
 Chapter II.— Eight of Property in and Control of Water-Courses. 
 
 Chapter III.— Water Privileges and the Administration of Navigable and 
 Eaftable Streams. 
 
 Chapter IV.— Water-Eights on, and the Administration of Non-navigable 
 Streams. 
 
 Chapter Y. — Eight of Property in Springs, and Eights to the Use of 
 Spring Waters. 
 
 Chapter VI.— The Eight of Way to Conduct Water and the Eight to 
 Abut a Dam. 
 
 Chapter VII. — Irrigation Enterprise and Organization. 
 
 Chapter VIII.— Covemmental Policy and Irrigation Concessions. 
 
French Ieeigation Legislation. 
 
 INTRODUCTION. 
 
 France is the country of Europe wherein we find irrigation 
 practiced under the greatest variety of physical circumstances 
 and at points widely separated; and where, in consequence, a 
 very great diversity of interests exists and a wide range of prac- 
 tice has grown up. 
 
 The departments of the ^louths-of-the-Rhone and of Vaucluse, 
 Xa southeastern France, where irrigation is most common, are in 
 a region of wide open plains or rolling lands near to the level of 
 the sea, where the temperature is high and rainfall very light, and 
 artificial watering of all crops is an absolute necessity, even on 
 the richest of soils. 
 
 In- the department of the Pyrenees, in southwestern France, a 
 peculiar irrigation of natural meadows and other vegetation is 
 found in the mountain valleys high above the level of the sea, 
 with distinctive meteorological surroundings; while along the 
 base of these mountains irrigation is again found on extensive 
 plains and rolling lands of moderate elevation and medium range 
 of temperature and precipitation. 
 
 In the department of the Vosges in northeastern France is found 
 that peculiar irrigation of meadow lands where water is used 
 almost continuously, notmthstanding heavy rains well distrib- 
 uted throughout the year. 
 
 In northwestern France artificial watering has reclaimed and 
 made productive and populous, vast tracts of land formerly barren 
 and covered with drifting sands or scanty natural pasturage. 
 
 Throughout France market gardening and fruit raising is 
 largely dependent upon irrigation, which is very extensively prac- 
 
52 FRENCH IRRIGA TION LEGISLA TIO-N. 
 
 ticed for these purposes as well as for growing fodder and grazing 
 plants and plants used in manufacturing textile fabrics and dye 
 stuffs; and of late years the application of water on vineyards to 
 drown out or prevent the spread of phylloxera has become quite 
 common and is directly fostered by governmental aid in various 
 ways. 
 
 Besides the very great variety of physical conditions and results 
 surrounding and attending irrigation, we find in Prance an exam- 
 ple of an attempted complete governmental control of irrigation 
 and water-right matters, under a comparatively liberal form of gov- 
 ernment and amidst a free and enlightened people; and, attending 
 this, somewhat complicated relations between the administrative 
 and judicial arms of the government. 
 
 The government of France has of late years specially encour- 
 aged irrigation in a variety of ways, and here we find examples of 
 irrigation enterprise both ancient and modern, and of all grades 
 and forms of organization — from the small private ditch project to 
 the large, costly, and complete canal systems wholly built and 
 managed as public works of the nation. 
 
 Of these interesting and instructive lines for inquiry a great 
 mass of data is available in print; so that of France a more com- 
 plete view may be had of irrigation at this distance from its scene, 
 than of any other European country, and its lessons are perhaps 
 the most instructive. 
 
OHAPTEE IL-FKANOE<"; 
 EIGHT or PROPEETY IN AND OONTEOL OF WATEE-OOIIESES. 
 
 Section I. — (h-iijin ofPruperti/ Rights and Ownership of Streams. 
 Basis of Property Rights in France. 
 Ownership and Control of Navigable Streams. 
 Ownership and Control of Non-navigable Streams 
 
 Section II. — Water Laws and Regulations. 
 
 Moving Causes of Development. 
 Special Kegard for Irrigation. 
 Classification of Water Laws. 
 
 Section HI. — The Admini.itratum. 
 
 Administrative Purpose and Policy. 
 Governmental Organization. 
 The Administrative System. 
 The Bureau of Public Works. 
 The Engineering Department. 
 Administrative Working. 
 Navigation and Piver Guards. 
 
 SECTION I. 
 
 Origin of Property Rights and Ownership of Streams in 
 
 France. 
 
 Basis of Property Rightn.^ 
 
 While under the dominion of Rome all matters pertaining to 
 the streams and waters of the country now called France were 
 subject to governance by Roman law. Long before the close of 
 the Roman rule, the people had the full protection due citizens 
 of Rome, so that at the time of the conquest of Gaul by the Visi- 
 goths (A. D. 470 to 480) there was much land held in individual 
 ownership with the consequent private rights on small streams; 
 but under these Merovingian kings the freehold titles to land 
 
 ' See, particularly, Dalloz, and Malapert ; also, Dumont, and De Passy. 
 
54 FRENCH IRRIGA TION LEGISLA TION. 
 
 disappeared, property was held by a different tenure under the 
 sovereigns, and all right of ownership in water-courses and waters 
 was vested in the rulers themselves. The feudal system then 
 grew up, and the water-courses, from having belonged, according 
 to their class, to the nation and the people or to private indi- 
 viduals, under Roman law, and then exclusively to the kings, 
 under Merovingian rule, became dependencies upon the fiefs of 
 the feudal counts, who assumed almost complete ownership of 
 and control over them (9th to 12th centuries). 
 * Actuated by desire for the revenue to be' had from tolls and 
 subsidies for navigation and ferry or bridge permits, for several 
 centuries a struggle was now ever present between these nobles 
 and the kings, for the control of the water-courses; and the con- 
 flict did not cease until the government had become centralized 
 and feudalism had been overthrown during the fourteenth cen- 
 tury. "All streams and waters belong to the king by right of 
 kingship " was the principle proclaimed by the sovereigns and 
 their nearer adherents. But in contending for this principle 
 against the nobles and provincial states, the kings in fact gave 
 up control of non-navigable streams — those upon which tolls could 
 not be collected for ferriage and navigation permits — to the bank- 
 land owners. 
 
 In the fourteenth century the study of the Roman law was 
 actively revived in France, and the time being about coincident 
 with the decline of feudalism, and the Roman law, recognizing 
 ownership of streams not of public importance — that is non-navi- 
 gable streams — by the riparian proprietors, this rule apparehtly 
 thus became incorporated into the law of France. The kings 
 asserted their ownership of all na^dgable streams and those 
 which were floatable for rafts and large timbers, extended the 
 application of the rule as far as there was then any justification 
 for it, and left the control and virtual ownership of non-navigable 
 and non-raftable streams to the bank owners, but really without 
 any formal laws or declarations upon which was grounded their 
 claim of title to them. ' 
 
 The public possessions of the kings, held for the benefit of the 
 nation, became in course of time known as the " public domain," 
 and in 1566 was issued the edict of Moulines, which declared the 
 imprescriptibility and inalienability of this public domain. This 
 policy of holding fast to all the nation's property, though often 
 
O WNERSHIP OF STREAMS. 55 
 
 attacked, is still adhered to by the government, so that water- 
 courses and waters, once declared navigable and raftable can 
 never be alienated from the public domain, and become in any 
 sense private property. 
 
 Ownership and Control of Navigable Streaim} 
 
 Navigability and floatability for rafts and large timbers became 
 the test for streams belonging to the king, but any stream deemed 
 of public importance might have been declared thus navigable 
 or raftable, and made so in sufficient degree to justify its incor- 
 poration into the public domain. 
 
 The changes in the form of government, occurring a little less 
 than a century ago, appear to have resulted in no completed action 
 1 aflfecting the laws or customs respecting waters until 1803-4, when 
 the Code Napoleon, the present civil code of the country, was pro- 
 mulgated. AMth respect to water-courses and waters it makes the 
 following distinct announcement, which is its only direct state- 
 ment relating to the ownership of water-courses or waters: 
 
 "Article 538. Highways, roads and streets at the national charge, 
 rivers and streams which will carry floats, shores, ebb and flow of 
 sea," ports, harbors, roadsteads, and generally all portions of the 
 national territory, which are not susceptible of private proprietor- 
 ship, are considered as dependencies on the public domain." 
 
 A royal ordinance of 1835 enumerated all the streams and parts 
 of streams in Prance, deemed navigable or raftable, and hence 
 claimed as of the public domain, and other ordinances, etc., of 
 later dates have added to the list. The sovereign authority to 
 declare streams navigable, and thereby make them part of the 
 public domain, has not been disputed either in the courts or before 
 the council of state, but riparian proprietors who have been dis- 
 possessed of their right to water for irrigation, by the exercise of 
 this power, have claimed, and been allowed by the courts, in a 
 manner prescribed by law, indemnities for actual damage caused 
 them. 
 
 Furthermore, although only certain streams and parts of 
 
 ' See, particularly, Dumont, pp. 1-14, 135-14(5; Dalloz, Vol. XIX, p. 337; Prou- 
 dhon, § 81fi ; also, De Passy. 
 
 '' These are the words of Richard's translation of "In is ct reUiisde la mer;" hut 
 the phrase should be rendered "the land left uncovered by and recovered from 
 the sea" — namely, the land newlv made by the sea. — [DaUoz, A'ol. XXXVIII, 
 p. 208. 
 
56 FRENCH IRRIGA TION LEGISLA TION. 
 
 streams, embracing probably all that really are na^dgable, or 
 that can be made so by a small amount of. work, have been thus 
 added to the public domain, the administration, in council of 
 state, may at any time declare other streams or parts of streams 
 navigable or raftable, and thus make them public property, after- 
 wards paying the riparian proprietors for whatever actual damage 
 they may suffer, as may be adjudged by the courts. The state, 
 owning these water-courses, is, of course, owner of the waters form- 
 ing them, and these, with the beds, under the edict of 1566, are 
 inalienable from the public domain; their ttsf only can be granted, 
 as will hereafter be seen.' 
 
 Ownership and Control of Streams not Navigable nor Raftable? 
 
 The ownership of the beds and waters of streams neither navi- 
 gable nor floatable for timber, and not claimed as such by the 
 government, is a point which has been much disputed. It is 
 Stated by some French writers of forty years ago that the beds of 
 such streams belong to the riparian proprietors, and they imply 
 that the waters are a sort of property held in common by these 
 proprietors. 
 
 But all authoritative writers now hold that '' according to the 
 terms of article 714, civil code, water-courses not navigable nor 
 raftable are common property, /. e., enter into the class of things 
 which do not belong to any one." — [De Passy, p. 297. 
 
 This article 714 reads as follows : '' There are things which 
 belong to no one, and the use whereof is common to all. The 
 laws of police regulate the manner of enjoying such things." 
 But the preceding article, 713, says that "Property which has no 
 owner belongs to the nation." Taking these two articles together, 
 if the ownership of non-navigable and non-raftable water-courses 
 cannot be fixed elsewhere, then these streams belong to the nation, 
 just as well as do those which have been made part of the public 
 domain by declaration of navigability, under article 538. 
 
 The facts are, that riparian proprietors claim the ownership of 
 the channel beds to the center line, each in front of his property, 
 and that the courts allow the claim when the beds are perma- 
 nently laid dry from any cause; that alluvial deposits along their 
 
 1 De Pussy, p. 29' 
 '^ See, pii 
 79, ct aeq, ; 
 Napoleon. 
 
 '^ See, piirtiuularly, Duiuont, H. II, Chs. Ill and V; De Passy Ch I and p 
 279, etKeq.,- De BufFon. Vol. II, Sec. I ; Dalloz, Vol. XIX, pp. 379^384; also, Code 
 
O WNERSHIP OF STREAMS. 57 
 
 banks accrue to the benefit of the land owner adjacent to whose 
 field they form; that islands forming in' the channels, belong to 
 the adjacent bank owners, in proportion on each side to local cir- 
 cmnstances, and that prior to the passage of a law specially to the 
 point in 1847, the owner of one bank could not, even after having 
 secured administrative authority to build a dam in the stream in 
 front of his property, obtain the right to carry it past the center of 
 the stream, or connect with the opposite bank, without the consent 
 •of the owner of that bank. 
 
 We see, therefore, that until very recent years the beds of 
 streams of this class belonged to and were under the control of 
 the riparian proprietors, except, as will be seen hereafter, in mat- 
 ters wherein the govemmtent had exercised a supervision of works 
 and channels to insure a free flow for flood waters. 
 
 / 
 Riparian Claims to the Waters} 
 
 The waters of non-navigable and non-raftable streams were 
 formerly also claimed as the private property of the riparian 
 proprietors. Circumstances of their origin and division, and the 
 necessarily common control of the streams, upset this theory, 
 however, long before the .passage of the Code Napoleon. They 
 were next claimed by these bank-land owners, as a sort of prop- 
 erty held in common by them as riparian proprietors, for the 
 exclusive benefit of their lands and industries. 
 
 On the other hand, it was and still is claimed by the owners 
 of lands not bordering the streams, that these waters belong to 
 the whole people of France, or are held by the nation for the 
 benefit of the whole people; and while the riparian proprietors 
 are given, by the Napoleonic code, a right to use them in irriga- 
 tion and otherwise, they are not given an exclusive right, but that 
 the government, as the guardian of the waters, can, as in the 
 case of the waters of navigable streams it does, grant concessions 
 for the use of some part of them on lands not riparian, so long as 
 rights already accrued by use be not unduly or injuriously limited 
 ■or their exercise inconvenienced by such action. 
 
 Replying to this, the riparian proprietors now say, that, if the 
 waters belong to the whole people of France or to the nation, 
 they, the bank owners, have, under the code, a special and com- 
 
 ^ See, particularly, Dumont, Dalloz, and De Passy; also, De Buffon; as last 
 cited. 
 
58 FRENCH IRRIGA TION LEGISLA TION. 
 
 plete servitude on all such waters, which servitude, or right to 
 use, is continuous and not forfeitable by failure on their part to 
 avail themselves of it at any time, or for any length of time, 
 except as between themselves, as will hereafter be shown. 
 
 The question of the ownership of these waters, and that of the 
 nature of the right which riparian proprietors have to use them, 
 are points of several centuries of litigation in France, for these 
 questions were in dispute long before the civil code was promul- 
 gated, and it only changed the aspect of affairs and stirred liti- 
 gation up again on a slightly different basis, with many fine 
 points of law brought to the front. 
 
 The fact of the ownership of the waters of non-navigable and 
 non-raftable streams by the nation, as representing the whole 
 people, is now pretty well settled, and the tendency of decisions 
 and administration rulings, is towards a declaration of owner- 
 ship, by the nation, of the beds also, so long as occupied by the 
 waters — or, so long as they are courses for public waters. 
 
 Starting several centuries ago, with almost complete ownership 
 and control of the waters and channels of streams not navigable 
 nor raftable, the riparian land owners have since been restricted 
 in their rights, from time to tirne, and yye now find them without 
 any recognized claim of ownership in the waters, and only the 
 semblance of ownership in the channel beds until after these 
 shall have been laid dry; but with a preferred privilege to the use 
 of the waters, as we will hereafter see. 
 
 SECTION II. 
 
 Water Laws and Regulations. 
 
 Moving Causes of Development} 
 
 The water laws of France have their roots in the groundwork 
 of principles governing the right of property in water-courses, 
 which have already been spoken of; for the application of these 
 principles, molded by the temper and the wisdom of the rulers, 
 and mellowed by the customs of the people, has brought out the 
 laws and administrative system which we now find. For centu- 
 
 1 8ee, particularly. Malapert; also, De Buffon, and maiiv papers, etc., in the 
 Annates des Fonts et Chaussies, and Dalloz, as last cited. 
 
WATER LAWS AND REGULATIONS. 59 
 
 ries agriculture has been the favorite pursuit of the French, and 
 the rulers of the country have been alive to the importance of 
 fostering it; while manufacturing, largely dependent on agricult- 
 ure, has been its branch of industry next in importance. 
 
 Agriculture in many quarters of Prance has necessitated the 
 application of water in irrigation; manufacturing has in a high 
 degree been built up by the application of water for power, and 
 has developed a necessity for the use of water in large quantities 
 in very many industrial processes. 
 
 The necessity for cheap internal transportation facilities early 
 developed a policy of river improvement and canal construction', 
 so that, commencing in this way as far back as the tenth century, 
 France now has a network of navigable waterways extending 
 over almost the entire valley portion of her territory. 
 
 Her drainage systems and topography are such that large areas 
 of country in the river valleys have been subject to occasional in- 
 undations, resulting in loss of property and in unsanitary condi- 
 tions, producing fever epidemics, thus pressing upon the attention 
 of the people and the government the necessity for improvement 
 of arterial drainage lines, the embanking of lands, and the sani- 
 tary drainage of lands embanked and those otherwise subject to 
 receiving too much water. 
 
 These things all combined, have brought about the making of 
 laws, the growth of customs, and the promulgation of regulative 
 decrees relating to the improvement and guarding of water-courses 
 and waters, and their use in every way and in all interests. 
 
 Special Regard for Irrigation} 
 
 Agriculture being a leading interest, and the country ever alive 
 to its importance, although we find much complaint on the part 
 of French hydraulic-agricultural writers, that more has not been 
 done by government in behalf of irrigation, drainage, and the 
 like, and although undoubtedly more could have been done to 
 great advantage, in the way of systematizing matters as well as in 
 the construction of works, yet, considering the political troubles 
 which have for long periods of time disturbed Prance, on reading 
 the accounts of and laws relating to her hydraulic agricultm-e, 
 we, who may judge without prejudice, will be led to believe that 
 the French rulers and governments generally have striven to en- 
 
 ' See, Dumont, and De BufFon. 
 
60 FRENCH IRRIGA TION LE GISLA TION. 
 
 courage and develop irrigation, drainage, and reclamation, and, 
 in fact, have accomplislied much for them. We find irrigation 
 constantly favored in the laws, in preference to manufacturing 
 and many other uses of water: domestic necessities and naviga- 
 tion, alone, ranking it in the scale, and the first of these two uses 
 being the only one decidedly preferred to it in the administration 
 of the laws. 
 
 The French laws respecting irrigation are about as liberal as 
 they could be made under the circumstances surrounding their 
 development or formation. And it is a significant fact that, 
 although framed for the most part in the midst of monarchial 
 surroundings, amidst all the tearing to pieces which the institu- 
 tions of France have repeatedly had by the liberalizing spirit that 
 has from time to time prevailed, and even now that the country 
 for a decade has had a republican form of government, the old 
 administrative ordinances, the old administrative system, still 
 prevail almost unchanged, except in details and developments 
 that in no way affect their leading principles. 
 
 Classification of Water Laws} 
 
 The earlier laws of those which now exist are the edicts of 
 kings, from the sixteenth to the present century. Then come, in 
 addition to similar promulgations, the decrees of ministerial offi- 
 cers, enactments of legislative assemblies, opinions of superior 
 administrative authorities, as well as decisions of courts. 
 
 In fact, besides the statutory law, which is king-made law and 
 that emanating from legislative officers or bodies, the water laws of 
 France comprise two branches of what answers closely to our Com- 
 mon law, in the method of their development — namely: through 
 the interpretation of law and the establishing of precedent by 
 decisions. These branches of the water laws have grown, respect- 
 ively, from the decisions of courts, and from the decisions or rul- 
 ings of superior officers or bodies of the advisory and executive 
 branches of the administration. 
 
 Although on several occasions within the past century, and 
 notably within the last ten years, efforts have been made to bring 
 into form and within a code of small compass the water laws and 
 regulations of France, there is still no general and comprehensive 
 
 ' See, Duinont, Dc Pns.sy, and Lex Annales des Fonts et Chaussfex, Vols. Laws 
 Jind Derret's. 
 
THE ADMINISTRATIVE SYSTEM. 61 
 
 law or code on the subject, but the system is made vip of number- 
 less edicts, ordinances, acts, decrees, rulings, decisions, instruc- 
 tions, and circulars, which form a body of law and regulative rules 
 quite difficult to trace through in its connections and bearings. 
 
 SECTION III. 
 The Administration.' 
 
 Water-courses and waters in France have been from an early 
 period in the modern organized government succeeding the feudal 
 system, generally subjected, not only to laws made by the law- 
 making power of the land and interpreted by the courts, and to 
 regulations made by the executive branch of government, but also 
 to an active and constant supervision by the officers of an organi- 
 zation within this executive branch. This arm of the govern- 
 ment is called the administration. Its regulative measures appear 
 under the titles of decrees, instructions, regulations, administrative 
 laws, etc. Its purpose, according to the French water-law writers, 
 is to supply the deficiency which must ever exist in the applica- 
 tion of general laws and principles to the management of the 
 affairs of water-courses through the medium of courts: a defi- 
 ciency which makes itself apparent in the impossibility of fully 
 utilizing streams and waters under any system of primal princi- 
 ples rigidly adhered to under all circumstances throughout a 
 country. 
 
 From the difference in the nature of property rights on streams 
 of the two classes — those navigable or raftable and those not so — 
 and from the great difference in the interests to be conserved 
 upon them, result the very essential differences in the adminis- 
 trative policy and measures to which they are subjected. 
 
 On non-navigable and non-raftable streams the administration, 
 in theory, interferes with private operations conducted by those 
 who as bank owners have rights on the streams under. the 
 ancient usages and the civil code, primarily, to regulate works 
 in the channels or on the banks, with the view of preserving the 
 channels in the interest of the public, and as far as possible 
 assuring or developing a free passage' for flood waters without 
 
 ' See, particularly, De Passy ; also, Dumont, and De BuflFon. 
 
62 FRENCH IRRIGA TION LEGISLA TION. 
 
 augmenting danger of floods; and, secondarily, with the view of 
 preserving the interests of navigation on the main stream below. 
 On the water-courses of the public domain — those declared 
 navigable or raftable — the policy of the government is actuated, 
 primarily, by a solicitude for the interests of navigation, and then 
 by an almost equal interest in promoting the economical and full 
 use of the waters in agriculture, manufacturing, and industrial 
 pursuits generally, and, finally, none the less, by a realization of 
 the pressing necessity for promoting the arterial drainage of the 
 country, in order that great floods be prevented, that valuable 
 lands be reclaimed to rich taxable districts, and that insalubrious 
 swamps be reclaimed to healthful neighborhoods. 
 
 Administrative Purpose and Policy. 
 
 On non-navigable and non-raftable water-courses the adminis- 
 tration is not authorized to interfere between the owners of works 
 already constructed and those proposed or newly constructed. If 
 a proprietor has lands bordering on the stream, the administra- 
 tion is bound to presume that he has the right to water from it, 
 and it can only interfere in an authoritative way with his project, 
 to the extent of regulating his works, with the views set forth in 
 the second paragraph above. Further than this, in these cases, 
 the administrative engineers can advise the parties at interest, 
 and bring before them all the facts as to measure of water supply, 
 and extent of use, and nature of existing irrigations, or other 
 data from which to judge of the equities in each case; but if on 
 such showings, amicable agreements can not be arrived at, the 
 administration has no alternative but to sanction the construc- 
 tion of any new work proposed — provided the work itself is unob- 
 jectionable — and thus leave the courts to decide, on the showing 
 of facts, whether or not the new diverter is entitled to water. 
 
 On navigable and raftable streams, the administration is in- 
 vested with full powers, not only to regulate works of all kinds, 
 and much more in detail than on non-navigable and non-raftable 
 streams, but, also, to consider all questions relating to water privi- 
 leges, to issue and restrict them at will, under the laws. 
 
 In the case of both classes of streams, the administrative 
 engineers are charged with the duty of collecting and arranging 
 the data respecting the supply and use of waters, so necessary in 
 an equitable and business-like adjustment of the many questions 
 
THE ADMINISTRATIVE SYSTEM. 63 
 
 which arise between the various parties immediately at interest, 
 and between these and the interest of the pubhc, and also so 
 essential to the study of eoonomy and efficiency in use of water, 
 and the full development of the industries dependent on it. 
 
 Thus, the administration on non-navigable streams regulates 
 only the works, and the courts adjudge the rights, while on naviga- 
 ble streams the administration adjusts and decides all questions, 
 and issues all privileges, and, finally, on all classes of streams, it 
 obt-ains the data from which to judge of questions which come 
 up. This much for the scope of power, policy, and duties of the 
 administration as affected by the classitication of streams and 
 interests at stake. 
 
 GovcmmcnX Organization} 
 
 France has an area of "204,091 square miles — a territory only 
 about one eighth larger than the State of California. The country 
 is di\-ided into 87 departments, these into 362 arrondissements, or 
 sub-departments, these into 2.S63 cantons, or judicial districts, 
 and these, finally, into 36,056 communes, or municipalities. 
 
 France is a republic, but very many of her institutions are mon- 
 archial by origin and in spirit. The legislative power is vested in 
 two houses, or chambers — the chamber of deputies, and the sen- 
 ate; and the executive authority, in a president. The chamber 
 of deputies is elected by universal suffrage, each arrondissement 
 being represented by one deputy, or by more if its population 
 exceeds 100.000 souls. The senate is composed of 300 members, 
 of whom one fourth are elected by the senate itself, for life, and 
 three foiuths are elected for nine years by electoral colleges formed 
 in every department and commune. 
 
 The president is elected by the senate and the chamber, sit- 
 ting conjointly, for seven years. The president promulgates the 
 laws voted by the chamber; and he appoints his ministers, who 
 are responsible to the chambers for the conduct of their several 
 bureaus. A council of state, presided over by the minister of jus- 
 tice, and consisting of thirty-seven councilors and twenty-four mas- 
 ters of requests, nominated by the president, and thirty auditors, 
 nominated concurrently mth the senate, advises on laws referred 
 to it by the chambers or by the ministers, and on all matters sub- 
 mitted b}^ the president, performing in this way certain duties as 
 the chief advisory and regulative body to the bureau which has 
 
 See, particularly. Rectus, Vol. II, Ch. XV; also, Malapert, Ch. XXI. 
 
64 FRENCH IRRIGA TION LE GISLA TION. 
 
 to do with the administration of the affairs of water-courses and 
 waters. 
 
 Each department has its general council, the members of which 
 (usually one for each canton) are elected by universal suffrage, 
 for six years. These councils meet annually to discuss the depart- 
 ment budget and to act as advisers of the prefect. The prefect is 
 appointed by the president, on nomination by the minister of the 
 interior. He is virtually the governor of the department, and his 
 powers are extensive. Each arrondissement, or sub-department, 
 has its sub-prefect, and a council elected by universal suffrage, 
 to consider and regulate purely local matters. The cantons are 
 merely judicial and electoral districts. Bach commune has a 
 municipal! council of from twelve to eighty members, elected by 
 universal suffrage. The mayor of the commune is appointed by 
 government, but he must be a member of the elected municipal 
 council. He represents the state as well as the commune. 
 
 The Administrative System.^ 
 
 As will be seen, the mayors and municipal councils, the sub- 
 prefects and sub-prefectorial councils, the prefects and the prefec- 
 torial or general councils of the departments, as well as the council 
 of state of the government, are all connected with, and in fact 
 together, make up the administrative department, which, with 
 the engineering corps and bureau of public works, control the 
 affairs of water-courses and inland waters of the country. 
 
 The mayors and the prefects are the principal administrative 
 units in this administrative system, and to give an idea of the 
 scope of their territorial authority, it may be remarked that the 
 average commune is 5.5 square miles, and the average depart- 
 ment is 2,345 square miles in area. This makes the jurisdiction 
 of a mayor cover territory less than one sixth of a township of 
 our land survey system, and shows the average scope of country 
 presided over by prefects to be about the size of Colusa, or one 
 half that of Los Angeles county, in this state. 
 
 The Bureau of Public Workit.'' 
 
 The construction and management of all public works, except 
 those specially and fittingly confided to the minister of war, of the 
 
 ' See, De Pussy, Malapert, and Recihis. 
 
 '' See, particularly, Malapert, Ch. XXI, and elsewhere; also, De Passy. 
 
THE ADMINISTRATIVE SYSTEM. 65 
 
 navy, of education, of posts and telegraphs, and some others, is 
 delegated to the secretary of state or minister of public works. 
 Amongst the duties confided to this authority are all relating to 
 the hydraulic service, to ports, harbors, coasts, rivers, streams, 
 canals, torrents, irrigation, drainage, reclamation, and the like. 
 The care of all waters and water-courses, whether of the public 
 domain or not, their control, and the control of the acts of indi- 
 viduals on their banks, is regarded as of public concern, and the 
 administration has to do with the affairs of all streams, in a 
 greater or less degree, as will hereafter be seen. 
 
 The minister of public works is the chief executive officer of 
 government in this branch of the organization. He acts under 
 authority of laws of the country, and in the light of 6pinions or 
 interpretations of old laws and customs, by the council of state. 
 And he himself makes rulings and regulations in conformity with 
 principles thus laid down, in his circulars and instructions to sub- 
 ordinates. 
 
 For this piurpose of administration, the prefects, each in his 
 department, are the chief local executive officers under the min- 
 ister of public works. In the management of the affairs of the 
 streams, in all, except the planning and superintendence of work, 
 and the experting of all questions of a technical nature connected 
 with the subject, the prefects act under authority, and in accord- 
 ance with the ministerial circulars and instructions, which com- 
 municate to them the results of, or the texts of, the advices of the 
 council of state, when such there be. 
 
 Thus, all applications for permits or authorizations, or executive 
 rulings, or enforcement of regulations, first come to the prefects, 
 and they, if endowed with the authority suited to the case, act on 
 it, or refer it with comments to the minister of public works if not 
 competent to decide themselves. 
 
 The Engineering Department} 
 
 In the ministry of public works is a corps of civil engineers, 
 known, from long ago, for reasons not necessary here to explain, 
 as the department of Bridges and Highways. This corps is a 
 very extensive organization of men scientifically and practically 
 educated at a government school for the purpose. Their mission 
 
 ' See, particularly, Malapert, Ch. XXI, and the heading "Engineers" in pre- 
 ceding chapters; also, De Passy, supplement. 
 
 5' 
 
6(j FRENCH IRRIGA TION LEGISLA TION. 
 
 is civil engineering, primarily, and not military engineering or 
 the art of war. The organization is somewhat that of the officers 
 of an army, hut promotion is not altogether by seniority, for com- 
 petency and special fitness have much to do with this. From 
 this corps, engineers are detached to other service — ^to the depart- 
 ment of war, to that of agriculture, to that of posts and tele- 
 graphs, to the service of cities, and on special works, etc. 
 
 The greater portion of the engineers of bridges and highways 
 are in the immediate service of the ministry, or bureau, of public 
 works, in the construction or management of public works, or the 
 supervision of private works or operations affecting the public 
 domain, or the common welfare of all the people. While others 
 of these engineers are in the service of the departments, and 
 more directly charged with advising the prefects and prefectorial 
 councils. Wherever they go, however, their plans of works pro- 
 posed > are subject to revision by the central commissions of the 
 corps, and all technical matters of great importance are referred 
 to the engineer-in-chief, to be by him laid before the proper revis- 
 ing board. 
 
 Besides the engineers, there is a corps of " conductors," who 
 are the superintendents of works. These men, besides a certain 
 theoretical training, have a practical education as constructors — 
 stone and brick masons, carpenters, and builders of all kinds — 
 and each one is a master in certain branches of practical con- 
 struction. They report to the engineers, and carry out their 
 plans and specifications. The conductors are graded, and have 
 various ranks in their corps; and after a certain service become 
 also advisers and inspectors of works. 
 
 The engineers are the executive officers of the minister of pub- 
 lic works, in carrying out all works of a distinctively public 
 character, and also in the preliminary examinations for, super- 
 vision of, and reporting on all private or other works afiecting 
 the public domain or the common good. And they are the 
 advisers of the prefects in the regulation of matters pertaining 
 to waters and water-courses, as well as other things. The man- 
 agement of works of navigation, such as locks, dams, etc., on 
 canalized or improved rivers, and of public canals of navigation, 
 and of works for the diversion of waters from streams, is intrusted 
 to their charge. In a measure they have a co-jurisdiction with 
 the prefects in some matters of police of streams, and the line of 
 
THE ADMINISTRATIVE SYSTEM. 67 
 
 duty of each is the subject of careful designation by ministerial 
 decrees and instructions. Of the duty and authority of engineers 
 and prefects more will be seen in the chapters which follow. 
 
 Administrative Working} 
 
 Briefly reviewing that which has been said applicable under 
 this heading, we see that the administration of waters and water- 
 courses is confided to the minister of public works and his subor- 
 dinates of the engineering and executive corps in the hydraulic 
 service, and to the prefects of the departments, who, acting inde- 
 pendently in some things, are still wholly dependent on the min- 
 ister in others. Thus, in matters pertaining to the construction of 
 any particular or important work, or the granting of any water 
 privilege on navigable streams, the prefects can only act provi- 
 sionally, and ever}' ease has to be considered by the minister of 
 public works, and advised upon by the council of state. In mat- 
 ters of simply carrjdng out resolutions and the minor works of 
 repairs or construction on this class of streams, the prefects have 
 authority to act without reference to the central administration, 
 but an appeal may always be taken by parties at interest to the 
 minister or council of state, from an order or ruling of a i^refect. 
 
 On streams not of the public domain, prefects have authority 
 to grant privileges for the construction of all works, when they 
 are duly advised by the engineers that no harm will be done by 
 them and that the plans are commensurate with the purpose in 
 view. And so, on this class of streams, the prefects are intrusted 
 with the administration of all regulations, and the making of 
 regulations for matters of detail in carrying out the decrees of the 
 central administration and the decisions of the courts. The pre- 
 fects of the departments, in performing executive duties, act 
 through the sub-prefects of the arrondissements composing their 
 departments, these through the mayors of the communes com- 
 posing their arrondissements, and these through the river-guards 
 and rural police of the country. 
 
 The government civil engineers form almost a distinct line of 
 executive officers, as directly accountable to the central adminis- 
 tration as are the prefects. Those who are assigned to duty as 
 departmental engineers are, of course, annexed, as it were, to the 
 
 ' See, particularly, De Passy ; also, Dumont, and Malapert. 
 
68 FRENCH IRRIGA TION LEG IS LA TLON. 
 
 staff of the prefect in each instance, but those not thus assigned 
 are in no way accountable to the i^refects, except as they may be 
 placed to advise on works or measures with which the prefects 
 may have to do. The navigable streams and navigation canals 
 of the country are under the supervision of engineers, the duty 
 being apportioned so that one engineer is in general charge of a 
 whole work or system, and all others connected therewith are 
 accountable to him. The engineers on this duty act through 
 their local assistants, and these through the guards of navigation, 
 hereafter to be spoken of. The departmental engineers have to 
 do more particularly with the non-navigable streams, and are in 
 this line of duty the advisers of the prefects, and, in the absence 
 of engineers specially in charge of any navigable stream, the 
 departmental engineer is the adviser. 
 
 Thus, on navigable streams, in matters of management and 
 maintenance, the engineers are really the executive officers and 
 the advisers of the central administration, while on non-navigable 
 streams the prefects are the executive officers, and the depart- 
 mental engineers advise them. In matters of permits and privi- 
 leges, the prefects are the executive officers on both classes of 
 streams, and the engineers the advisers. In matters of construc- 
 tion, the engineers have exclusive control on navigable streams, 
 and are the supervisory officers of private works on non-navigable 
 
 streams. 
 
 Navigation and River-Guards? 
 
 It is now the intention of the government, that all water-courses 
 of public importance in France, whether navagable or raftable 
 (and, consequently, of the public domain) or not floatable even for 
 rafts, and timber, but which (by reason of the use of their waters 
 in irrigation, or for power, industrial, municipal, or other pur- 
 poses, or by reason of the existence of levees on their banks, or of 
 their channels being outfall drains for populous districts, or by 
 reason of their being tributaries to navigable streams where water 
 supply is scarce) are of public utility, or liable to receive injury to 
 their channels or banks, or to do injury by the excess or failure 
 of their waters, shall be subject to the supervising care of special 
 agents of the government, called guards. 
 
 On navigable streams these agents are called " guards of navi- 
 
 ' .Sec, particularly, De Passy, and De Buffon, pp. 98-108, and elsewhere; also. 
 Malapert. 
 
THE ADMINISTRATIVE SYSTEM. 69 
 
 gation;" are appointed by the administrative officers in general 
 charge of the construction, maintenance, and operation of the 
 works of navigation, under the direction of tlie minister of public 
 works, and are paid by government. The " guards of navigation" 
 have charge of the operation of all locks, movable dams, sluices, 
 and other structures in the river channels, and of all gates, sluices, 
 or other openings for diverting water through the banks. They in 
 fact perform the duties on rivers, similar to those performed by a 
 superintendent and his assistants on a canal in his charge. At 
 the principal structures, such as locks and movable dams, guards 
 are of necessity stationed all the time, while others are assigned to 
 beats on the river along the intermediate reaches. 
 
 Every river being subject to general regulations laid down by 
 the central administration, and to special regulations covering 
 details and laid down by the local administrative and engineer- 
 ing authorities, it is the province of the guards to see that these 
 are observed and not infringed upon; to see that all who have 
 water pri\-ileges get their dues according to the schedule, and are 
 not curtailed in their enjoyment of them by the greed, careless- 
 ness, or ill-feeling of others; to see that neither by neglect nor 
 criminal act, is anjrthing done to injure the bed, channel, or banks 
 of the streams; to observe all works connected with navigation or 
 affecting the stream in any way injuriously, and to report their 
 condition; to prevent the deposit of filth, rubbish, or dirt in the 
 channel or on its banks; to keep a record of the flow of the waters, 
 and of their height at different points ; and also to render assist- 
 ance, in cases of necessity, to river-craft crews or others endangered 
 or embarrassed from any cause. 
 
 Some rivers are specially under the charge of engineers detailed 
 from the government civil engineering corps for the duty ; and in 
 these cases the guards report to them and receive instruction from 
 them. In cases where the navigation is not thus exclusively 
 under engineering control, the guards are subordinated to some 
 other governmental functionary having these interests in charge, 
 perhaps, in the several localities. 
 
 River Guards — Their Duties and Compensation} 
 
 On non-navigable streams, the guards are called " river-guards." 
 They are appointed by the prefect of the province, generally on 
 
 ' References, same as those for preceding heading. 
 
70 FRENCH IRRJGA TION LEGISLA TION. 
 
 the recommendation of the riparian owners, and others interested 
 on the stream, and are paid by the prefect, with moneys collected 
 from the parties at interest on the stream, according to circum- 
 stances. 
 
 On streams where waters are used largely for power purposes, 
 and which are not embanked, or, from other cause, threaten ripa- 
 rian lands, the tax for the salary of the river-guards is le\Tied 
 entirely on the manufacturing interest using the water, or, if at 
 all, in a small degree only, on the owners of riparian lands. 
 While on streams embanked, and threatening overflow of adja- 
 cent lands, and on streams used as drains for riparian properties 
 to a considerable extent, in the absence of manufacturing inter- 
 ests, the salaries of the guards are assessed wholly on the riparian 
 proprietors'. 
 
 Still again, on streams whose waters are used in irrigation, to 
 the exclusion of other uses, and where there is no special reason, 
 as first above mentioned, for calling on riparian proprietors not 
 thus using water, the salaries of the guards are assessed chiefly 
 upon those who divert the water, and the riparian proprietors not 
 diverting water, pay but a small portion. These rulings are the 
 outgrowth of custom, and while they are very generally accepted 
 without opposition, they have met, and still do meet, in some 
 cases and localities, with very strong opposition from those who 
 have to pay. 
 
 On these non-navigable nor raftable streams, the river-guard is 
 a supervisor of maintenance of works, and a police inspector to 
 report the condition of the streams, banks, and channels, and to 
 report all acts in contravention of the general laws and special 
 regulations applicable to the river, or part of river, placed in his 
 charge. He is assigned a regular beat, over which he has to go 
 at stated intervals, examining everything pertinent to his charge, 
 keeping a minutely detailed journal of his operations, and report- 
 ing to officers, designated in each case, at different parts of his 
 district. The following is a formula for duty for river-guards used 
 in the regulations in the department of Seinr-rt-Oise: 
 
 "A river-guard is specially charged with seeing that the present 
 regulation is observed ; that the execution of the works of cleans- 
 ing the channels, remodeling and protecting the banks, cutting 
 away undergrowth where harmful, mowing the tall grass or rushes 
 on the banks, etc., are carried out according to the orders of the 
 syndicate and of the engineer of the district, and under the sur- 
 
THE ADMINISTRATIVE SYSTEM. 7j 
 
 veillanoe of the mayors of the communes traversed by the water- 
 course that is the subject of this regulation. 
 
 " The river-guard must report all infringements whatsoever of 
 regulations committed by manufacturers, riparian owners, or any 
 other person. He must visit once a week all parts of the river 
 intrusted to his superintendence, and prove the fulfillment of his 
 duty by the signature of the local officers in the various parts of 
 his district, to whom he reports. 
 
 " He must keep a daily register numbered and indexed by some 
 proper superior officer, in which he inscribes every day a report of 
 all the facts that come to his knowledge on his tour of inspection, 
 and particularly all infringements of regulations, or offenses that 
 come under his observation. 
 
 '■ Once a week at least he reports to the chief officer of the dis- 
 trict, to whom he is accountable, or to some other specially 
 delegated authority, to give a verbal account of all that he has 
 seen, and to have his register examined and countersigned." — [De 
 Buffon, Vol. II, p. 102. 
 
 The Xcccmty for River-Guards^ 
 
 The necessity for river-guards is generally dwelt upon by 
 writers on the subject of water-courses in France. De Bufifon, 
 perhaps the most authoritative author on the general subject of 
 hydraulic agricultui-e and the management of water-courses in 
 various countries, who has ever written, says on this point: 
 
 " Every day experience shows that the operations necessary 
 for the preservation of stream channels, would soon be without 
 useful results if \hex were not kept under strict surveillance by 
 agents beyond the power of local control. "Worse than all, the 
 works of maintenance and repairs of structures so necessary to 
 insure security of property from overflow would not be executed 
 were the proprietors not closelj' watched. According to this 
 double motive, wherever the utility of these works has become 
 well understood, those interested have recognized that the in- 
 fluence of a special general agent is indispensable to insure the 
 measures of construction and police in question." 
 
 And in another place this author says: 
 
 " This principle is admitted by every one who in the least 
 understands the matter, that water-courses not a part of the 
 public domain are, in the absence of governmental control, really 
 in a state of abandonment, that seems to call forth on the part 
 of riparian owners manifold offenses against the common wel- 
 fare, and usurpations of all kinds. The first consequence of this 
 
 ' See, De Passy, Malapert, Duniont, and De Buffon. 
 
72 FRENCH I R RIG A TION LE GISLA TION. 
 
 state of things, deplored by everybody, is the enormous damage 
 thus caused to agriculture, increasing daily, and so occasioning 
 losses whose amount in coin, if it could be calculated, would be 
 a frightful sum; lessening the agricultural wealth of the country, 
 wherever this interest in the streams has for any length of time 
 been neglected."— [De ButTon, Vol. II, p. 133. 
 
 This damage is depicted as arising from injury to stream chan- 
 nels by want of care and neglect, or the deposit of materials so 
 as to cause the filling of the channels over long courses, and the 
 consequent overflow of lands, or the supersaturation of soils with 
 moisture from the effects of bad drainage. And the author then 
 says: 
 
 "We could cite localities, rich and flourishing in years gone by, 
 where to-day agriculture is nearly annihilated, under the weight 
 of calamities which were preventable by proper guarding of the 
 small streams. Far are we from exaggerating the real situation 
 to attract attention to the subject we are occupied with, for it is 
 easy to assure everybody of its truth, or, to say it better, it is a 
 truth too well known, for everybody can prove it by investigations 
 in many localities, by the weight of the mournful words : ' We 
 average a crop in but two years out of five.' " — [De BufPon, Vol. 
 II, p. 134. 
 
 "The indispensability of river-guards must be considered as 
 having been completely demonstrated by experience. The prac- 
 tice of riparian owners and manufacturers making encroachments 
 on the channels of water-courses has, in every instance, developed 
 where there has been no inspection, or where the agents had too 
 extended beats and could not attend properly to their duties. But 
 where guards have been in almost daily communication with the 
 users of the water-courses, regulations have been observed and 
 infringements prevented. An infringement taken at the com- 
 mencement is generally discontinued on receiving a friendly 
 notice, while suits entered afterwards are often uncertain in their 
 results." ' 
 
 These words were written in 1856, when the hydraulic service of 
 the country was not nearly as well organized or extended, nor the 
 regulations so strictly enforced as they are now; and it is consid- 
 ered that De Buffbn contributed more than any other person to 
 the general understanding and popular appreciation of the subject 
 at large, and thus did much to forward measures of reform which 
 have since followed. The sentiment actuating these measures, 
 and the principle on which they rest, are aptly set forth by the 
 following paragraph from the same work, written in the discus- 
 
THE ADMINISTRATIVE SYSTEM. 73 
 
 sion of the habit of encroachment upon and interference with 
 stream channels and banks by riparian land owners: 
 
 ''Water has, on riparian properties, a natural, primordial right — 
 the right to a sufficient and proper channel in which to pass. 
 * * * River waters are, then, from time immemorial, in pos- 
 session of canals carved out of the surface of the earth, in dimen- 
 sions proportioned to the quantity of the flow to be carried. This 
 is possession on the part of the state. The existence of these canals, 
 as old as the world, is a title in the state, inscribed in the ground 
 by the hand of God for the common good. Consequently it is a 
 sound conclusion that public authority should have the right, and 
 that it should be its duty, to have them respected and not tam- 
 pered with by every dweller on their banks." — [De Bufifon, Vol. 
 II, p. 148, etc. 
 
 AVTHORITIES FOR CHAPTER II. 
 
 Be Passy.—"A Treatise on the Hydraulic Servioe." By M. G. De Passjf a chief 
 engineer in the Government Corps of Civil Engineers, France ; (French), 
 1 vol., 3d ed., Paris, 1876. See, generally, pp. 1-130, 297-385. 
 
 JDmnont. — "The Legal Organization of Water-Courses." By Messrs. Adrien 
 Pumout, Advocate, etc., and A. Dumont, Corps of Civil Engineers, 
 France; (French), 1 vol., Paris, 1845. See, generally, pp. 1-13, 134-330. 
 
 De Buffon. — "A Course of Agriculture and Agricultural Hydraulics." By Na- 
 dault de Buffon, an engineer-in-chief of the Government Corps of Civil 
 Engineers, France; (French), 3 vols., Paris, 1856. See Vol. II, Part II, 
 Section 1. [This work must not he mistaken for the later one of quite 
 similar name and by the same author, describing the works and sys- 
 tem of Italy, and cited as an authority for subsequent chapters of 
 this report.] 
 
 Malapert. — " History of the Legislation of the Public Works of France." By 
 W. F. Malapert, Advocate, etc.; Paris, 1880 (French). See, generally, 
 headings, "Water-Courses," "Engineers," "The Present Republic." 
 
 iJcc(«.s.— " The Earth and its Inhabitants." By ElisSe Reclus; edited by E. G. 
 Ravenstein, F.R.G.S. ; 5 vols., New York. 1881. See Vol. II, I'rauce, 
 Ch. XV. 
 
 i)a.Mo0.— "Methodical Treatise on Legislation and Jurisprudence." By M. D. 
 DaUoz, Sr., aud M. A. Dalloz; (French), 56 vols., quarto, Paris. See 
 word "Waters," Vol. XIX, pp. 312-500. 
 
 Bebauve. — "Waters as a means of Transportation — River Navigation." Vol. 
 XIX of authorized Civil Engineering Manuals (French). By A. De- 
 bauve, Government Corps of Civil Engineers, Prance; Paris, 1878. 
 
 Bebauve. — "Use of Waters in Agriculture — Irrigation," etc. (French). Vol. 
 XVIII (of above named series). 
 
 ProMdAon.—" Treatise on Ownership of Property." By M. E. Proudhon; Brux- 
 eUes, 1842 (French). See § 815-820. 
 
 Ciril Code.— French Codes. Edition of Alphonse Pigoreau ; Paris, 1845. 
 
 C'ivil Code. — Code Napoleon. Translated bj' Robert S. Richards, M.A., London. 
 
74 FRENCH IRRIGA TION LEGISLA TION. 
 
 CHAPTER in -PEANOE'^'; 
 
 WATEE PEIVILEGES AND THE ADMIUISTEATION OF NAV- 
 IGABLE AND EAFTABLE STEEAMS. 
 
 Section I. — Water Privileges. • 
 
 The Uses to which Water is Put, and the Regulation of its tTse. 
 The Rivers and River Works of France. 
 Forms of Organization of Enterprise. 
 Applications and Formalities for Water Privileges. 
 The Case of the Bourne Canal. 
 Obligations of the Grantees. 
 Conditions of the Concession. 
 Privileges of the Grantees. 
 Benefits to the Grantees. 
 
 Section II. — Regulation of Worlcs. 
 
 Government Improvement of Rivers Generally. 
 Extent and Field of the Hydraulic Service. 
 The Principles of Cooperation and Compulsion. 
 Construction of Dams and of Headworks. 
 
 Section III. — Operation and Maintenance. 
 
 General Maintenance of Works. 
 Cleaning or Dredging of Channels. 
 Police of Streams. 
 Water Privilege Rents. 
 
 SECTION I. 
 
 Water Privileges. 
 
 The Uses to which Water is Put, and the Regulation of its Use. 
 
 Water is extensively used from streams in France for irriga- 
 tion, the production of power for manufacturing, for consumption 
 in industrial processes, for domestic, sanitary, and other munici- 
 pal purposes; and these four uses will he referred to herein as 
 " irrigation," " manufacturing," " industrial works," and " munici- 
 pal uses." As opposed to these industries and necessities which 
 generally require the water to be taken from the streams and in 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 75 
 
 great part not returned, the interest of navigation, the general 
 sanitary condition of the stream channels and consequent health- 
 fulness of their neighhorhoods, the convenience, comfort, and 
 sometinaes the necessities of riparian land owners, and the grati- 
 fication of the people generally, demand that the water be left 
 in the streams. And while thus there is a serious clashing 
 between the two sets of opposing interests, those who demand 
 the water out of the streams are by no means in harmony, but 
 amongst themselves are most often brought face to face by con- 
 flicts of interest. 
 
 The government owns, controls, and' in a business-like way, 
 administers the aifairs of all water-courses deemed navigable or 
 floatable for rafts, or large timber, fostering the interests depend- 
 ent on the use or presence of the water, and striving to insure the 
 most complete, widespread, and well distributed good results to 
 the people and the nation from the use of their properties. To 
 this end, these streams have been studied so that their channels 
 are well mapped out, their flow at different seasons of the year 
 known, the requirements of the various industries well considered, 
 and every work affecting the river's flow, or intended for drawing 
 water from it, is measured and registered, and its rights or neces- 
 sities, understood. There are very many old water-rights on these 
 streams dating back several centuries; some even previous to the 
 issuing of the edict of Moulines in 1566, but even towards these 
 the administration has power to act as may best conserve the 
 interests of the public and preserve the equities which attach to 
 the private interests involved. 
 
 The Object of Administration} 
 
 Interference is not the object of this systemization, nor is it the 
 practice to needlesslv exercise surveillance or management of the 
 use of water. The object is to protect each general and individual 
 interest against the general and naturally unavoidable antagon- 
 ism of each other interest, and to administer a common property, 
 which, by the nature of things, could not by any possibility be 
 administered in a business-like way by any other than a govern- 
 ing power of some kind. Accordingly, no work of any sort, kind, 
 or description may be erected upon a navigable river or a stream 
 floatable for rafts, or timber, or one declared so, in France (indeed, 
 
 ' See, De Passy, Dumont, and De BufFon. 
 
76 FRENCH IRRIGA TION LE GISLA TION. 
 
 the rule in this regard is not much less strict for streams not navi- 
 gable nor raftable, as well), nor can any water be taken from such 
 streams, except it be taken in a bucket or other similar hand ves- 
 sel, without the project for which it is required, the plan by which 
 it is to be constructed, if a work, or used, if a water privilege, has 
 been first submitted to the administrative authorities, and pub- 
 licly made known, criticised, and opposed if other interests are 
 threatened. 
 
 All interests are put on their guard, all sayings in opposition 
 are heard, all criticisms listened to. The project is examined by 
 those knowing well the facts bearing on the whole case, and com- 
 petent to judge of the tendency of such facts and their probable 
 results ; and permits are issued or refused after the whole case has 
 been viewed with all the care and intelligent consideration which 
 its importance will justify in each instance. Older rights and 
 those of industries most needful are always protected in the 
 administration of affairs from day to day ; but no right is so old 
 or no use so pressing that its owners have the power to control the 
 division of the people's water, or use it in a manner wasteful or 
 inefficient, or in any way unnecessarily hamper or hinder the full 
 development and prosperity of other institutions dependent on 
 water supply. 
 
 This is the object and purpose of the French administration of 
 waters. It cannot be claimed to be perfect, either in theory or 
 practice. That it is the best devised and in use, befitting appli- 
 cation amongst a free and enlightened people, there can be no 
 doubt. But it is not the best that can be de^^sed for freer, equally 
 enlightened, and more progressive people. Nevertheless its main 
 principles are to be noted, and the general ideas of settled and 
 registered privileges, and intelligent administration of the element 
 common to their beneficial exercise, is to be kept in view and 
 incorporated in any system which will assure freedom from clash- 
 ing, immunity from litigation, and a full measure of benefit from 
 the opportunities presented. 
 
 Rivers and River Works in France} 
 
 France has a very much extended and intricate system of water- 
 courses, several of which are large rivers naturally navigable for 
 
 ' See, RecluK, Debauve (Vol. XIX), Malapert, and De PaKxy. 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 77 
 
 long distances from the sea. Kising amidst the snows and gla- 
 ciers of the high Alps, or on the rain drenched face of the Pyr- 
 enees, or in the forest covered and heavily watered Vosges, or upon 
 the rolling and wooded plateau of central France, these rivers are 
 generally well supplied with water, and are sometimes subject to 
 great and devastating floods. The destructive operations of man 
 and his grazing animals on the mountains, the industrious tillage 
 and soil loosening on the rolling grounds, the wasteful and crim- 
 inally stupid action of municipalities in the disposal of filth by 
 depositing in river channels, and others of the nature-consuming 
 influences which have unfortunately accompanied the develop- 
 ment of civilization, long ago forced the attention of the French 
 government to river maintenance and improvement as a national 
 necessity. So that river works, commenced as purely commercial 
 ventures and enterprises by private individuals and companies, 
 and by the government in the centuries that have passed, have 
 been added to in great number and spread out in class and char- 
 acter and locality, over nearly the whole country, by the influence 
 of necessity in preventing harm, as well as that of enterprise in 
 promoting the development of the country. 
 
 The lower and larger rivers and those of light slope in alluvial 
 formations have, as a class, been improved by systematic em- 
 banking, training of currents, and dredging, and the higher 
 rivers of greater grade slopes; been made navigable by dams in 
 series, retaining the waters, at times of ordinary and low supply, 
 in approximately level reaches from one to the other, or lessening 
 the grades at those parts of their courses where the natural slopes 
 of the beds were too great to admit of a navigable depth with the 
 supply at command, and with a moderate current in the waters. 
 These succeeding reaches or levels are, of course, connected at 
 the dams by means of water locks for the passage of boats, and 
 the dams themselves in very many instances are partly removable 
 along their crests, sometimes automatically by the rising waters, 
 and sometimes by the work of attendants, so as the better to ad- 
 mit of free passage for flood waters. In the cases of the higher 
 streams, or parts of streams, the channels are frequently made 
 floatable for timber and lumber passing from the forests on their 
 head waters, also by means of dams, having permanent ways or 
 removable weirs through or over which to float the rafts. 
 
78 FRENCH IRRIGA TION LEGISLA TION. 
 
 Navigable and Non-Navigable Rivers} 
 
 It is on the rivers and portions of rivers where it has become 
 necessary to construct dams for navigation, and those, still higher, 
 which have been dammed for purposes of floatation, that water 
 privileges are chiefly sought after for power purposes, irrigation, 
 municipal supply, and industrial use. Such water-courses are 
 public property, under full control of the administration. 
 
 Non-navigable and non-raftable tributaries of navigable or raft- 
 able streams, and these streams themselves above the points where 
 they become navigable or raftable, for the reason that it is neces- 
 sary in the interest of navigation, public water supply, equity in 
 distribution of waters to claimants below, and other reasons obvi- 
 ous from what has already been written, are also under the control 
 of the administration, which is authorized to limit all diversions 
 proportionately, or prohibit them at times, according to prefixed 
 schedules of right, and rules and regulations framed for each case, 
 when necessary to the public welfare. 
 
 With respect to the 'non-navigable arms of those streams which 
 divide into two or more branches in their onward course, the gov- 
 erning rule appears to be not so well defined. When such non- 
 navigable arm again unites with the navigable channel, it is 
 regarded as being itself navigable, and is subjected to regulations 
 accordingly. When such non-navigable branches do not again 
 join the main or navigable stream below, according to some au- 
 thorities, they are regarded as navigable, and the reverse is true, 
 as stated by other writers. 
 
 Still or stagnant waters, those draining from marshes and 
 ditches, that have free communication from navigable or raft- 
 able streams and whose waters flow the year round, or waters 
 where ferryboats can enter at all times, and those cared for at 
 the expense of the state, also make part of the public domain, 
 and a right to dispose of or use them may be had only by special 
 authorization, as in the case of navigable streams. 
 
 Forms of Organization of Irrigation Enterprise.'' 
 
 Setting aside that very large class of cases brought up by recla- 
 mation, embankment, drainage, municipal improvement, sanitary 
 
 I See particularly, Dumont, § 88-91; also, Debauve, and De Passy. 
 ^ See, particularly, Dumont, and De Passy; also, De Buffon. 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 79 
 
 regulation, and other developments requiring the construction of 
 works in or on the banks of water-courses, and which, equally 
 with the class of cases herein to be considered, come under the 
 supervision of the administration, but which are not so intimately 
 connected with irrigation works and the use of water from streams 
 as to justify their treatment in this report, we come now to a glance 
 at the forms which irrigation enterprise takes, and then to the 
 various proceedings made necessary by these varied forms of 
 organization, to acquire the privileges desired by each. 
 
 Projects requiring special privileges to use water, or sanction of 
 plans to erect works in water-courses, are undertaken either as 
 private enterprises of individuals to water their own lands, to run 
 their own mills, or for other private purposes, as cooperative enter- 
 prises of associated land-holders for the watering of ikeir own 
 lands, etc., or as speculative enterprises by individuals, associated 
 land-holders or capitalized incorporated companies desiring to sell 
 water to consumers. These differences of organization, together 
 with the variation in use to which waters are put under the 
 privileges, as already explained, make necessary different forms 
 of application, varied formalities in the consideration of them, and 
 distinctive forms and conditions attached to the grants which 
 result. 
 
 Instances of individual enterprise are common on streams of 
 all classes, but most frequent on non-navigable streams, and enter- 
 prises in which there are wSeveral copartners, rank with those 
 individual. Associations of land-holders for irrigation usually 
 take the form of "syndicates" — a species of organization provided 
 for by a special law, hereafter to be spoken of (Chap. VII) — and 
 enterprises carried on by these associations are also most common 
 on non-navigable streams. Speculative enterprises are generally 
 on comparatively large scales, conducted by capitalized com- 
 panies, and under special grants of water privileges on the larger 
 streams of the public domain. 
 
 In order to divide the subject well, and give a range of illus- 
 tration without taking too many examples, the forms, etc., for 
 individual enterprises, will be spoken of for both navigable and 
 non-navigable streams, the forms for grantee companies, tmder 
 the head of navigable streams, where alone they could be placed, 
 and the forms for syndicate associations, under the head of non- 
 navigable streams, on which they are most common. 
 
80 FRENCH IRRIGA TION LEGISLA TION. 
 
 Applications and Fdrmalities for Water Privileges} 
 
 When water privileges or permits to construct works are- desired 
 by individuals for their own private benefit, in the use of water or 
 otherwise, on navigable or raftable streams, a formal application 
 must be made to the prefect of the department wherein the in- 
 tended work or diversion is to be made. Accompanying this 
 application there must be a statement as to the object for which 
 the work is intended, and the location, character, and general 
 plan of the work itself. If the application is also for a privilege 
 of using or diverting water, in addition to the specifications con- 
 cerning the works intended or desired, there must be a statement 
 concerning the use to which the water is to be put, the lands to be 
 irrigated, if any, the amount desired, etc. 
 
 Under the direction of the prefect the project is reported on, 
 preliminarily, by the mayor of each commune in which the pro- 
 posed work is situated, or where its effects will be directly felt. 
 These preliminary reports are made after due advertisement and 
 inquiry, and the hearing of objections on the part of those who 
 may care to oppose the measure. The sub-prefect of the arron- 
 dissement, to whom these reports are made, reviews them as he 
 may see fit, and transmits them, with all the papers and abstracts 
 of evidence, to the prefect. This preliminary examination is 
 made with the view of calling out and collecting the sentiment 
 of the people interested and as a basis for the other investigations 
 which follow. 
 
 The results of the preliminary examination are handed by the 
 prefect to the departmental engineer, or if there is an engineer 
 specially in charge of the stream in question, they are handed to 
 him, with instructions to examine and report. This engineer then 
 holds an inquiry into the case, with the view of ascertaining the 
 engineering bearing of the works proposed, and the manner in 
 which other works, rights, or interests may be affected, and the 
 public utility of the stream subserved. The engineer may take 
 evidence of interested parties should he see fit, and must always 
 examine the ground and locality of the proposed works. He 
 draws a report in writing, which is transmitted, with all the pa- 
 pers, etc., to the chief of the engineering bureau and also to the 
 prefect. 
 
 ' See, particularly, De Passy, and many Decrees, etc., in the vol?, of the An- 
 nates des Fonts et Chauss(es; also, Duniont. 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 81 
 
 If it is a case in which the prefect has authority to act, he goes 
 on with it; if not, he awaits the opinion of the engineer-in-chief. 
 On the basis of the engineer's report the prefect instructs the sub- 
 prefect to hold the final inquiry, notices of which are duly pub- 
 lished. All of the papers are opened to inspection, and the plans 
 to criticism, at the niaj'oralty house of the local commune. The 
 engineer may be called upon to revise the plans or to modify the 
 project to suit the case or do awa}- with objections. 
 
 Finally, the sub-prefect reports the results to the prefect, and, 
 if it is a case in which his authority is competent, he issues or 
 denies the desired permit or privilege; or if his authority does not 
 meet the case, he refers it to the central administration, which in 
 due time acts by decree of the council of state. 
 
 ir«fec Pririkge Grants — Examination of Projects} 
 
 "W'here water privileges on streams navigable and of the pub- 
 lic domain are desired by individuals, companies, or societies, for 
 speculative purposes, all permits and concessions have to be 
 acquired by decree deliberated upon in the council of state. In 
 this class of cases a still more formal line of proceedings has to 
 be followed out than those already described for individuals 
 obtaining permits to water their own lands, or for other purposes 
 of private use. 
 
 The application for the grant of privileges, etc.,' is made to the 
 prefect of the province. It must be accompanied by : 
 
 (1) An outline map of the proposed district to be irrigated, 
 showing property divisions and other features, and indicating by 
 special tinting the irrigable lands under the project. 
 
 (2) A statement in detail of the extent of each district, with 
 the names and residences of all land proprietors therein. 
 
 (3) A statement of the conditions proposed to be attached to 
 the contract of the grant and accepted by the petitioner. 
 
 (4) Preliminary plans, specifications, and estimates of the 
 works, drawn out in considerable detail. 
 
 The project is submitted by the prefect to the proper engineer, 
 who gives an opinion as to the public utilit}^ of and necessity for 
 the works. The prefect then indorses his own views in this re- 
 
 ' Same authorities as for preceding subdivision. 
 6' 
 
82 FRENCH IRRIGA TION LE GISLA TION. 
 
 gard upon the report and forwards it to the minister of public 
 works. Following this and on instructions from the minister, 
 the proceedings heretofore described, in which all interested par- 
 ties have their hearing, are had under the supervision and con- 
 duct of the departnientaL administrative officers and engineers. 
 
 Upon the results of these inquiries being returned to the minis- 
 ter, together with the reports of the engineers, he brings the whole 
 subject before the council of state, with his opinion and recom- 
 mendation. Should the petition be acted upon favorably, the 
 miinister of public works enters into a contract with the grantee, 
 in such way as to guard the interest of the public and of the 
 land-holders in the district, and a decree is issued granting the 
 privileges desired and stipulating the conditions attached. Large 
 works of this kind are considered of such great public value in 
 Prance, and local financial conditions are so much against their 
 undertaking, that the government, as elsewhere explained, on 
 proper showings being made, engages to pay a subsidy to the 
 grantee company, or individual, as the works are carried out and 
 completed. 
 
 The Case of the Bourne Canal} 
 
 I take, as an instance of such a work and grant, the case of 
 the canal of the Bourne River, in the department of the DrSme, 
 which was authorized in February, 1874. Application was made 
 by three individuals, on behalf of a society organized in the region 
 of the proposed irrigation ; not as a syndicate of land-holders to 
 irrigate their own lands, but a company to carry out a project 
 as a business proposition, and to deal with several syndicates of 
 land-holders desiring irrigation for their lands. The formalities 
 being gone through with, the minister of public works entered 
 into a preliminary convention or agreement with the society, in 
 which terms of the concession were drawn out in detail. 
 
 There being some doubt as to the proper proceedings, and a large 
 subsidy being asked, the matter was brought before the national 
 assembly for confirmation by a special law. This was passed in 
 May, 1874, declaring the public utility of the work, sanctioning 
 the terms of the preliminary agreement made between the minis- 
 ter and the grantees, ratifying the engagement to pay the subsidy, 
 and prescribing a form for the final contract, covering the prin- 
 
 ^ See, the Annates des Fonts et Chaussies, Laws and Decrees, Vol CXXVI n 451 
 et seq.; also, De Passy, p. 363, et acq. > i • i 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 83 
 
 cipal points of the preliminary agreement. I have made an anal- 
 ysis of these documents, grouping their important points under 
 suitable headings, and liere present the results, as follows : 
 
 Obligations of the Grantees. 
 
 The company is obliged : 
 
 1. To build at its expense, risk, and peril, the principal canal, 
 the two additional diversion canals, the secondary canals, and the 
 tertiary canals and ditches intended to lead water to each irriga- 
 tion proprietor's distributing gate. 
 
 2. To maintain the principal and the two diversion canals at 
 its own expense and under its own immediate care, and to main- 
 tain the secondary and tertiary canals and ditches, etc., at its own 
 expense and under its own care, or, by an arrangement for the 
 purpose, under the care of the irrigators. 
 
 3. To construct at its expense, delivery and distribution works, 
 for water for domestic purposes, for each commune, with branch 
 pipes and faucets to each house entrance for each subscriber. 
 
 4. To maintain these works and all parts of them, down to pipes 
 which carry two decilitres (c. ft., 0.007) of water per second. 
 
 5. To submit for the approval of the minister of public works, 
 within the year following the giving of the concession, a detailed 
 plan of the dam and the headworks to be constructed for the 
 principal canal and the two subsidiary canals of diversion. 
 
 6. To completely finish the principal canal from the Bourne 
 River, in working order, within five years from the date of ap- 
 proval of the concession. 
 
 7. To construct the secondary and tertiary canals and ditches for 
 distribution, in each instance, as soon as the subscriptions for water 
 to be delivered by the particular work are sufficient to assure a 
 revenue of six per cent on the cost of the work, according to esti- 
 mates to be approved by government engineers. 
 
 8. To complete each distributing system, when once com- 
 menced, within two years. 
 
 9. To commence the subsidiary diversion canals — from the 
 Lyonne and Cholet rivers — so soon as water is subscribed for to 
 the extent of five thousand litres (176 cubic feet) per second, and 
 after the commencement of the main canal, and to finish them 
 within two years after commencement. 
 
 10. To reestablish and maintain at its own expense the free flow 
 
84 FRENCH IRRIGA TION LEGISLA TION. 
 
 of all drainage waters, whose course may be intersected by the 
 works. 
 
 11. To do all possible at all times according to the rules laid ' 
 down by the administration to stop seepage waters from the canals 
 and other works built by the company, and stop all undesired 
 wetting of lands and property. 
 
 12. To construct, at its own expense, permanent bridges for 
 crossings of all existing ways of communication, encountered by 
 the canal, according to approved plans, and of dimensions speci- 
 fied in the official agreements for roads, etc., of different classes 
 and kinds. 
 
 13.^ To construct for use, pending the completion of these perma- 
 nent crossings and the canal, adequate and safe temporary cross- 
 ings and side roads for the traffic, according to approved plans. 
 
 14. To manage its work according to approved plans so as never 
 to interrupt traffic on any railroad or other principal line of travel. 
 
 15. To conform to all rules hereafter made by the administra- 
 tion relative to the preservation of safety of travel. 
 
 16. To use materials for the several distinctive parts of the 
 various classes of structures to be built, of the kind and quality 
 preliminarily specified. 
 
 17. To buy and pay for all lands to be occupied by the main, 
 secondary, and tertiary canals, and other works forming a part of 
 the system. 
 
 18. To pay for, as a servitude, the right of way for smaller 
 ditches of distribution. 
 
 19. To pay all indemnities for temporary occupation or deterio- 
 ration in value of lands, or for the stopping of manufactories 
 pending construction of any work, and all damages whatsoever 
 which should occur in consequence of such cessation, or the exe- 
 cution of works. 
 
 20. To maintain, at all times, the principal canal, with its di- 
 versions and dependencies, in a good and efficient state of repair 
 and order. 
 
 21. To do all that can be done to assure, during the irrigating 
 periods, the full supply of water contracted to be delivered peri- 
 odically to the irrigators. 
 
 22. To do all that can be done to regularly deliver at all times 
 the quantity of water engaged for public or private use, for power, 
 machinery, and industrial purposes. 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 85 
 
 23. To mark out the boundary of the districts and sub-districts 
 of irrigation, and make complete maps of the same. 
 
 24. To survey, stake out, and prepare complete plans of all 
 canals and ditches. 
 
 25. To plan, describe, and specify in detail all works entering 
 into the system, before they are i;ndertaken. 
 
 2(). To pay taxes on lands occupied by all its canals, structures, 
 and other works. 
 
 27. To pay taxes on buildings, sheds, and storehouses. 
 
 28. To pay taxes on its canals and ditches. 
 
 29. To guarantee to deliver, on demand, at times of lowest sup- 
 ply, the full amount of water subscribed for by a certain number 
 of subscribers who subscribe first. 
 
 30. To suffer a deduction of rents in case of non-delivery of 
 waters, except as per condition No. 24, following. 
 
 31. To suffer roads, railroads, etc., approved by the administra- 
 tion, in future, to be built across its works. 
 
 32. To employ such agents and guards for the police of the 
 canal, for the supervision of its working, as can be sworn as rural 
 police officers. 
 
 33. To bear all expenses of preliminary examinations, surveys, 
 plans, etc., all expenses of construction, etc., superintendence, 
 government examination and engineering, supervision, and exam- 
 inations for acceptance on completion. 
 
 34. To have the headquarters at Valence, there to have a resi- 
 dent agent authorized to receive all government communications 
 and generally ti-ansact the business of the company. 
 
 35. To deposit within eight days after final organization of the 
 company, in the consignment fund of the treasury of state, under 
 the title of a bond, the sum of 75,000 francs ($15,000), to be held 
 until the works have progressed to the expenditure of 300,000 
 francs ($60,000), as reported by the government engineers, etc. 
 
 Conditions of the Concession. 
 
 The grantee has certain privileges, under conditions as follows: 
 
 1. That it (the company) always leaves in the water-courses 
 whence it derives its supply, at lowest stage, a flow below its 
 dams of at least half a cubic metre (17.5 cubic feet) per second. 
 
 2. That the indi-vidual distributing headgates, drainage ditches, 
 
86 FRENCH IRRIGATION LEGISLATION. 
 
 and other such works, shall belong to the irrigator in each case, 
 and be built by him or at his expense. 
 
 3. That the consumers can compel the company to construct 
 any certain distributing system when they have subscribed for 
 enough water to be delivered by it to guarantee six per cent 
 interest on its estimated cost. 
 
 4. That all plans for the main works be approved by the cen- 
 tral administration before construction. 
 
 5. That all plans for distribution works be approved by the 
 prefect of the department before construction. 
 
 6. That plans for all works shall first be approved by the chief 
 of the government civil engineering bureau. 
 
 7. That all changes of plans shall be approved by competent 
 authority before the work is executed. 
 
 8. That the society shall execute the works under the super- 
 intendence of its own agents, but under the supervision and 
 inspection of those of the government. 
 
 9. That all works, during the term of the concession, be sub- 
 ject to inspection annually, and oftener if deemed necessary in 
 cases of accident or complaint, by the government engineers. 
 
 10. That in all that concerns supply, maintenance and repairs, 
 either ordinary or extraordinary, upon the failure of the company 
 promptly to act, the administration, through the engineers, may 
 carry out the necessary measures or works at the expense of the 
 company. 
 
 11. That the main works will be provisionally received, upon 
 the favorable report of a commission of inspection appointed by 
 the administration, each as completed. 
 
 12. That the final reception by the central administration will 
 not take place until one year thereafter. 
 
 13. That the report of the commission of inspection be in each 
 case accompanied by full and final plans and reports of the work 
 done, prepared at the company's expense. 
 
 14. That two copies in full of these plans, reports, etc., be fur- 
 nished, one for the department oflices, and one for the central 
 administrative offices, at the company's expense. 
 
 15. That the same operation shall be gone through with after 
 completion of the secondary systems of works, but that in these 
 cases the reception be made by the controlling engineers and 
 approved by the prefect of the department. 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 87 
 
 16. That if within i\\o years after the date of the concession the 
 company has not commenced the main works, it forfeit all rights 
 imderthe agreement. 
 
 17. That if within the term of five years the company has not 
 completed the main works and fulfilled other requirements speci- 
 fied, it forfeit all rights and properties, which are to be disposed of 
 as the government may direct. 
 
 18. That, in the event of forfeiture, the company is to receive 
 from the party into whose hands the property goes, a sum to be 
 adjudicated by referees. 
 
 19. That, if after two trials at settlement, as to amounts to be 
 paid, there be no agreed result, the company forfeits all, sum- 
 marily. 
 
 20. That forfeiture cannot be enforced if great unforeseen cir- 
 cumstances intervene to prevent the completion of the obligations. 
 
 21. That the administration shall determine the duration and 
 time of the irrigation period each year. 
 
 22. That irrigation necessities are to be preferred to those of 
 manufacturing. 
 
 23. That subscribers may, by pa^^uent of a sum to the society, 
 which, at six per cent, •will represent the capitalized value of their 
 water rents, thereafter be freed from payment of such rents. 
 
 24. That no reduction can be demanded on water rents should a 
 scarcity of supply result from accidents not to be guarded against 
 by the company. 
 
 25. That subscribers are bound to irrigate land at the rate of 
 one hectare (2.47 acres), or less, to the litre (0.03 cubic foot) per 
 second ' of water subscribed for, and not to divert the water for 
 any other purpose than as agreed upon by the subscription. Nor 
 can any subscription be for a less amount, for irrigation, than one 
 litre per second. 
 
 26. That the consumers of the water in the'sub-district supplied 
 by each secondary canal may form a S3Tidicate association, under 
 the [terms of the law for such organizations, and take out of the 
 hands of the company the works of that sub-district, by paying 
 annually, in bulk, to the company, a sum equal to six per cent on 
 the cost of the works, or a sum equal to the water rents subscribed 
 in the distiict, according to the water demanded. 
 
 27. That the company may transfer the works in any sub-dis- 
 
 ' At least 82.3 acres per cubic foot per second. 
 
88 FRENCH IRRIGA TJON LE GISLA TION. 
 
 trict to a syndicate of the consumers for any agreed upon amount ; 
 but must thereafter deliver all water subscribed for in the sub- 
 district. 
 
 28. That the grant or concession to the company be for a period 
 of ninety-nine years, commencing from the date of the provisional 
 acceptance of the main works. 
 
 29. That at the expiration of the time of concession, the com- 
 pany have no more right to the works, but the whole property be 
 turned over to the state in good condition. 
 
 30. That, to insure this last condition, the works are to be 
 inspected and put in proper condition, under the direction of gov- 
 ernment engineers and at the expense of the company, within the 
 two years preceding the expiration of the term of concession. 
 
 Privileges Granted to the Company. 
 
 On the foregoing conditions the company has the privilege: 
 
 1. Of taking seven cubic metres (245 cubic feet) of water per 
 second from the Bourne River. 
 
 2. Of making up this volume at low stages, by taking two cubic 
 metres (70 cubic feet) from the rivers Lyonne and Cholet. (See 
 condition No. 1.) 
 
 3. Of supplying a certain district of 22,000 hectares (54,340 
 acres) in area, of which 10,500 hectares (25,935 acres) are irriga- 
 ble, with water for all purposes — ^irrigation, manufacturing, indus- 
 trial use, domestic, and municipal purposes. 
 
 4. Of doing work and using material of a better class than 
 preliminarily specified, according to the judgment of the govern- 
 ment engineer. 
 
 5. Of showing the administration at any time why plans of con- 
 struction should be changed, and asking for changes. 
 
 6. Of representing to the administration at any time, conditions 
 or facts which has rendered it impossible to fulfill its engagements. 
 
 7. Of shutting the water off from the canals, for purposes of 
 repairs and clearances, for one month each year, at a time to be 
 fixed by the prefect of the department, and not in the irrigating 
 season. 
 
 Benefits to the Grantee Company. 
 
 And the company is the recipient of benefits as follows: 
 1. The authority to collect water rents, for the term of ninety- 
 nine years, as follows: 
 
WATER PRIVILEGES ON PUBLIC RIVERS. 89 
 
 For irrigation — From all who subscribe before the water is put 
 in the main canal, for a fixed amount of water annually, at the rate 
 of 50 francs per litre ($269 per cubic foot') of discharge per sec- 
 ond during irrigation. 
 
 From all those who subscribe after the water is put in the main 
 canal, at the rate of 60 francs per litre ($323 per cubic foot ") of 
 flow, etc. 
 
 From the first subscribers above named, for an additional 
 amount, engaged after the water is put in the main canal, equal 
 to that at first subscribed for, at the same rate of 50 francs per 
 litre ($269 per cubic foot) of flow, etc. 
 
 For all subscribed for by them over this double of the first sub- 
 scription, at the rate of 60 francs ($12), etc. 
 
 For domestic, municipal, garden watering, ornamental, and other 
 similar purposes — For a continual supph', at rates stipulated, etc. 
 
 2. The authority to sell motive power, during the term of the 
 concession, to individuals who want to utilize it for factories, at an 
 annual rental of 200 francs ($40), per one horse-power; a single 
 horse-power being represented by a volume of 100 litres (3.5 cubic 
 feet) of water per second, having one metre (3.28 feet) fall. 
 
 3. The authority to collect, under the executive power of the 
 prefect of the department, and in the same manner taxes are col- 
 lected, all rents for irrigation waters subscribed for, during the last 
 three months of the year, in advance. 
 
 4. The authority to collect, in the manner spoken of above, all 
 rents for water for domestic, municipal, and other similar pur- 
 poses, and for motive power, at the commencement of the year, 
 in advance. 
 
 5. And finally, the government, through the minister of pubUc 
 works, after the compan}' has shown a subscription for water to 
 the amount of 3,000 litres (106 cubic feet) per second, or more, 
 engages to pay the company a subsidy of 2,900,000 francs ($580,- 
 OOO), as follows: 
 
 Ten per cent on final completion of all works. Two thirds of 
 balance on works done or expenses incurred on main canals and 
 works, in installments amounting to one third of actual costs, as 
 reported by the government engineers. The other third, in the 
 same way, on works of the secondary and distributing systems, etc. 
 
 ' At most |3 27 per acre per season. 
 ^ At most $3 92 per acre per season. 
 
90 FRENCH IRRIGA TION LEGISLA TION. 
 
 SECTION II. 
 
 Regulation of Works. 
 
 Government Improvement of Navigable Rivers} 
 
 The rivers of France generally have high rates of slope and 
 rapid currents, where works of irrigation and water power are 
 constructed. The channels are through heavy formations, as 
 compared to the alluvions of Californian valleys, and the beds 
 are almost always gravelly, and not infrequently rocky. Such 
 streams may in their upper courses pass through alluvial irri- 
 gable valleys, and then again meander through ravines and 
 rolling lands. It is due to these characteristics of the hydro- 
 graphical system that water power early came into very extended 
 use in France, and, following the development of trade thus 
 caused, that the demand arose for making the streams them- 
 selves navigable. 
 
 Thus, the system of canalizing rivers by means of dams, in 
 series, at intervals along their course, making nearly slack water 
 navigation between each two, naturally came into being, and has 
 resulted in a high degree of skill and perfection of practice in 
 the general disposition of such works and arrangement and con- 
 struction of their parts. The French masonry and iron frame 
 movable dams of several distinct types and patterns, are models 
 of construction in this line for engineers of other countries, where 
 similar conditions obtain and like purposes are to be subserved. 
 The government civil engineers have charge of such rivers 
 throughout their valley course, and it is the endeavor to bring 
 all works into harmony with a system best calculated for the 
 public utility of the streams and the safety and well-being of the 
 interests along their banks. 
 
 Extent and Field of the Hydraulic Service.^ 
 
 The hydraulic service of the public works bureau comprehends 
 the supervision of river bank and channel works relating to the 
 creation of power for manufactures, diversion of water for indus- 
 
 ^ See, Debauve, and articles referred to by him in "Les Annates des Fonts et 
 Chmissies ;" also, Malapert. 
 '^ See, De Passy, Malapert, p. 417, and elsewhere. 
 
REGULATION OF WORKS ON RIVERS. 91 
 
 trial uses, for irrigation and colmatage,^ the cleansing or dredging 
 and improvement of channels, construction of embankments and 
 other defenses against floods, draining of marshes, sanitary im- 
 provement of moist lands, and agricultural drainage. By the 
 very nature of the objects contemplated, the service is divided 
 into two sections — one dealing with those cases where the water 
 is an auxiliary in the accomplishment of the purpose held in 
 view, the other with those cases where it is an enemy to be 
 encountered in effecting the desired end. Works connected with 
 manufacturing, industrial, and other uses, irrigation, and col- 
 matage, fall in the first section, while all others mentioned above 
 naturally rank in the second. 
 
 The Principles of Cooperation and Compidiiion} 
 
 When the water is an auxiliary, enterprises are frequently car- 
 ried out by individuals, as in manufactories, etc., and always by 
 voluntary action. While in irrigation and colmatage enterprise, 
 the initial moveraents are frequently on the part of collective 
 interests, but always voluntary, so far as each individual at inter- 
 est is concerned. 
 
 A^'hen, on the contrary, the water is an enemy, as in the improve- 
 ment of channels, sanitary drainage, works of defense against 
 floods, there is always an indissoluble common interest at stake, 
 so that the movement must benefit all land within some certain 
 district, primarily, and the pubUc generally as well, or else fail to 
 benefit any. In these cases the enterprise must necessarily be on 
 the part of the collective interest of all concerned, and the law 
 submits the minority to the will of the majority of interested land- 
 holders in the district. '" It cannot be allowed," says De Passy, 
 "that enterprises so essential to agricultm-al development be de- 
 feated by the resistance or indifference of an ignorant and capri- 
 cious minority." 
 
 ^Moreover, if it is recognized that the enemy to be fought inflicts 
 injury on the public interests, the administration has the right to 
 interfere and render obligatory the common action of all inter- 
 ested parties in the district, in spite of the opposition even of a 
 majority. 
 
 ' Colmatage is the French word for warping, silting-up, or enrichment of land.*, 
 by leading muddy waters upon and causing the silt to be deposited on them. 
 It is extensively practiced in many quarters of Prance, Switzerland, and Italy. 
 
 ' See. De Passy, pp. 7-11. 
 
92 FRENCH IRRIGA TION LE GISLA TION. 
 
 Regulation of the Construction of Davis} 
 
 Whenever possible, the holding up or diversion of water for a 
 manufactory, an irrigation canal, an industrial establishment, or 
 other use requiring the construction of a dam in the river and 
 acquirement of elevation in the water plane to give a head for 
 power or for flow out from the channel, is effected by a work which 
 serves at the same time to hold back water for the promotion of 
 navigation. The height of such a dam is limited by the eleva- 
 tion of the plane of safety to the lands which might be flooded by 
 back-water were it carried too high, and, at the same time, it is 
 governed by the requirements of navigation for a certain depth of 
 water in the reach above. 
 
 The cost of such works, in so far as they relate exclusively to 
 navigation, is borne by the state; the grantee of the water privi- 
 lege, for whatever purpose the use may be, exclusively bearing the 
 cost of his sluices and gates. When, however, dams are designed 
 and constructed for the common benefit of navigation and some 
 water privilege establishment, they are paid for and maintained 
 at the joint expense of the state and the water grantee, in propor- 
 tion to their respective interests, \inless special agreements of long 
 standing determine the distribution. 
 
 The distribution of expenses for construction, as well as for 
 maintenance of works built conjointly by the state for na^'iga- 
 tion and water grantees for their purposes, is made before the 
 works are executed, in every case by the central general admin- 
 istrative authority — the whole council of state in general assem- 
 bly — and is promulgated in an administrative decree. The 
 grantee's part of the cost is fixed at a sum to be paid annually, 
 and not in a sum paid at once. Thus the cooperation of the 
 grantee with the government results in his paying an annuity for 
 his benefits from the construction, and not in his paying at once, 
 in part for the work itself, and thus acquiring a right of property 
 in it; for works of this character, forming essential parts of the 
 system for navigation, must remain always public property. 
 
 The determinations of the council of state in these matters are 
 based on the reports and estimates of the government civil engi- 
 neers, and are also shaped in accordance with equities arising 
 from the peculiar circumstances of each case, taking for com- 
 
 See, De Pussy, pp. 299-324. 
 
REGULATION OF WORKS ON RIVERS. 93 
 
 parison, if need be, the results of other similar works carried out 
 under parallel circumstances. Whatever is paid by the water- 
 privilege grantee, goes into the cooperation fund for public works, 
 under the control of the minister of public works. 
 
 Such works are built and repaired and wholly cared for by the 
 administration, and, as far as necessary, under the advice or direc- 
 tion of the government civil engineers. In cases where a new 
 dam, not necessary for navigation, is to be established for the 
 benefit of a water-privilege grantee,- he is obliged to provide in his 
 plans and construct at his expense, a proper lock for the passage of 
 boats. Should the administration recognize in the work a benefit 
 to the river navigation, the government may contribute to the cost 
 of the lock. Plans for works constructed by grantees alone, are 
 always subject to revision by the government civil engineers, and 
 the carrying out of such works is subject to their inspection and 
 approval or condemnation. 
 
 Regulation of the Construction of Headworhs} 
 
 Headworks designed for taking water for any purpose of a 
 holder of a water privilege are always constructed and maintained 
 at his expense, and when in close connection with a dam for nav- 
 igation purposes, are carried out by the administration, or under 
 the immediate supervision and superintendence of the govern- 
 ment civil engineers, or, if not connected with a navigation dam, 
 they are subject to supervision only, the plans having been 
 approved. As waters for manufacturing, irrigation, and other 
 grantee purposes (except in the ease of supply to municipalities 
 for domestic purposes) , can only be drawn from the excess of sup- 
 ply over demand for navigation purposes, the determining and 
 gauging of the quantity allowed, so that at times of scarcity 
 equity may be observed in apportioning the available surplus, be- 
 comes a matter of extreme importance. 
 
 The forms and dimensions of the sluiceways, or gate openings, 
 the elevations of the sills, with respect to that of the dam's crest 
 and the legal low water plane of the river, always form the subject 
 of a special clause in the decree authorizing the establishment of 
 the works, and hence any modification in the plan of a dam or 
 headwork intended to divert water, cannot be made until duly 
 authorized by government. If the quantity of water to be taken 
 
 ' See, De Passy, pp. 303-316; also, Dumont. 
 
94 FRENCH IRRIGA TION LEGISLATION. 
 
 in any instance amounts to a considerable volume per second, as 
 is commonly the case in works intended for irrigation, it becomes 
 necessary, in providing for the regulation of the discharge, not 
 only to determine and fix the size and form of the headgates, but 
 also the form of section and gradient of the canal or other water- 
 way leading therefrom, for a certain distance varying with its size. 
 " For, in all cases, it is to be remembered that the sluice for tak- 
 ing water is the sluice for guarding it." — [De Passy. 
 
 If the quantity to be taken is small, in the case of irrigation, it 
 is deemed sufficient to provide for taking it through a culvert or 
 pipe of determined area and under a fixed head. In cases where 
 water is delivered in rather small quantities for distribution by 
 sale, it is parted out into a " sump," and then more accurately 
 measured over a gauged weir, of which the crest is arranged so as 
 to preserve a fixed head of water, producing the requisite dis- 
 charge. 
 
 SECTION III. 
 
 Operation and Maintenance. 
 General Maintenance of Works. 
 
 Concerning the subjects of this heading, very much has neces- 
 sarily been said under those which precede, nevertheless, it will 
 be well to call attention to some leading points already mentioned, 
 in connection with matters not yet spoken of. 
 
 The care of all navigable streams in France is committed to the 
 administration; all public works pertaining to the stream as a 
 navigable channel, or as a drainage way of the country, are in 
 care of the officers of the hydraulic service, and their assistants 
 and subalterns. These officers are, as a general thing, civil engi- 
 neers, holding commissions as such, and are under the govern- 
 ment public works bureau. 
 
 The maintenance of all private works bordering upon, or in such 
 streams, and calculated to affect them as navigable channels, or 
 as natural drainage ways, is subject to conditions imposed in terms 
 of the gra,nts of privilege, and subject to the general and particu- 
 lar regulations of the administration, as executed by the officers 
 of the hydraulic service. 
 
SUPER VISION OF WORK'S AND RIVERS. 95 
 
 Works of navigation, are, of course, maintained and operated 
 solely by the government, the tolls on navigation, which are very 
 low indeed, defraying these expenses. 
 
 Works built on joint account of state and private enterprise, are 
 maintained and operated under government direction, at joint cost 
 according to prefixed agreements, or as may be equitable under 
 the circumstances, or, again, as may be customary from ancient 
 times. 
 
 Works solely for the benefit of private interests are maintained 
 under administrative supervision, at the expense of the owners, 
 and if the work of maintenance is not properly and promptly 
 done, the administration, if public or communal interests are 
 threatened from negligence or faulty construction, may carry it 
 out at the expense of the owner or responsible party. 
 
 Cleansing or Dredging of Channels} 
 
 Besides the special and local operations of maintenance appli- 
 cable to works on the streams, there is the care of and cleansing 
 or dredging of the channels themselves, and the police of their 
 banks. The necessity for cleansing the channels of water-courses 
 in France arises largely from natural causes, such as abrasion 
 of stream banks and denudation of lands; but artificial causes, 
 such as deposits from boats, and from the shores by the inhab- 
 itants, by towns, and industrial establishments of all kinds, con- 
 tribute largely to the results. The dams built in the channels for 
 the promotion of slack water navigation, or for the creation of 
 power heads for manufactories, or for whatever purpose, prevent 
 the scouring of the beds, and serve to cause deposits of sediment 
 and filth that otherwise would be carried away by the currents. 
 
 Upon navigable and raftable channels, of which the beds and 
 banks are public property, the clearances are made chiefly at the 
 expense of the state. When the dams on such streams are used 
 to create water-heads for power purijoses, as well as for naviga- 
 tion, the holders of the water rights are called upon to pay part 
 of the expense. When the administration believes that the clean- 
 ing work is necessary only in the interest of navigation or raftage, 
 its cost is borne solely by the government. When the clearings 
 are necessary solely in the interest of public health, and are made 
 necessary by the deposit of filth in the channel, from towns, resi- 
 
 ' See, De Passy, pp. 323-328; also, Dumont. 
 
96 FRENCH JRRIGA TION LEG I SLA TION. 
 
 dences, and establishments on the banks, the expenses are charged 
 for the most part to the riparian owners and the towns, and in a 
 small degree tp the state and the manufacturers whose dams in- 
 crease or favor the deposits. Such cleansings are ordered by the 
 superior administration, which determines the basis of the work 
 and the distribution of expenses, on the reports of the engineers 
 and local administrative ofl&cers. 
 
 Upon non-navigable and non-floatable water-courses which have 
 not been declared to be dependencies on the public domain un- 
 der article 538, civil code, and which have not been improved in 
 the interest of navigation, the expense of cleaning and caring for 
 the channels is borne principally by the riparian land owners, as 
 will be seen in the next chapter. 
 
 Police of Streams} 
 
 Works erected and acts committed in the channels or on the 
 banks of non-navigable or non-raftable water-courses, when they 
 present no obstruction to free flood-flow, as they only give rise to 
 questions between private interests or individuals, are subject 
 only to regulation by the law as administered by the courts. In 
 these cases it is necessary only for the administration to examine 
 the project with the view to determining whether or not the stream 
 channel or the public interests are likely to suffer, or the flood 
 plane likely to be affected by its results. A^'orks located upon 
 navigable or raftable streams when not duly authorized by the 
 administration, constitute infringements of the laws of the com- 
 mission of public ways, and are subject to repression by the 
 council of prefecture. 
 
 The legislation in the matter of police of public water-courses 
 and canals is found in the judgment of the council of state of the 
 king, dated twenty-fourth June, 1777, confirming and completing 
 former rules, notably those of forests and waters, dated August, 
 1669. The various articles of the judgment of 1777, specify the 
 penalty attached to each kind of offense enumerated. 
 
 Besides this old general law, there still exist in force a number of 
 ancient special enactments applicable to the principal rivers and 
 to certain navigation canals, emanating from the king in council 
 of state, from the governors of provinces, and from other author- 
 
 1 See, De I'mssv, pp. 323-334, and elsewhere; also, Dumont, De Buffon, and 
 Jialapert. 
 
SUPER V/SIOA' OF IJ'ORA'S A.VI) RIVERS. 97 
 
 ities who under the ancient regime exercised the ruling power. 
 Other ruling enactments on this subject bear dates subsequent to 
 the revolution, but none of them are of recent origin except that 
 of twenty-third March, 1S42, although there are many decisions 
 under these laws that interpret and modify their application. 
 
 The penalties fixed in the old laws were very severe in propor- 
 tion to the offenses to which they were attached, and the councils 
 of prefecture, in the administration of the laws, had no alternative 
 but to apply them in full \-igor, for the mitigation or repression of 
 such penalties could only be authorized in each particular case on 
 an appeal to the chief executive power of the council of state. 
 The law of 1842 gave to the councils of prefecture the authority 
 to gauge the penalties to the offense in each case according to cir- 
 cumstances, between 16 francs (^3 20) as a minimum and 300 
 francs (!f60) as a maximum for ordinary oflFenses. 
 
 Works having a direct effect to the detriment of public interests 
 may be summarily removed on the order of the prefect, and for- 
 merly unauthorized works on public water-courses, whether inju- 
 rious or not, could be similarly disposed of without delay. But 
 now in cases where no injury is done or immediately threatened, 
 a delay for a reasonable time is granted to give the owner of the 
 works time to appeal to the superior administration for a proper 
 authorization for his enterprise. The execution of all laws gov- 
 erning the poHce care of public streams in the interest of the 
 public, whether protecting na\'igation or other particular mterest, 
 is left to the prefects of departments. But a large class of cases, 
 where the laws have to be interpreted, and where private interests 
 are affected, find jurisdiction before the courts. 
 
 Water PrirUegc Rents} 
 
 Everv concession of a water pri^-ilege on streams of the public 
 domain is subject to the charge of an annual rental which goes 
 into the general treasury of the state for the benefit of the public 
 works.^ 
 
 In the case of water-heads for manufactories, the rent is based 
 upon the purchasable value of the gross power conceded, inde- 
 pendent of any special advantage which the grantee may get 
 from it, and of the kind of emplo^^uent to which it may be de- 
 
 ' See, De P.t^sv, pp. 30:>-3<.l7. 314-316, and elsewhere: also, De Buifoii. 
 - Financial Laws. June li\ 1S40; Julv 14, 1S>1\ 
 
98 FRENCH IRKIGA TION LEGISLA TION. 
 
 voted. The rate of rent for a manufactory water-power head is a 
 sum per annum equivalent to one two-hundredth of the purchas- 
 able value of the motive power measured in horse-power. The 
 purchasable value of the horse-power is determined by precedents 
 on the stream in question, and on other similar streams where 
 water is used for like purposes. 
 
 Water privilege rents for irrigation works are rated upon the 
 basis of the increase in yield due to irrigation, and are fixed at a 
 sum annually paid, equivalent to one tenth of the increase in 
 value of produce on the irrigated land, over its produce before irri- 
 gation. 
 
 Industrial purposes include all the purposes of manufacturing, 
 except that of creating motive power by means of water-wheels; 
 thus water for making steam, for condensing steam, for the use of 
 paper mills, sugar refineries, tanneries, bleaching works, cloth 
 printing works, etc., is ranked as used for industrial purposes. 
 Whether taken by means of pumping machinery or not, if the 
 volume of water in any instance drawn directly from a public 
 stream for an industrial use is sufficiently large, in proportion to 
 the supply at any season, to sensibly affect, or, in the opinion of 
 the engineers of the administration, injure the normal regime of 
 the stream, the water privilege is ranked with those for water- 
 power purposes. For all concessions of water for industrial pur- 
 poses, the basis of annual rental is a fixed sum which is adjudged 
 for each particular case, the minimum being one franc and an 
 additional ten centimes per cubic metre or fraction thereof of 
 water taken per day. 
 
 Water-heads for municipal domestic purposes are governed by 
 the same rules as those for industrial purposes.^ When the object 
 of the works is simply the supply of domestic requirements, ^\ith- 
 out revenue being derived by the sale of the water to consumers, 
 the rent is fixed at the nominal sum of one franc (20 cents) per 
 year; the object being merely to assert and maintain the right of 
 the state to regulate and control such matters, ^^'hen the intent 
 of the grantee, whether a town or a company, is to sell the water 
 to consumers and derive a revenue from it, the case is ranked as 
 an industrial use, and in addition to the fixed amount of one 
 franc, a charge of ten centimes per cubic metre (35 cubic feet) of 
 water drawn daily, is imposed. 
 
 1 Decrees March 2.5, 1872; April 13, 1861. 
 
SrF£JfFISJOA^ OF JVO/^A'S AXD RIVERS. 99 
 
 The amounts of all annual rentals are based on the reports of 
 the government engineers as to volumes diverted and according 
 to gaugings and i-ecords, and when a gauging is made and a record 
 is kept, the grantee is obliged to assent to its correctness, or at the 
 time show it to be erroneous.' Back rents for water can be col- 
 lected for five years, but recovery for a longer period of time is 
 debarred by a statute of limitations. All questions as to rates for 
 rents are considered by the ministers of public works and of 
 finance, conjointly. 
 
 "Without meaning in any way to limit the duration of water con- 
 cessions, the rents are re\-ised every thirty years, for, although 
 revokable at any time, water-right concessions on public streams 
 are given for an indefinite time, and in most cases practically for 
 ever. Any other system would be opposed to the development of 
 industrial prosperity. Water pri\dlege heads held in private con- 
 trol pre%-ious to the edict of 1506 declaring the inalienability of the 
 public domain, are free from the charge of rents, as are also those 
 whose holders have titles derived by pm'chase from the govern- 
 ment. 
 
 AUTHORITIES FOE CHAPTER III. 
 
 /)i/Mioi>t— [Work cited :\s an aiithoiitv for Chaiiter II.T See Book II. Chaiiters 
 
 I, II, and III. 
 
 Dt Passy. — [Work cited as an authority for Chapter II.] See pp. 7-11; supple- 
 ment, pp. 297-331. 
 
 MataperU — [Work oited as an authority for Chapter II.] See the headings, " The 
 Actual Republic," and " Engineers," 
 
 De Biiffoi). — [Work cited as an authority for Chapter II.1 See, ffenerallv, Vol, 
 
 II, Rait 11. 
 
 I}echis. — [Work oited as an authority for Chapter II,] See, generally, descrip- 
 tions of France. 
 
 Bebauve. — Vol, XIX. [Work cited as au authority for Chapter II.] See, gener- 
 ally, description of river works and systems. 
 
 Les Annalf^ des Pmit.i el Chaitssfe^. — A semi-oflScial publication of the French 
 Government CorjDS of Civil Engineers; comprising volumes of Tech- 
 nical or En.gineenns; matter, and others of Laws and Decrees relating 
 to Public Works and the Engineering Service, generally (French), See 
 late volumes, and, particularly, Vol, CXXVI, pp, 451, it svq. 
 
 ' Decree of the Minister of Finance, May 15, 1863, 
 
100 
 
 FRENCH IRRIGATION LEGISLATION. 
 
 CHAPTER IV,--FEANOE'''; 
 
 WATEE-EIGHTS ON, AND THE ADMINISTEATION OP ITGIT- 
 NAVIGABLE STEEAMS. 
 
 Section I.— Rights to the Use of Water. 
 
 Water-rights previous to the time of the Code Napoleon. 
 Riparian Water-Rights under the Code. 
 
 Nature of the Riparian right, and tendency of interpretations. 
 The right of Irrigation— absorption of water, etc. 
 
 Section 11.— Supervision of Construction of Works. 
 
 Decentralization of the Administration. 
 Powers and Duties of Local Administrations. 
 Applications for sanctions to construct Works. 
 Obligations and Conditions attached to Permits. 
 Construction and Regulation of Dams and Headworks. 
 
 BsCTio^lll.— Regulation and Operation — Worlcs and Waters. 
 
 Necessity for Regulations and Administration. 
 
 Administrative Authority to make Regulations. 
 
 Principles adhered to in making Regulations. 
 
 General Rules as to Division of Water Supply. 
 
 Regulations of Irrigation. 
 
 Division of Waters between Claimants. 
 
 Regulations for Streams. 
 
 Police and Cleansing of Water-Courses. 
 
 SECTION I. 
 
 Rights to the Use of Water. 
 
 Water-Rights Previous to the Time of the Code Napoleon} 
 
 As we have seen, streams not navigable nor floatable — those 
 upon which tolls could not be collected for navigation or rafting 
 facilities, or heavy rents derived from ferrying franchises — having 
 been claimed and controlled, together with all other water-courses, 
 by the feudal counts during the early centuries of modern ages, 
 
 ' See, particularly, Dalloz, Vol. XIX, pp. 312-319, and Dumont; also, De Passy, 
 and Malapert. 
 
WATER-RIGHTS ON SMALL STREAMS. ]0] 
 
 were also included in the property-right claim of the kings, and 
 originally contended for by them against the coiuits ; but in the 
 course of time the struggle was made only for the control of the 
 larger water-courses, from which revenues could be derived, and 
 those of the smaller class were left to the owners of the lands 
 adjoining them. Matters appear to have rested in this way for a 
 long time ; the exclusive right to water, for milling and irrigating 
 purposes, from streams too small to be regarded by the kings as of 
 public importance, according to the standard of the times, being 
 accorded to the owners of the bank-lands, apparently upon the 
 ground that they owned the beds and waters as well as the banks. 
 In later years, when it was found necessary in the public in- 
 terest, and to rid the courts of a vast volume of litigation, for the 
 government to supervise the placing and maintenance of struc- 
 tures in such channels and the diversion of their waters, it ap- 
 pears to have become recognized that the waters were in reality 
 a common property, and that the bank proprietors had only a 
 right to use them and not a right of ownership in them. Still 
 there was the open question, to whom were the waters a common 
 property: the riparian proprietors claimed to be the owners in 
 common of the waters of each stream, and submitted to the 
 control of the streams by the government only as it was based 
 upon the general police authority of the nation; while the gov- 
 ernment asserted its right to control, not only because of its gen- 
 eral police powers, but because of the fact that the waters were 
 really the common property of the whole people and not of the 
 riparian proprietors alone, and that public interests were to be 
 promoted as well as other private interests guarded by it, and 
 that, hence, its mission was one to promote public utility as well 
 as to repress or prevent abuse of private privileges, by the protec- 
 tion of other privileges. 
 
 Conflicting Interests on the Streams. 
 
 The continued and growing abuse of the riparian water-right 
 privilege brought about an increased necessity for upholding this 
 latter view, so that from having been a governmental adminis- 
 trative measure it became a popular sentiment, and owners of 
 lands not riparian to the streams asserted a right to waters for 
 their irrigations, on the ground that such waters were a common 
 property of all the people; and claimed that the riparian owner's 
 
102 FRENCH IRRIGA TJON LEGISLA TJON. 
 
 privilege of using them was not an exclusive privilege, but that 
 upon a grant or permit from government, any land owner could 
 divert them for use on his lands. In this view of the case by far 
 the greater number of land proprietors were interested, so that 
 the governmental policy of control was strongly upheld. 
 
 But now, manufacturing interests, -which were widespread and 
 becoming powerful, took alarm. The owners of the hundreds of 
 mills and manufactories depending on water supply for power and 
 other purposes, scattered along the streams all over France, and 
 holding rights, many of them dating back in the times of the 
 counts, and all valuing the riparian right as a protection to their 
 water supply, were arrayed against the advancing theory — of the 
 waters belonging to all the people and due to all for use. The 
 government from time to time brought to face the question in 
 deciding points at issue, continued to uphold the theory of the 
 waters of these small streams being a common property of all the 
 people, and framed its own measures accordingly, but no step was 
 taken to accord land owners other than riparian proprietors any 
 right to use them. 
 
 Riparian Water-Rights under the Code} 
 
 The case appears to have stood in this way when the Code Na- 
 poleon was promulgated in 1804. This code contained provisions 
 (articles 713, 714) which in course of time were recognized as 
 placing the ownership of the waters of the smaller class of streams 
 in the nation, but, at the same time, declaring the use of things of 
 this class to be common to all. Left with this provision only, the 
 waters of these streams would have been thrown open to use by all 
 the people; "the laws of police regulating the manner of enjojdng 
 them," as the code said. But article 644, under the head of serv- 
 itudes, seemed to place a special servitude (right to use) on these 
 waters for the benefit of riparian estates. It reads as follows : 
 
 " He whose property borders on a running water, other than that 
 which is declared a dependency on the public domain by article 
 538, under the title ' Of the Distinction of Property,' may employ 
 it in its passage for the watering of his property." 
 
 " He whose property is intersected by such water is at liberty to 
 make use of it within the space through which it runs, but on 
 
 1 See, particularly, Dumont, pp. 171-208, and De Passy; also, DaUoz, Vol. 
 XIa, pp. 379-390. 
 
WATER-RIGHTS ON SMALL STREAMS. 103 
 
 condition of restoring it at the boundaries of his field to its ordi- 
 nary course." 
 
 The provisions of this code have given rise to many questions, 
 or rather to the old questions in new forms, accompanied by an 
 infinite number and variety of side issues. The old question as to 
 whether or not the riparian water-right privilege was an exdusivc 
 right, was still left open and with additional complications. The 
 government had its hands strengthened in its policy of control 
 and regulation, and the fundamental principle contended for by 
 the owners of lands not riparian to the streams, as well as by the 
 government, was recognized. 
 
 But riparian proprietors claiming and being, in some cases and 
 under some circumstances, allowed ownership of the beds of the 
 streams, still claimed ownership of the waters by virtue of article 
 552. which reads : '' Property in the soil imports property above 
 and beneath.'' And a stand was thus made hy riparian interests, 
 on the point that as the waters of the streams rested on their lands, 
 they belonged to them, and, hence articles 713 and 714, about 
 "things which belong to no one," had no application to them. 
 Article lU5 provided expressly for the settling of disputes which 
 should arise under the preceding article, at least, in the follow- 
 ing language : 
 
 "If a dispute arise between proprietors to whom such waters 
 may be useful, the courts, in pronouncing their judgment, must 
 reconcile the interest of agriculture with the respect due to prop- 
 erty; and in all cases, particular and local regulations on the 
 course and use of waters must be observed." 
 
 Under this article all questions as to rights to use waters from 
 non-navigable and non-raftable streams have been carried before 
 the courts, and these have not directly recognized the claims of 
 the back land owners, thus leaving the riparian proprietors in 
 possession of the field. Appeals have been then taken to the 
 central administrative authority to exercise its power in behalf of 
 the land interest which had always in the past sustained its acts 
 and theory of public ownership and government control of the 
 waters. But the administi-ation has consistently replied to these 
 appeals that, under article 645, it had no jmisdiction in this class 
 of cases: that the courts were the only resort of those claiming 
 water in this class of streams, in which to make good a claim. 
 
104 FRENCH IRRIGA TION LEGISLA TION. 
 
 The Riparian Water-Right and the Right of Way} 
 
 Another point which for a long time was in favor of the riparian 
 proprietors, was the fact that there existed no law under which a 
 back land owner could get the right to conduct water over the 
 property of those between him and the stream, even though he 
 had the right to it, and no law under which he could get the right 
 to abut a dam against banks belonging to others, even if he could 
 get the right of way by amicable purchase, and the water also; and, 
 furthermore, the administration could not grant such privileges. 
 
 Companies or syndicates contemplating extended irrigation en- 
 terprises were granted water privileges and the right to construct 
 works by decrees of the central administration, and their works 
 being declared of public utihty, they were authorized to condemn 
 by process of law the right of way for their main canal. But no 
 single land owner, and no enterprise not declared to be of public 
 importance, could get right of way, except by private negotiation. 
 
 In 1845 a law was passed giving any land owner the power to 
 secure as a servitude, over lands not his own, the right of way to 
 conduct waters to which he had a right of use. This was osten- 
 sibly in the interest of riparian proprietors who had to take water 
 out of the streams above their own lands to get it high enough to 
 conduct on to them. But it was also a step in the direction of 
 the theory of the back land owners. 
 
 In 1847 a law was passed giving the owner of one bank a right 
 to abut his dam against the bank owned by his opposite neighbor, 
 under certain regulations and administrative sanction, etc. This 
 also was a step towards breaking down the exclusiveness of the 
 riparian right to the stream. Until within the past few years a 
 riparian proprietor, upon the basis of his claim of ownership of 
 the banks and bed of a stream, so far controlled the channel, as 
 against other private individuals themselves also riparian pro- 
 prietors, as to deny the right to construct a dam below in such 
 manner as to back the water up into the channel opposite his 
 land, even though there was no apparent material injury to him 
 caused thereby. 
 
 But now the court of cassation, at the head of the judiciary of 
 the country, and the council of state, at the head of the advisory 
 department of the executive branch of government, have each 
 
 1 See, particularly, Duraont, pp. 225-256, 259, 280; De Passy, Dalloz, 
 
WATER-RIGHTS ON SMALL STREAMS. 105 
 
 decided that " the fall or slope of a channel is not the property 
 of the land proprietors, and that it enters into the class of things 
 which by the terms of article 714, Code Napoleon, do not belong 
 to anybody, of which the use is common to all, and of which the 
 enjoyment is regulated by the police laws;" and the administra- 
 tion grants a proprietor the right to back water into the channel 
 in front of lands above him, by means of his dam, so long as he 
 does not injure or endanger the lands in anyway, take away from 
 the efficiency of other works above, or endanger the public in- 
 terest. Here again was a step towards the abolition of the exclu- 
 sive and complete riparian control of the stream, and a movement 
 towards a declaration of public ownership of the channels them- 
 selves. 
 
 And thus the matter stands. The riparian proprietors still 
 monopolize, to the extent of their necessities for all purposes, the 
 right to use the waters from streams of this class. In this re- 
 spect they have an exclusive and complete right as against all 
 comers, except " public utility," " public health," and " national 
 welfare," and except in cases where there is a surplus of supply 
 over and above enough for their necessities, in which case the 
 government undertakes to dispose of such surplus. 
 
 " To exercise the right of irrigation, it is necessary to be a ripa- 
 rian proprietor. If, then, a water-course comes to change its bed, 
 the ancient proprietors, who are no longer on the new bed, no 
 longer preserve upon it the right of taking water for irrigation, 
 nor, consequently, of making constructions destined to conduct 
 the waters upon their properties." — [Dalloz, Vol. 40, word " Servi- 
 tudes." 
 
 The administration, representing the whole people and the na- 
 tion, by virtue of its police powers and its guardianship of public 
 property and public weal, exercises a control over the streams, a 
 regulation of all works placed in the streams, and a surveillance 
 of all use made of the waters. 
 
 Nature of the Riparian Right, and Tendency of Interpretations} 
 
 The nature of this riparian right to water on non-navigable 
 streams in France may be a little difficult to comprehend. It 
 
 1 See, particularly, De Passy, pp. 23, 24, Dumont, pp. 171-208 ; also, Dalloz, Vol. 
 XIX, pp. 379-390, and Les Annates des Fonts et Chaussies, Vols. Laws and Decrees 
 (recent). 
 
106 FRENCH IRRIGA TION LEG I SLA TION. 
 
 is so far a right to have the water left in the channels that the 
 administration (on the ground of "police regulations," "sanitary 
 provisions," or "public utility") may refuse to sanction the con- 
 struction of a work for diversion, which has not proper provision in 
 the way of sluice-gates to let water enough go on down stream, at 
 the driest times, for domestic purposes of all bank owners below; 
 nor Will it at all sanction the construction of a dam, when it 
 clearly appears that owners below will be deprived of needful 
 Water by its effect, although the projector be a riparian proprietor 
 and has a right to water under the code. 
 
 And yet, 'there is no element of the principle of prior appropri- 
 ation—first in time first in use— about this right. The code dedi- 
 cates these waters to the use of him "whose property borders on," 
 or, "whose estate is intersected by such waters." It is only in the 
 regulation of affairs by the courts and the administration that any 
 recognition of priority of right is found, and even then, in the 
 supervision of the use, the principle is not closely adhered to. 
 
 The code merely gives every riparian owner a privilege of using 
 the water. There was no direct recognition and confirmation of 
 old and established rights in this connection, although many such 
 existed ; nor any rule laid down except that "in all cases partic- 
 ular and local regulations on the course and use of waters must be 
 observed," and that "the interest of agriculture" must be recon- 
 ciled "with the respect due to property." 
 
 And yet this riparian privilege is so far a right to take water out 
 of the stream, that, though fully used, the courts can recognize a 
 right for a new water privilege, and the administration may sanc- 
 tion the works necessary for availing of it, and, in the course of 
 the division of waters, the new work will get its share. This rule,, 
 however, would not be carried so far, presumably, as to deprive 
 any prior user of water, of all he actually required to accomplish 
 his purpose, but it would force him to economize in his use. No 
 matter how old a privilege may be, the administration, in the pub- 
 lic interest, has always the right to turn sufficient water past the 
 dam to satisfy the personal wants of proprietors below, and thus 
 guard against unsanitary results ; and it can even compel the con- 
 struction of a sluice-way in the dam, to be used for this purpose. 
 
IVATER-RTGHTS ON SMALL STREAMS. 107 
 
 The Right of Irrigation — Absorption of Water, etc' 
 
 For many years after the promulgation of the code it was held 
 that the obligation imposed upon the riparian proprietor of "restor- 
 ing it (the water) at the boundaries of his field to its ordinary 
 course,"' after use, as set forth in the second paragraph of article 
 644, applied as a condition to all use of water allowed by the arti- 
 cle, and, hence, there could be no material loss b}- absorption in 
 irrigation. The irrigations in France at that time were very gen- 
 erally those of meadow lands situated closely along the stream 
 borders, and a verj' large proportion of the waters led on to them 
 flowed off again. 
 
 The court of cassation (Supreme Court of France), in 1S44. 
 August 21, rendered a decision on this point as follows: 
 
 " Rimning water is regarded by the law as a common property. 
 Riparian proprietors on a water-course naturally have equal rights 
 to the use of the water, although they cannot exercise this right 
 simultaneously. If on account of the advantage of its topographi- 
 cal position the proprietor of higher land on a stream, exercises 
 his right before the proprietors of lower lands, he is not the less 
 obliged by this position after having used the waters, in the inter- 
 est of agricultiure and industry, to retm-n them to their usual bed, 
 in order that the proprietors of lower lands may use them in their 
 turn. 
 
 " When the proprietor of the higher land possesses at the same 
 time both banks of the stream his right is more extended : he can 
 then turn the water-course from its bed within the extent of his 
 doniain, and take the waters for use where he wills on his estate, 
 being obliged to return them to their ordinary course where it 
 leaves his property'. This proprietor will not have to return the 
 same quantity of water which he has received, or any certain 
 quantity of water determined, but he must economise and use 
 water in a just measure so that the proprietors of lower lands may 
 exercise their rights also." — [Decision — August 21. 1844. 
 
 Again, in a decision rendered in 1S47. the same court decided 
 that an upper proprietor, no matter how extended his estates on 
 both banks of a stream, had not the right to absorb all the water 
 on his lands, to the detriment of a lower proprietor, and that the 
 lower proprietor had a right to a regulation whereby he would be 
 
 ' See, Bumont, De Passy, and DaUoz, as already cited; but particularly, late 
 volumes of Laws and Decrees of Les Annates des Fonts et Chatiss6es. 
 
1 08 FRENCH IRRIGA TION LEG I SLA TION. 
 
 assured a part of the supply, in accordance with his needs and 
 rights as adjudged by experts.' 
 
 Tlie Question, one for Equitable Administration. 
 
 De Passy, writing in 1878, and a semi-official book for the infor- 
 mation of the members of the national hydraulic service, as well 
 as for general sale, says: 
 
 "An obligation on the irrigator to return the water when it 
 leaves his lands, to its natural channel, does not result from article 
 644 of the Code Napoleon. That article comprises two paragraphs, 
 distinct and independent from each other; the first regulates the 
 right of irrigation, which may be exercised by the proprietor of 
 one bank ; the second recognizes in the proprietor of both banks 
 more extended rights, such as industrial use, etc.; and it is as a 
 restriction on these last rights, and in the second paragraph only, 
 that is written the obligation to return the water upon its exit 
 from the lands traversed, to the natural channel." — [De Passy, 
 p. 50. 
 
 As a matter of fact, the streams are controlled, and the waters 
 apportioned out to those who have claims on them, by adminis- 
 trative regulations. Economy in their use is enforced, according 
 to the experiences of the country; so that the question is kept out 
 of the courts more than it used to be, and the courts recognize the 
 fact that they can make no decision that can settle the point on 
 principle, or even in any particular case, for all contingencies that 
 arise. The later decisions are not decisive as to principle; they 
 lean towards the view above quoted from De Passy, speak of 
 " returning the drainage and residue of the waters," only, to their 
 natural channels, uphold ancient customs in the use of waters, 
 but enforce administrative regulations that look towards econo- 
 mizing it, and other measures in the public interest. 
 
 SECTION II. 
 
 Supervision of Construction of AVorks. 
 
 Decentralization of the Administration? 
 
 By an imperial decree made in 1852, and interpreted by a num- 
 ber of decrees of the council of state of later dates, a portion of 
 
 1 Decision— July 8, 1S47. See, Les Annates des Fonts et Chaussies, Laws and 
 Decrees, 1847. 
 '' See, De Passy, preface, and elsewhere. 
 
WORKS ON SMALL STREAMS. 109 
 
 the authority theretofore expressly reserved to the ministers and 
 council of state in matters pertaining to the regulation of water- 
 courses, was delegated to the local departmental administrations.' 
 This transfer of power constituted what is known as the decen- 
 tralization of the administration in the hydraulic service. By it 
 much more responsibility has been thrown upon the engineers, 
 seeing that the scope of their duty has been widened, and some 
 other inquiries being done away with, those which they make 
 must necessarily be more searching, and there being no certain 
 revision of their opinions by a higher central body, their views 
 must be more firmly grounded on good judgment. The law, how- 
 ever, provides a right of appeal from the decrees of prefects and 
 opinions of the engineers, so that parties being aggrieved at a 
 result may take their case immediately before the minister of 
 public works, or even the council of state for revision. 
 
 Powers and Duties of Local Administrations.^ 
 
 The prefects of departments have the power (1) to authorize 
 upon non-navigable and non-raffcable streams, the building of all 
 new works necessary for mills, manufactories, dams, headworks 
 for irrigation, etc. ; (2) to regulate the existence of such estab- 
 lishments where already constructed without formal permit and 
 regulation ; and (3) to modify existing rules concerning such 
 establishments already built. In these cases the prefects act 
 directly, by simple resolution, without the special intervention of 
 the minister of public works, but upon the opinions and advice of 
 the chief engineers of the departments, and in conformity to the 
 general ministerial regulations and circulars of instructions.' 
 
 They also have the authority to carry out ancient rules and local 
 usages in the matter of the division of waters, from streams of this 
 class, between the various interests employing them.* But in the 
 absence of ancient rules and local usages to serve as a basis for 
 such prefectorial regulation of the division of waters, and especially 
 between antagonistic interests such as manufacturing and irriga- 
 tion, the prefects have not the authority to act, but such regulations 
 must emanate from the council of state by decree .° Hence, the 
 
 » Decrees— :SlaTch 25, 1852; AprU 15, 1861; August 23, 1867; March 18, 1868. 
 iaui— June 21, 1865. 
 2 See, De Passy, pp. 14, 15, 60-68, 73, and elsewhere. 
 •'' Decree— March 25, 18.52. 
 ' Decree— April 15, 1861. 
 » Decree— August 26, 1867. 
 
110 FRENCH IRRIGATION LEGISLA TION. 
 
 prefects can authorize the works necessary for an establishment, 
 but cannot, in apportioning water to it, alter or amend existing 
 regulations concerning the division of waters, so as to affect the 
 interest of others, or the public interest, or change " local usage" 
 in this regard, to the prejudice of third parties, unless there is 
 in existence some " ancient rule" applicable to the case which 
 authorizes the setting aside of such " local usage" by the prefect. 
 
 Nature of the Power held by Prefects} 
 
 The authority of the prefects in the matter of regulating water- 
 courses and waters is confined to the authorization of works, and 
 to the execution and adjustment of details of decrees regulating 
 the distribution of waters, and the application of ancient rules 
 and local usages. The first power is that of authorization, all the 
 others are in the nature of police powers. Hence, except in the 
 one class of cases mentioned (tlie authorization of works on non- 
 navigable water-courses) , all the regulative measures of prefects 
 are based on police powers, and limited by the ideas of public 
 safety and welfare to be attained by such measures. The police 
 power is not to be confounded with the power of authorization. 
 The right to adopt and carry out measures in the interest of 
 public health, a police measure, for instance, has always belonged 
 to the prefects.' 
 
 " The nature of police measures consists solely in securing a 
 respect for the public interest, in calling on each person for the 
 execution of his obligations, for the cause of the right and the 
 good of all."— [De Passy, p. 70. 
 
 The original declarations of authority, under which these pow- 
 ers of regulation are exercised by prefects, is found in laws of 
 1790 and 1791, and a resolution of 1799. The first law charges 
 the administrations with the duty of " seeking and indicating the 
 means of procuring the free course of the waters of streams, with 
 a view of preventing the plains from being submerged by the too 
 great elevation of milldams and of other works established on the 
 rivers, and of directing, in fine, all the waters of their territory 
 towards the one object of general utility in accordance with the 
 principles of irrigation." 
 
 The second law imposes upon the departmental administration 
 
WORKS ON SMALL STREAMS. 1]1 
 
 the duty and authoritj'^ to fix the height to which dams may be 
 built in streams, so as " to hold the waters at a height which does 
 not injure any one," or in any way " interfere with the public 
 interest or convenience." 
 
 And the third law delegates " to the administrations of depart- 
 ments the power of taking all the necessary steps to prevent 
 waters being turned from their natural courses by works of di- 
 version, simple ditches, or otherwise, without previous authoriza- 
 tion; and, also, the power of seeing that dams, embankments, and 
 other works do not exceed the level which will have been fixed 
 for each." ^ The dutj' of prefects in this connection is sufficiently 
 apparent from that which has been said respecting their author- 
 ity and power, and from what is said under subsequent headings 
 in this chapter. 
 
 Applications for Sanctions to Construct Works.'' 
 
 In cases where water is to be taken from a stream without con- 
 structing a dam, by a simple cut in the bank, with a headgate, 
 permission from the administration to construct the work is not 
 necessary, for it can only interfere when the flow of the stream is 
 to be checked by a dam,' but the owner of the proposed structure 
 must establish in the courts his right to water, if this be con- 
 tested, and the construction afterwards comes under the super- 
 vision of the administration in carrying out regulations for all 
 diversions and uses on the stream. But in the interest of the 
 public the administration may cite parties proposing or execut- 
 ing such works to appear in court and prove their right to water 
 and that they will not destroy interests already grown up. 
 
 Whenever a work is to be constructed in or on the bank of a 
 non-naYigable stream, which will or may affect its regime as a 
 drainage way of the country, or which may directly affect the 
 common rights or public utility subserved by the stream, sanc- 
 tion of the plans and project must be had from the departmental 
 authorities. Application must be naade to the mayor of the com- 
 mune, the sub-prefect or the prefect, for the permit, and this 
 application must be accompanied with a plan of the proposed 
 work, a statement as to its purpose, etc. 
 
 ' Resolution of the government, 19th Ventose, year 6. 
 ^ See, particularly, De Passy, supplement, and Ch. I ; also, Dumont. 
 ' The latest regulations ol the administration conflict with this doctrine. 
 See Article 6 of the form of regulations at end of this chapter. 
 
112 FRENCH IRRIGATION LEGISLATION. 
 
 The mayor publishes this application by posting it as directed 
 by regulations. He hears and records the substance of all com- 
 ments or objections, and he transmits the statement of the case to 
 the sub-prefect. This authority after consideration reports the case 
 to the prefect, who submits the question to the departmental engi- 
 neer on the special service. 
 
 The engineer examines the matter to see that the works are 
 such as will not bring harm to the stream, and in conformity to 
 general regulations. He may prepare other plans to effect the 
 same purpose, and recommend them in place of those contained 
 in the application. These results with his opinion are reported to 
 the prefect, who may order a further investigation of the whole 
 matter by the sub-prefect, or may thereupon act by granting or 
 refusing the application. 
 
 To every such permit conditions are attached, binding the 
 grantee to construct the work according to plans or to modifica- 
 tions thereof, to be approved by the local administration, and 
 binding him to submit to local regulations in the management of 
 the affairs of the stream, and to keep his work in repair. 
 
 Determining the Legal Height of Dams} 
 
 Dams for water-power purposes, and intended to hold the water 
 at all times materially higher than the bed of the stream, are put 
 in solidly from bank to bank, up to the least height at which it is 
 necessary to hold the water for the purpose required, when the 
 bank-lands above are sufficiently high to be well above the flood 
 plane as necessarily raised to higher levels by the effect of the 
 dam. But when these lands are not naturally high enough to 
 admit of so high a flood plane, the top portion of the dam, for such 
 height and length as may be necessary in each case, is made 
 removable, automatically or otherwise, so as to admit free pas- 
 sage of floods through the weir thus opened, without their rising 
 above a certain safe elevation in the reach above the work. These 
 weirs can but seldom be dispensed with. 
 
 In the issuing of permits for the construction of water-power 
 dams on non-navigable and non-floatable streams, it was, until 
 within the past fifteen or twenty years, the rule to restrict their 
 heights so that the backset of waters would be confined to the 
 
 1 See, particularly, De Pasay, pp. 19. 23-25, 28, 51, and elsewhere; also, Dumont. 
 
WORKS ON SMALL STREAMS. 113 
 
 limits of the lands owned by the proprietors of the work, upon the 
 theory that the bed of the stream was private property, and noth- 
 ing could be done to aft'ect it without permission from its owner. 
 But the supreme court of France, and the council of state, have 
 finally determined that "the fall of a stream of this character is 
 not the property of the land proprietors, but that it enters into the 
 class of things which, by the terms of article 714, Code Napoleon, 
 do not belong to an3^body, of which the use is common to all, and 
 of which the enjoyment is regulated by the laws of police," and 
 hence the administration sanctions works which cause water to 
 be held back in the channels through properties above, so long as 
 neither these lands nor other works are thereby injured. 
 
 In cases where it is necessary, in order to get head sufficient for 
 the intended purpose, and at the same time guard against over- 
 flowings of land above, the administration is authorized to provide 
 for the necessary levees on each side of the stream above the dam, 
 to be built at the expense of the owner of the dam ; all costs, 
 charges, and damages being met by him. 
 
 Tlie legal height ha^ing been determined for a dam, as a mat- 
 ter of record, and for reference at any time, a stone slab or shaft 
 is firmly embedded at some convenient point, near at hand, where 
 it can be conveniently got at,, and so that its top surface is at the 
 elevation of the dam's crest as authorized to be made. Thus the 
 oSicers of the administration, or any one else, may at any time 
 test the fact as to whether or not the dam has been made higher 
 than authorized. This reference monument is an official record, 
 and not to be displaced under pain of severe penalties, and the 
 owner of the dam is responsible for its keeping. 
 
 Construction and Maintenance of Dams and Headworks} 
 
 For convenience in making the proper clearances of the beds 
 of the stream above the dam, and to provide the means for the 
 passage at all times of water in sufficient quantity to satisfy the 
 rights which lower riparian proprietors have, sluice-gates are put 
 in all dams not built removable, at a point near to or at the level 
 of the natural stream bed. Should it appear to a prefect in con- 
 sidering application for permission to put a structure for manu- 
 
 ' See, De Passy, pp. 24, 25, 51-54, and elsewhere. 
 
114 FRENCH IRRIGA TION LEGISLA TION. 
 
 facturing purposes on a stream, that rights of riparian proprietors 
 already availed of would be seriously injured by it, he has author- 
 ity on this ground to refuse the permit— the waters being already 
 fully utilized and required for use under the code. The courts 
 may order otherwise, however. 
 
 Permanent dams for diversion of waters for irrigation must be 
 removable down to the plane of the natural bed of the stream, 
 for a length as great as the natural width of the stream between 
 banks when cleaned out, and cannot be used for power-head 
 purposes, and be kept closed all the time. The movable portion 
 must be composed of shutters which fall flat on to the bottom, of 
 gates which may be raised above the flood plane, or of stakes 
 ("needles") which can be taken out altogether. 
 
 The crest of the movable portion, like that of the fixed portion, 
 must be adjusted to the plane of the legal height determined for 
 the dam, and its sill must be established at the level of the bed of 
 the stream when at its ordinary plane. Scouring sluice-gates are 
 not required in dams of this character, for the clearances above 
 are effected by opening a portion of the dam itself down to the 
 scouring plane. Closable top weirs are also not required in dams 
 of this kind, for a portion of the whole dam may be used for flood 
 escape.' 
 
 The dimensions and form of the head-gates of the canal, the 
 elevation of their sills with respect to that of the top of the dam, 
 the form and slope of the channels for a certain distance below, 
 are regulated with the view of receiving the full flow of the water 
 from the stream at low stage, when the division among claimants 
 on the stream is made by giving each the full flow in turn at 
 stated intervals, and, at the same time, to properly gauge a much 
 smaller amount, when the division is made by apportioning the 
 supply at once amongst a nvuxiber, or all, according to their rights. 
 
 1 Instructions, October 23, 1851. 
 
REGULATION 0-V SMALL STREAMS. 115 
 
 SECTION III. 
 
 REGrLATTON AXD OpERATIO^J — WORKS AND "WaTEHS. 
 
 Xecessity for Regulations and Advii nUfration.^ 
 
 In early years of social and p>olitical development, the necessity 
 for guarding the common property of all the people is not felt. 
 Each individual is intent on securing his own advantage, and all 
 lose sight of those mutual interests which cannot be segregated 
 and cut off from the common stock as can lands and most per- 
 sonal properties. Water-courses and waters are, by nature, that 
 kind of property which no one can own, yet it has always been 
 the idea in the early stages of the development of a people or a 
 country, that each person might use these common properties as 
 he chose. 
 
 It was so in France. In the struggle for control of the navi- 
 gable and raftable streams, which for centuries went on between 
 the central government of the country and the nobles and the 
 provincial governments, as I have already written, the small 
 streams not raftable were left to the control and use of the ripa- 
 rian proprietors, the government maintaining a nominal and fit- 
 ful sui)ervision over them in the interest of public utility and the 
 protection of navigation interests below. Thus, customs were es- 
 tablished which in com'se of time became flagrant abuses. So 
 long as interests were few and water plenty in comparison to 
 demand, and the stream banks were not much occupied, so long 
 was there no pressing need of regulation other than that estab- 
 lished by local custom and agreement. 
 
 But as time wore on, it was found that the courts were over- 
 whelmed with water-right and other similar litigations. There 
 was a perfect sea of trouble. The more decisions there were, the 
 less were the people satisfied with the results. It was found that 
 water was used in the most extravagant and useless manner, and 
 purposely or carelessly wasted by those who for long periods had 
 enjoyed its control, while others equally well entitled to it origin- 
 ally, were deprived of a participation in its benefits. 
 
 The government was appealed to on all hands to make new 
 laws, and indeed some legislation was brought about by this 
 
 ' See, Dnmont, De Passy, Dalloz, De Buffon, and Malapert. 
 
1 16 FRENCH IRRIGA TION LEG I SLA TLON. 
 
 jjressure and popular clamor. But after awhile it was found that 
 enunciation of principles, and formulation of general laws, and 
 multiplying .of rulings, without judicious and wise application of 
 them according to local and the ever var}dng circumstances, did 
 not effect the desired ends. 
 
 Recognition of the Necessity for Administration. 
 
 In the meanwhile it had become necessary for the government 
 administration, in the interest of the public welfare, to interfere 
 in some of these local quarrelings; and the salutary effect of these 
 interferences becafne known and appreciated, seeing that regula- 
 tion did away with litigation, and that the best was thus accom- 
 plished for all, with the advantages at command. This led to 
 the administration being called on in other cases, to establish 
 special rules and regulations on other streams; and so it has 
 come about that on nearly all streams of any importance as 
 sources of water supply for any purpose, or where their banks are 
 built on, or where they run through municipalities, or are em- 
 banked to prevent floods, there are special regulations applicable 
 to the cases which arise on them each. 
 
 It cannot be said that this system has been always acceptable 
 to the people, or that it has not in places awakened violent oppo- 
 sition ; for there has been opposition to administrative authority 
 and control, and appeal taken to the courts. But the outcome is 
 one of satisfaction with the principle on which rests the system, 
 although, no doubt, the means of its application may not always 
 be acceptable, and the results not always for the best. 
 
 Writers on these subjects of irrigation and drainage and the 
 like, in Prance, with one accord unite in setting forth the neces- 
 sity for a supervision of the affairs of water-courses. Speaking of 
 the diversion of water from, and construction of works in non- 
 navigable streams, M.M. Dumont, being themselves advocates of 
 the rights of riparian proprietors to control such streams, say : 
 
 "An unlimited freedom in this regard would be most dangerous. 
 The privilege would be abused by some to the detriment of that 
 of others, and of the public welfare. We must admit that if there 
 were no regulations, every one could do as he chose, or use such 
 quantities of water from the river as he willed, because of this priv- 
 ilege, and it would engender a veritable anarchy, and even lead 
 to annihilation of law itself. There have been quarrels between 
 irrigators and irrigators, and between these and factories, and these 
 
REG ULA TION ON SMALL STREAMS. 1 ] 7 
 
 rival interests, not regulated, have been completely paralyzed, and 
 all their advantages from a fair distribution of the water have been, 
 in these cases, sacrificed." 
 
 ''Therefore the exercise of the right of diversion from small 
 running streams is and must be subordinated to certain conditions 
 of general interest. In such matters the law cannot foresee all con- 
 tingencies or regulate all cases, for what is good for one river is 
 not good for another, and what is good for one season is not good 
 for another. Hence all latitude and power is given to the admin- 
 istration in the exercise of its duty of improving and regulating 
 the affairs of water-courses, to direct and manage them with the 
 view to general utility, taking cognizance of the principles of irri- 
 gation." 
 
 " The courts themselves are required to conciliate the interests 
 of agriculture with respect due to property, whenever litigation 
 occurs between proprietors on these streams, to whom waters may 
 be useful, and it has been expressly laid down for them that in 
 every case they shall observe all particular and local regulations 
 on the course and usage of water. The administrative regulating 
 power, which is called upon to exercise so great an influence on 
 the prosperity of agriculture, should rule over all water-courses, 
 however small they are, even the waters of a brook fed by an 
 intermittent spring." 
 
 De BufFon has written much in this same strain, and I have 
 heretofore quoted from him, under a former heading, some strong 
 sanngs on the necessity for guards in carrying out regulations on 
 the rivers. In another place, speaking of the bad condition into 
 which channels have fallen for want of regulating their use, and 
 the use of their banks, he says : " In the absence of rules of main- 
 tenance such a state of afi'airs is allowed to grow worse and worse 
 during a number of years, and it will become intolerable, for a 
 great extent of the riparian property will little by little lose its 
 value, and other interests will be lost, because of conflicting and 
 indeterminate claims." 
 
 " This is why a great number of localities are now suffering 
 continually increasing injuries caused by the bad regime of these 
 water-courses, and for that reason, in nearly every locality so 
 affected, complaints are heard and demands made for the adopt- 
 ing of proper regulations and police measures to make An end of 
 such a vexatious state of things. The superior administrative 
 authority is continually solicited to favor the promotion of syndi- 
 cates to act in concert with local administrations to insure the 
 common good from the water-courses." 
 
1 1 8 FRENCH I R RIG A TION LE GISLA TION. 
 
 Administrative Authority to make Regulations} 
 
 The authority of the central administration to make general 
 and particular regulations governing the affairs of non-navigable 
 streams is a power born of the natural necessity for regulation in 
 the use of a property common to all the people, and of the recog- 
 nized duty of government to foster the common interest, promote 
 the general welfare, and protect the public rivers below, by estab- 
 lishing order in and imposing conditions on the diversion of waters 
 from the tributaries above. Hence, the origin of the authority of 
 the central administration is not found in any laws or other enact- 
 ments, but its duties are inferred from the laws and decrees relat- 
 ing to the subject and governing the action of the departmental 
 administrative officers, and which have been already quoted." 
 
 The duties with which we have most concern are those of "seek- 
 ing and indicating the best way of utilizing the waters of all 
 streams in irrigation," and others, which are of police nature, 
 in repression or prevention of individual license exercised to the 
 detriment of common and public welfare. The article 64-5 of the 
 Code Napoleon modifies the power of the administration to inter- 
 fere as between private rights to water on non-navigable streams, 
 by relegating such questions to the courts. But these questions 
 as to right being settled thus, or by long established usage, it 
 remains for the administration to order matters from day to day 
 and year to year, in accordance with the basis thus established, 
 and with the view of the public utility of the streams. 
 
 In cases where, under long established use, rights to definite 
 quantities of water have become settled, the administration can- 
 not do otherwise than recognize these rights, and establish regula- 
 tions for the apportioning of the supply, in conformity with such 
 claims. Should all the rights be not already established by long 
 use, the administration can only propose an apportionment, and, 
 if this is not acceded to by the parties at interest, the case must be 
 adjudicated before the proper courts, and then the administration 
 establishes its regulations on the basis of the court's decree. 
 
 The administration has taken the authority to determine, how- 
 ever, the total volume of water which may be diverted from a 
 stream, for irrigation, as against the demands of navigation and 
 
 ' See, De Passy, Dumont, and Dalloz. 
 
 '' See, "Powers and Duties of Local Administrations," ante. 
 
REGULATION ON SMALL STREAMS. 119 
 
 manufacturing on the river below, and of deciding the dimensions 
 of the head-gates, etc., to take this water, and the periods of time 
 during which it may be taken, and the court of appeals has sus- 
 tained the acts of the administration in this respect, as being 
 equitable and not in excess of authority. 
 
 When rights have been settled by long established usage, or by 
 the courts, the prefects have the authority to establish regulations, 
 in conformity with the schedule of rights thus fixed, defining the 
 time, manner, etc., of use for each claimant, whether irrigator, man- 
 ufacturer, or comm^^ne, and according to existing circumstances.' 
 But, if no settled rights exist, regulations always emanate from 
 the council of state in general assembh', for to the sovereign 
 authorit}' belongs the right to settle matters so nearly affecting 
 the general interest. 
 
 "From these principles as to authority, it follows that in the 
 absence of long established and recognized custom and local 
 usage, and in cases where it becomes necessary in the general 
 interest to modify such practice, there is no other pro^dsion for a 
 division of water in tliis class of water-courses among the several 
 users, but a decree emanating from the council of state in general 
 assembly." — [De Passy. 
 
 Principleg Adhered to in Mal-ing Begvlations.'' 
 
 In cases where a division of water is to be made between agri- 
 culture and industrial pursuits, the points to be fixed are of two 
 kinds — those special to each particular case and those common 
 to the whole set of cases. 
 
 The special points are the following: (1) During what periods 
 is it necessary to have water for irrigation: first, for the spring 
 waterings, and, second, for the watering of summer crops; and on 
 what days, and at what hours during each of these periods, will it 
 be necessary to have the water. (2) In what divisions of the 
 stream do groups of distinct and separate interests lie; what is 
 the extent of interest in each di\'ision; what of the whole avail- 
 able water supply reckoned in days and hours will be required in 
 each di^dsion; at what times will each division demand its pro- 
 portion; and what is the constant demand in each di^'ision for 
 water for domestic pui-poses. 
 
 The general points are as follows: (1) The waters set aside 
 
 1 Decree of April 13, 1861. 
 
 - 8ee. De Passy, Dalloz, and Dumont. 
 
120 FRENCH IRRIGA TION LBGISLA TION. 
 
 for manufacturing power purposes, are after use or when not 
 used, accorded to irrigation without regulation, unless the con- 
 siderable number of interests on the stream below makes a 
 schedule necessary to preserve order in division. (2) The gaug- 
 ing, rating, guarding, and operation of the headgates of canals 
 and sluices, and of the weirs and open ways of dams, is the 
 subject of a general regulation. (3) The making of a general 
 schedule for division of waters, and of a special card therefrom 
 for guidance in the use of waters at each manufactory and by 
 each irrigation canal, is the subject of a general regulation for 
 the stream. (4) The reservation of waters for purposes other 
 than those specified in the schedule, in the interest of the pub- 
 lic generally and parties using water from the stream for other 
 purposes than irrigation and power, is the subject of a general 
 regulation for the stream. (5) The distribution in irrigation by 
 the irrigators themselves, of the waters allotted to them in each 
 case, and provision for citing them before the courts to have their 
 matters of dispute settled, under article 645 of the civil code, so 
 that water be not wasted, while they are quarreling, is the subject 
 of a general regulation for the stream. 
 
 A type of public administrative rulings for a division of water 
 between agriculture and industrial pursuits, is the decree dated 
 July 2, 1872, relative to the river Pure in the Department of Isere, 
 hereinafter given, under the head of " Regulations of Irrigation," 
 on the second page forward. 
 
 General Rules as to Division of Waters} 
 
 In the issue of permits to construct dams for irrigation in 
 water-courses of this class, a special obligation is imposed on the 
 owner of the work, that the water passage shall always remain 
 open, and thus a free flow of the stream on its natural bed be 
 assured, except when the water is being diverted into the canal 
 as provided for in the schedule of division. This specification 
 is necessary to guard against floodings above the dams, and to 
 insure a fair distribution of the waters according to thie schedules, 
 and to allow the stream to keep itself clear from deposits caused 
 by the dams when closed; and the necessity for it 1ms been made 
 glaringly apparent by a long and disastrous experience with dams 
 not provided with open ways. 
 
 ' See, De Passy; also, Dumont, and Dalloz. 
 
REGULATION ON SMALL STREAMS. 121 
 
 In cases where the water volume in the stream to be divided is 
 sufficient to admit of all claimants receiving adequate irrigating 
 or power-heads at once, the schedule is made on this basis — of a 
 division of the flow; but if the supply is not sufficient for this pur- 
 pose, the system of "turns" by the day, week, or hour is adopted, 
 and the schedule is so arranged as to accommodate, under this 
 arrangement, as many as possible with the supply available. The 
 system of turns is preferred by the administration as well as the 
 irrigators, because the supervision has then only to be directed to 
 fixing the time for opening and closing the headgates and dams 
 and not also to the regulation of the amount they shall admit. 
 But this system has the disadvantage often of not allowing the 
 waterings to be made when the crops most need it. 
 
 The administration, in making schedules for divisions of water, 
 is governed by ancient local custom, probable water supply, and 
 as far as possible by the necessities of each individual water-right 
 holder; so that in reality it only acts as a disinterested third party 
 apportioning a common benefit, as far as possible to suit desires 
 of the parties most at interest, and reserving and caring for the 
 rights of other parties at interest, much scattered and not other- 
 wise represented. In authorizing the construction of a new work 
 by a party having a riparian right to water, the prefect, represent- 
 ing the administration, if there are well established general rules 
 or customs governing water division on the stream, inserts a 
 clause to the efiect that the new work is to be used in conformity 
 to such rules as carried out b}' the administration or the con- 
 sumers amicably amongst themselves. 
 
 In the absence of ancient rules or customs the prefectorial order 
 is limited to authorizing the construction of the work, leaving for 
 the future the determination in the general interest, of conditions 
 under which the new work is to be used, if it should be needful 
 so to do, or, if this becomes necessary also, awaiting the action 
 of the courts in determining the relative rights of .the parties at 
 interest. Thus, questions relating to the actual right to water, 
 the relative extent of each claim to water, the right to partly or 
 wholly support a dam on another's land, the right of way to con- 
 duct water over another's land, the point at which drainage waters 
 shall be returned to the streams whence the head is derived, and, 
 in a word, all questions relating to each individual claim are, if 
 necessary, first to be adjudicated by the courts, and the adminis- 
 tration bases its regulations on these decrees. 
 
122 FRENCH IRRIGA TION LEGISLA TION. 
 
 JRegulations of Irrigation — Division of Waters between Claiviants} 
 
 As a practical example of an administrative measure regulat- 
 ing the division of waters between agriculture and manufacturing 
 and other industries, the following decree of the president of the 
 republic, dated July 2, 1872, is given in full. It will be under- 
 stood, of course, that the waters, except when being used, as 
 specified, in irrigation, are to remain in the channel for power 
 generation at the dams devoted to other purposes than irrigation: 
 
 " The president of the French republic, in view of the decree of 
 the 5th May, 1865, declaring to be of public utility the works for 
 the management of the lake of Paladru, intended to supply, for 
 all time, to the river of the Fure the volume of water sufficient 
 for the necessities of irrigation of the river meadows, and the 
 working of numerous manufactories which exist on this river: 
 
 " In view of the reports of the engineers of the department of the 
 Isere, relative to the measures to be taken to do away with the 
 abuses proceeding from the absence of schedules regulating the 
 \Tse of water: 
 
 " In view of the documents of the two inquiries opened by pre- 
 fectorial judgments of 4th November, 1867, and 18th May, 1871: 
 
 "In view of the opinion of the commission of the syndicate of 
 the Fure, in date of 10th October, 1870: 
 
 " In view of the uniformity of plan of the valley of the Fure^ and 
 the proposition of the proprietors of the irrigated meadows: 
 
 "In view of the reports of the engineers in date of 16th Febru- 
 ary and 31st May, 1870, 19th November, 1871, and 29th Febru- 
 ary, 1872: 
 
 "In view of the opinion of the prefect in date of 13th March, 
 1872: 
 
 " In view of the opinion of the general council of bridges and 
 roads, in date of 27th March, 1872: 
 
 "In view of the laws of 12-20 August, 1790, 6th October, 1791, 
 and the judgment of the government of 19th Ventose, year 6, the 
 decree of decentralization of 13th April, 1861: 
 
 "And the temporary commission, charged with replacing the 
 council of state, being heard, renders judgment as follows: 
 
 "Article 1. From 1st March to the 1st September, each year, 
 the meadows which have the right to the waters of the Fure, on 
 the territory of the seven communities of Charavines, Apprieu, 
 Saint Blaise de Buis, Beaumont, Rives, Renage, and TuUins, will 
 be irrigated once a week. 
 
 "First — The meadows included between the source of the river 
 and the dam of headworks of the furnaces of Riviere, a point 
 situated at 2028.50 metres down stream from the bridge of the 
 
 ' See, De Passy, Appendix No. 1. 
 
REGULATION ON SMALL STREAMS. 123 
 
 departmental road No. 7, from Sunday at one o'clock in the morn- 
 ing till Sunda}- at half-past seven in the evening. 
 
 "Second — The meadows included between the dam or headworks 
 of the furnace of Riviere and the mouth of the stream of Reau- 
 mont, in the Fure, from Saturday at nine o'clock in the evening 
 till Sunday at half-past seven in the evening, to wit : from Satur- 
 day at nine o'clock in the evening till Sunday at one o'clock in 
 the morning, with the total discharge of the stream, and during 
 the remainder of the time, with the product of the waters of filtra- 
 tion, proceeding from irrigations up stream, and that of the tribu- 
 taries which fall in this part of the bed of the Fure. 
 
 ^' Third — The meadows included from the mouth of the stream of 
 Reaumont, and the end of the course of the Fure, from Saturday 
 at six in the evening till Sunday at half-past seven in the even- 
 ing, to wit : from Saturday at six in the evening till Saturday at 
 nine in the evening, with the total discharge of the water-coiirse, 
 and during the remainder of the time, with the product of the 
 waters of filtration, proceeding from the irrigations up stream, and 
 that of the stream of Reaumont, as well as the tributaries which 
 fall in this part of the bed of the Fure. 
 
 "Article 2. The proprietors of the meadows will have, neverthe- 
 less, the power of practicing supplementary irrigations, when there 
 are superfluous waters, that is to say, when the manufactories are 
 working regidarly, and the river affords an excess of discharge, it 
 Tiiay be passing across the sluices of discharge, raised for this pur- 
 pose by the manufacturers, or it may be by accidental flowing over 
 the weir. 
 
 "The irrigators can open their headgates, but on condition of 
 closing them, as soon as the water of the river will have descended 
 to the legal level of the dams, the sluices of discharge being closed. 
 
 "Article 3. Outside of the fixed hours for irrigation, by article 
 1, and except the case of use of superfluous waters, under the con- 
 ditions provided by article 2, the sluices of the irrigation dams 
 existing, it may be on the Fure, it may be on the millponds taken 
 from this river, will have to be completely raised above the level 
 of flood waters, and the sluices of the headworks will remain 
 tightly closed. 
 
 " The proprietors, having, in virtue of titles legally recognized, a 
 right to a continuous small stream of water, it may be for their 
 domestic uses, it may be for feeding their retting pits, will be able 
 at all times to preserve in their respective headgates the openings 
 necessary to receive the continuous volume of which they have the 
 right of enjoyment. 
 
 "Article 4. In the regulating schedules for the works intended 
 to assufe the irrigation of the meadows, and the regime of the 
 manufactories, the prefect will fix the conditions, which he will 
 judge necessary, with the purpose of maintaining the division of 
 the waters made by the present decree. 
 
124 FRENCH IRRIGA TION LEG I SLA TLON. 
 
 "Article 5. The rights of outside parties are and continue ex- 
 pressly reserved. 
 
 "Article 6. The irrigators will arrange between themselves for 
 dividing the waters placed at their disposition, and will carry all 
 disputes which may arise from said division of waters, before the 
 competent authority. 
 
 "Article 7. The minister of public works is charged with the 
 execution of the present decree." 
 
 Regulations of Streams — Police and Cleansing of Water-Courses} 
 
 As a practical example of the regulations of police of non- 
 navigable water-courses, the following formula promulgated in 
 1878, as a circular, to the local administrative officers, by the 
 minister of public works, is presented. It is explained that this 
 is intended as an outline to be followed by the prefects in getting 
 up general regulations for the streams in their departments: 
 
 "Obligations of the Riparian Owners. — Riparian owners are to lop 
 off and remove all trees, bushes, and stumps which might form 
 an obstruction on the banks of the water-course, and all the 
 branches, which, touching the water, might impede the flow. 
 
 " Silt Accumulations. — Riparian owners are obliged to receive on 
 their lands the materials coming from the cleansings of the chan- 
 nel, and to remove the deposits which would injure the free flow 
 of the waters. 
 
 "Passage of Riparian Properties. — The riparian owners are obliged 
 to give free passage over their lands, from the rising to the setting 
 of the sun, to the officers and their agents in the discharge of their 
 duties, as well as to the foremen and workmen charged vnth cleans- 
 ings of the streams. 
 
 ' These persons cannot, however, use the right of passage over 
 closed lands, except after having previously notified the owners. 
 
 " In case of refusal they will require the assistance of the mayor 
 of the community. They will be responsible, besides, for all 
 damage or injury committed by them or their workmen. 
 
 "Construction. — Every proprietor who wishes to make a struc- 
 ture, or a change in any structure, upon the water-course, or ad- 
 joining it, must submit to the prefect the plan of the work he 
 proposes to adopt. 
 
 " In the two months which follow the deposit of this communi- 
 cation, the prefect, after haxdng taken the advice of the engineers, 
 will make known to the petitioner if the projected works would 
 appear to injure the free passage of the waters, and if, in conse- 
 quence, the administration is opposed to their execution. 
 
 "After this delay, if he has not received any response, the peti- 
 
 ' See, Lea Annates des Ponts et Chaussies, Vol. C'XXXIX, p. 1112. 
 
REGULATION OX SMALL STREAMS. 125 
 
 tioner can go ahead, without, however, prejudicing the rights of 
 third parties, and those of the administration. 
 
 '■ No dam, plantatioi\. permanent or temporary work, of a nature 
 to modify the regime of the watere, may be estabUshed or repaired 
 on a water-course witho\it the authorization of the prefect. 
 
 '■ It is forbidden to make ditches in the banks, or practice any 
 other means of derivation, without ha\-ing first obtained the per- 
 mission of the prefect. 
 
 •'Ohligatiom of Manufadurcrs and Users of Dams. — The weirs 
 and shiiees of discharge will always be maintained open, and 
 it is expressly forbidden to place am-thing on them for the pur- 
 pose of raising them. 
 
 "In defauft of an official ruling which fixes the legal height 
 of the dam, the waters are not to pass over the upper part of the 
 weir, or from the sluice of discharge with a head of pressure if 
 there is no weir. 
 
 •■ ^Manufacturers and users of the dams will be responsible for 
 the super-elevation of the waters, as well as when the discharge 
 sluices are not raised to their full height. 
 
 '■ The manufacturers and usei-s of the dams will be obliged to 
 open their sluices for the execution of the works of cleansing, dur- 
 ing the hours and days which will be fixed by the prefectorial 
 decrees made upon the advice of the engineers. 
 
 ••Deposits and Injurioii.t Waters. — It is forbidden to make any 
 deposits in the bed' of a stream or to allow infectious or injurious 
 waters to drain into it. 
 
 "The interdiction made bv article 17 of the decree above A-ised, 
 10th August, 1S7-3. of fishing in the parts of streams of which the 
 level would have been temporarily lowered, it may be by conduct- 
 ing the cleansings or any kind of works, it may be on account of 
 the stoppage of the manufactories, is reaffirmed. 
 
 "River Guards. — There will he river guards organized and spe- 
 ciallv charged -n-ith putting in operation the present rules, pro^^ded 
 that all the interested parties, or any certain number of them, have 
 made an engagement among themselves to assure the payment of 
 these agents, under the subventions which would be furnished by 
 the state, the department, or the communities. 
 
 " These agents will be commissioned by the sub-prefect, and will 
 be sworn before the tribunal of the district. 
 
 " Infringements of the rulings of the present law will be proven 
 bv means of statements drawn up by a river-guard, or by any 
 other agent of authoritv who has qualified for this purpose. 
 
 " These statements will be affirmed within three days of their 
 date, before the mayor or justice of the peace, either at the resi- 
 dence of the agent, or in the place of the offense. 
 
 " Thev will be ^-ise'd for stamps and registered fee, in the space 
 of four davs after the affirmation, and referred to the competent 
 jurisdiction. 
 
 "A copy of each statement will be remitted by the agent who 
 
126 FRENCH IRRIGATION LEGISLATION. 
 
 will have drawn it up, to the mayor of the commune, who will cer- 
 tify to it and send it to the infringer, with the summons, if neces- 
 sary, to cease immediately from damage. 
 
 " The present regulation will be published and posted through- 
 out the extent of the department. 
 
 " Copies of it will be addressed to the engineer-in-chief, to the 
 sub-prefects and the mayors charged, each one in that which con^ 
 cerns his business of overseeing and assuring the execution of the 
 prescribed rulings." 
 
 AUTHORITIES FOR CHAPTER IV. 
 
 2)«mon<.— [Work cited as an authority for Cliapter ll.l See Book II, Chapters 
 
 II, III, and IV. 
 De Passy. — [Work cited as an authority for Chapter II.] See Chapter I, pp. 
 
 14-130, and supplement, pp. 297-334. 
 Malapert— \yfor'k cited as an authority for Chapter II.] See headings, "Actual 
 
 Republic," "Engineers," "Water-Courses." 
 Be Buffon.—\yf ork cited as an authority for Chapter II.] See Vol. II, Part II 
 
 Sec. I, pp. 1-108. 
 iJaitoz.— [Work cited as an authority for Chapter II.] See Vol. XIX, " Waters," 
 
 Chapters IV, IX, and X ; also. Vol. XL, title " Servitudes." 
 Les Annales des Fonts et CAaussles.— [Work cited as an authority for Chapter 
 
 II.] Se6, particularly, Vol. CXXXIX, p. 1112 et seq., and also the 
 
 late volumes of " Laws and Decrees." 
 Civil Code. — [Works cited as authority for Chapter II.] 
 
OWNERSHIP AND CONTROL OF SPRINGS. 127 
 
 OHAPTEE V.-FEANOE'"; 
 
 EIGHT OF PEOPERTY IN SPEIiaS, AND EIGHTS TO THE USE 
 or SPEING WATEES. 
 
 Section I. — Ownership and Control of Springs. 
 Absolute On-nership. 
 The Opposing Doctrine. 
 Tlie Settled Principle. 
 
 Section II — Acquired Rights to Spring Waters. 
 
 Public Use of Springs ; Populations. 
 Private Use — By Title; Prescription. 
 Servitude Resulting from Dividing Estates. 
 
 Section III. — Rights of Drainage and Other Rights. 
 
 Natural Right of Drainage — Civil Code. 
 The Right to Dig or Bore for Water. 
 
 SECTION I. 
 
 Ownership and Control of Springs. 
 
 Absolute Ownership.^ 
 
 The matter of the ownership and control of springs has been 
 one full of contention in France; but it is now well settled by the 
 provisions of the code, and the decisions thereunder. Article 641 
 of this civil code says: " He who possesses a spring within his field 
 may make use of it at his pleasure." 
 
 It follows from this that " a spring is the exclusive property of 
 him on whose land it rises, and is used in an absolute manner like 
 the land itself. The owner may lead its waters over his land, " 
 change their course, collect them in ponds and reservoirs, cause 
 them to be absorbed by the ground, or even suppress the spring 
 itself, and his neighbors will protest in vain against being deprived 
 of them."— [Dumont, § 127. 
 
 ' See CivU Code, Articles 641, 642, 643; Dumont, §§ 127-129; De Passy, p. 21, 
 and elsewhere; Dalloz, Vol. XXXVIII, p. 217, and Vol. XIX, p. 398; also, 
 Proudhon. 
 
128 FRENCH IRRIGATION LEGISLATION 
 
 The code, however, defines certain circumstances under which 
 this control of springs is limited and qualified; the causes being — 
 the necessities of communities for water for domestic purposes, the 
 necessities of the state for water for purposes of navigation, and 
 the rights which persons other than the owners of springs may- 
 have acquired to the use of their waters by purchase or by pre- 
 scription. 
 
 Tlie injunction laid upon the courts by article 645 of the civil 
 code, which commands that " if a dispute arise between the pro- 
 prietors to whom such waters may be useful," they, the courts, "in 
 pronouncing judgment, must reconcile the interests of agriculture 
 with the respect due to property," applies only to waters mentioned 
 in article 644, namely, those of non-navigable and non-raftable 
 streams, on the use of whose waters, in favor of riparian lands, a 
 servitude is laid, and does not apply to the waters of springs. 
 Hence, the courts have not the power to partition the waters of 
 springs between the proprietors to whom they may be useful, as in 
 the case of waters of small streams, and the administrative depart- 
 ment has never attempted it as a regulation. 
 
 The Opposing Doctrine} 
 
 This doctrine has been strongly opposed in France, however, and 
 there are writers, and some decisions, which hold that the princi- 
 ple of compromise and judicial control, embodied in article 641, 
 was meant for application in the case of springs, as well as in the 
 case of small water-courses, and that hence the courts can, in the 
 interests of agriculture in general, and for the benefit of local agri- 
 culturists in particular, prevent the unnecessary wasteful or selfish 
 use of spring waters, as well as those of a stream by an owner on 
 its banks, and compel a division of the water with owners of adja- 
 cent lands, if there is really more water than is necessary for the 
 lands containing the source, and for the legitimate necessities of 
 the proprietor. 
 
 The Settled Principle.^ 
 
 The ownership and control of springs is so complete and abso- 
 lute that, so long as the waters remain within the property where 
 they rise, even though used for manufacturing, power purposes, or 
 otherwise, the administration, which has such extended authority 
 
 ] See, Dumont, § 128. 
 
 ^ Bee, De Passy, p. 21, and elsewhere. 
 
ACQUIRED RIGHTS TO SPRING WATERS. 129 
 
 in the regulation of the use of waters under other circumstances, 
 can do nothing to interfere with the proprietor's use of these spring 
 waters, "even though they be in sufficient vohinie to form a verit- 
 able water-coui-se." — [De Passj% p. 21. 
 
 " With regard to springs which rise on the lands of an estate * 
 * * they belong to the proprietor of the lands themselves. * * * 
 The proprietor, then, disposes entirely of the spring. sa-\nng the 
 rights which may have been acquired against him, and sa^^ng the 
 sacrifices which the public interest may exact to the detriment of 
 his right." — [Dalloz, Vol. 08. p. 217. 
 
 But if spring watei's be led across or into property other than 
 that containing the source, no matter though the using be for the 
 benefit of the owner of the source, or for whatever purpose, such 
 stream is subject to regulation, as in the case of others. 
 
 SECTIOX II. 
 
 Acquired, Rights to Spring Waters. 
 
 Public Cjr of Springs — Populations} 
 
 Private interests must always be subordinate to public interests, 
 however, and on this account the owner of a spring cannot change 
 the course of its waters when they furnish the necessary supply to 
 the inhabitants of a commune, village, or hamlet. " The legisla- 
 ture has always held in ^-iew of the personal necessities of people 
 rather than the requirements of agriculture, as necessary to the 
 moral well-being of the nation." — [Dumont, § 130. 
 
 Tliis servitude is sometimes burdensome upon the proprietor of 
 an estate who may desire to divert the waters of his spring-to some 
 purpose useful to himself, and, hence, he has the right to claim 
 payment from the community, miless the inhabitants have, by use 
 for a due length of time, a prescriptive right to the water. "The 
 amount of the indemnity is determined by the courts, who take 
 into consideration the degree of injury proved by the proprietor, 
 rather than the advantages reaped by the commune, %illage, or 
 hamlet."— [Dumont, § 130. 
 
 " It has been decided that a spring existing in the land of an 
 indi\'idual is presumed to be the property of a community of peo- 
 
 ' See, Dumont, §§ 130, 131 ; Dalloz, Vol. XXXVIII, p. 217 ; Proudhon, 11. 4. 
 9' 
 
] 30 FRENCH IRRIGA TION LEGISLA TION. 
 
 pie when this community has had the continual use of it from 
 time immemorial, for domestic and community purposes." — [Dal- 
 loz, Vol. 19, p. 217. 
 
 Government can also take possession of springs to feed canals 
 for navigation, but on condition that it pay a just indemnity, as 
 adjudged by the courts, and in conformity to the law for the con- 
 demnation of private property to public use.^ 
 
 Private Use — hy Title; Prescription!' 
 
 The absolute right of ownership in a spring is also modified by 
 purchased titles, by prescription, and by the servitude set up by 
 the division of an estate containing a spring. A purchased right 
 to the use of the waters of a spring is evidenced by a deed or 
 record from the owner or former owner of the spring. In cases of 
 uncertain meaning to such documents, the courts adhere to the 
 presumption that the owner of the spring did not mean to restrict 
 his own use of the waters in the fullest extent necessary for his 
 purposes, but only to give the grantee the right to control the 
 waters at any time found running in the channel below. 
 
 " The right most corrimonly ceded to a third party, upon a spring, 
 is that of drawing water, or that of leading water away from it. 
 The servitude thus accorded is regulated by the principles of con- 
 ventional servitudes. The concession of a right of leading out 
 water does not prevent the proprietor from himself usiag the water 
 of the spring for the wants of his property, but he cannot change 
 the cultivation of his property in such a way as to absorb a greater 
 quantity of water than he was using at the moment of the conces- 
 sion. 
 
 " He who has ceded upon his spring a right of leading out water, 
 can cede another to another person, without the consent of the 
 first cessionary, provided always that the waters thus divided 
 amongst several cessionaries can still suffice for the wants of each; 
 otherwise, the consent of the first cessionary will be needed. The 
 owner of a property to which the servitude of leading out water is 
 due, cannot, without the consent of him who owns the property 
 which owes it, concede it to a third party, nor even use the water 
 for another property, or for another part of the property. 
 
 ' " One can acquire a servitude of leading out water on a higher 
 property, from which it is separated by an intermediate property 
 or by a public road. In the latter case an authorization is neces- 
 sary. There is a servitude of aqueduct on the intermediate prop- 
 
 1 Law ot Mav 3, IS41. 
 
 2 Dumont, §§ 132, 133, 134,1394; Dalloz, Vol. XL, title "Servitude;" CivU Code, 
 Arts. 688, 689, 690, 691. 
 
ACQUIRED RIGHTS TO SPRING WATERS. 131 
 
 erty. and a ser\-itude of leading out water on the higher property. 
 The proprietor of the intermediate property cannot serve himself 
 with tlie water which passes through his laiid, without the consent 
 of his two neighbors who have treated for the ser\dtude of the 
 water-right."— [Dalloz, Vol. 40, word " Ser\-itude." 
 
 A prescriptive right to the use of the waters of a spring is 
 '' acquired by an interrupted enjoyment of theui during the space 
 of thiity years; to be computed fi-om the moment at which the 
 proprietor of the lower field has made and completed the works 
 apparently designed to facilitate the fall and com-se of the water 
 within his property." ' 
 
 The courts hold that the essential points to be established in 
 piwdng this serA^tude are: (1) That the works have been estab- 
 lislied in a permanent manner, (2) and maintained for thirty 
 years, (3) in a manner to constitute an adverse possession of the 
 water to that of the owner of the spring, and, hence, in conse- 
 quence of the last condition, that these works be attached to the 
 tract wherem the water rises. "This last condition is not written 
 in the law, but it is the meaning of it, and tliis point. wHch has 
 been the subject of Hvely debate, is at present sanctioned by juris- 
 prudence." — [Dumont, § 134. 
 
 " The second exception to absolute ownership in a spring, on the 
 part of him who has it on his property, consists in the prescription ■ 
 wMch can be acquired of the right to use the water of tliis spring. 
 Prescription in this case can only be acquired by uninterrupted 
 enjoj-ment, during thirty years, counting from the moment in 
 which the proprietor of the lower land has made and terminated 
 \"isible works destined to facilitate the fall and flow of the water 
 on his property. 
 
 " \A'e will remark at first that the prescription does not apply to 
 a simple right of dra^ving water; for that is a discontinuous ser^-i- 
 tude, and ser\itudes of tliat description are not acquired by pre- 
 scription. It would be difierent with a ser\'itude of this class 
 which would have been acquired by possession before the publica- 
 tion of the civil code. The general principles of prescription re- 
 ceive here their apphcation. 
 
 "Moreover article 642 establishes special rules of which the 
 accompUshment is necessary in order that the servitude may he 
 acquired by prescription. It is necessary in the first place that 
 there may be works. In vain the higher proprietor would have 
 allowed tiie lower property to enjoy peaceably and publicly the 
 use of the waters; this would only be a simple tolerance which 
 could not constitute a right." — [Dalloz, \(A. 4Cl, word " Servitude." 
 
 ' CivU Code, Art. (Al\ see, also, Artides H8S, 689, 690, 691. 
 
132 FRENCH IRRIGATION LEGISLATION. 
 
 The Servitude resulting from Dividing Estates} 
 
 There are cases wherein lower and other proprietors hold the 
 right to use the waters of a spring otherwise than by purchase or 
 prescriptive use for thirty years. Thus when an estate containing 
 a spring has been subdivided amongst heirs, after having been 
 held by one proprietor, and the waters used to the benefit of the 
 lower lands, so as to result in a servitude, by the owner of all, the 
 owners in common and co-heritors of the upper and lower part of 
 the estate share the use of the waters after the division of the 
 lands. 
 
 This servitude results from article 692, civil code, which is as 
 follows: " The declaration of the father of a family is equivalent to 
 a deed as regards continual and apparent servitudes." The rights 
 of ownership and use of a spring may be restricted, but not anni- 
 hilated by the servitude above named, and it rests with the courts 
 to conciliate the several interests in such cases. 
 
 The rights above described, acquired by prescription and the 
 "servitude of the father of a family," do not constitute property 
 rights, either in the spring or its waters, but simple rights to the 
 use of some portion of the water, according to the facts in each case. 
 Thus, the possessor of the lands in favor of which such rights have 
 accrued, cannot take water at such times, and in such manner, 
 and in such quantity, as seems best to him. "Conciliating the 
 right to use with the rights of the owner of the spring, the courts 
 can decide that in the future he does not use the water but accord- 
 ing to a measure which, in default of an amicable agreement, will 
 be regulated in the courts, by experts." This duty of experting 
 usually falls to the engineers of the administration in charge of 
 streams. 
 
 SECTION III. 
 
 Drainage and Other Rights. 
 
 Natural Right of Drainage } 
 
 Article 640 of the ci^^l code reads as follows: "Inferior lands. 
 are subjected as regards those which lie higher, to receive the 
 
 ' See, Duuiont, §§ 134, 13(i, 137; Civil Code, Arts. 688, 689, 692. 
 ■' See, Dumont, § 129; also, Dalloz, title "Servitude." 
 
NATURAL DRAINAGE AND OTHER RIGHTS. 133 
 
 waters which flow naturally therefrom, to which the hand of man 
 has not contributed. The proprietor of the lower ground cannot 
 raise a bank which will prevent such flowing. The superior pro- 
 prietor of the higher lands cannot do anything to increase the serv- 
 itude of the lower." 
 
 Under this article, waste waters from springs must be permitted 
 to flow as they would naturally flow on to lower lands. If the 
 ordinary clearing or cultivation of a field, or excavation for ordi- 
 nary purposes other than those of developing a flow of ground 
 water, causes an increase in the flow of a spring, or the breaking 
 out of a new one, these waters must be allowed to drain away as 
 though naturally started. The owner of a lower estate cannot, 
 however, without due indemnity, be made to suffer the passage 
 over his lands of waters caUsed to flow by excavations made for 
 the purpose of getting a flow of water, or where it is well known a 
 harmful flow will result, or by artesian borings. 
 
 The Right to Dig or Bore for Water} 
 
 Ai-ticle 552, ci^'il code, reads as follows: "Property in the soil 
 imports property above and beneath. The proprietor may make 
 above, etc. * * * He may make beneath, all structures and 
 excavations which he shall judge convenient, and draw from such 
 excavations all the products which they are capable of furnishing, 
 saving the restrictions resulting from the laws and statutes relat- 
 ing to mines, and from the laws and regulations of police." 
 
 In consequence of this article, ownership of land carries with it 
 all above and under the soil, and which is attached to it. The 
 application of this principle authorizes the land owner to make on 
 his land any works or excavations he deems expedient for his 
 purposes, even though they result in the cutting of subterranean 
 veins of water that feed a spring rising upon the lands of a lower 
 proprietor. 
 
 " The court of appeals has even extended this privilege to cases 
 where such excavations would damage mineral water establish- 
 ments belonging to the State, and it refused the administrative 
 authority of the mayor of Vichy the power to render decrees to 
 forbid such excavations. * * * The council of state has also 
 sanctioned the same principle in a similar case." — [Dumont, 
 §138. 
 
 This natural privilege may be forfeited by agreement amongst 
 
 ' See, Dumont, §§ 138, 139; and Dalloz, Vols. XIX and XL, words cited. 
 
134 FRENCH IRRIGA TION LEGISLA TION. 
 
 proprietors, so that one estate be bound not to excavate to the 
 detriment of waters or springs naturally rising on another. 
 
 AUTHORITIES FOR CHAPTER V. 
 
 Dumont. — [Work cited as an authority for Chapter II.] See, Book II, Chap. IV, 
 pp. 209-225. 
 
 De Passy. — [Work cited as an authority for Chapter II.] See, pp. 21, 22, and 
 elsewhere. 
 
 Balloz. — [Works cited as an authority for Chapter II J See, Vol. XIX, title 
 "Waters," p. 276, and elsewher^ and Vol. XXXVIII, title " Property," 
 p. 217, and elsewhere, and Vol. XL, title "Servitudes." 
 
 Proudhon. — [Work cited as an authority for Chapter II.] See, p. 4, and else- 
 where. 
 
 Civil Code-. — [Works cited as authority for Chapter II.] See, particularly. Arts. 
 552, 640, 641, 642, 643, 688, 689, 690, 691, 692. 
 
I'FA y FOR WORKS OF PUBLIC UTILITY. 135 
 
 OHAPTEE VI.-FEANOE'^>; 
 
 THE EI&HT OP WAY TO OONDTJOT WATER AND THE EIGHT 
 TO ABUT A DAM, 
 
 Section X.— Rights for Works of Public Importance. 
 
 Condemnation for Works of Public Utility. 
 Way for JIain and Secondary Works. 
 The Laws of 1836 and 1841. 
 
 Section 11.— Rights fm- Private Water- Wans. 
 
 Servitude of Right-of-Way; Law of 1845. 
 Servitude of Right-f or-a-Dam ; Law of 1847. 
 Application of these Laws. 
 
 SECTION I. 
 
 Rights for Works op Public Importance. 
 Condemnation for Worls of Pvhlic Utility.' 
 
 The right to land or to occupy land upon which to locate a 
 canal or other water conduit, with its accessory works and struct- 
 ures, is, according to circumstances, obtained in France either 
 by acquiring title to the strip of land itself, or as a servitude or 
 right of occupation and use for the specified purpose. 
 
 In acquiring title to lands for the location of works, the mode 
 of amicable private purchase is always open, and is the only 
 means of attaining this desired end until the project shall have 
 been declared and recognized by law or decree as being of pub- 
 lic utility or importance, when the properties may be condemned 
 as for public use. This process of condemnation is carried on 
 under laws of 1836, regarding local roads, and of 1841, regarding 
 expropriation for purposes of public utility. 
 
 Expropriation, or condemnation of private properties for works 
 of public utility, is accomplished through the action of the courts, 
 
 ^ See, particularly, Les Annales des Ponts ct Chaussies, Vol. XX, pp. 203-217, 
 and Vol. XII, p. 328, et seq.; also, Dumont. 
 
136 FRENCH IRRIGA TION LE GISLA TION. 
 
 which, however, can only order the condemnation after the decla- 
 ration of public utility has been made, for each case, (1) in the 
 special law or ordinance which authorizes the execution of the 
 works for which the expropriation is required, (2) in the decree 
 of the prefect which designates the localities of the tracts on 
 which the works are to be placed (when this designation is not 
 contained in the law or ordinance), and, (3) in the final decree 
 in which the prefect designates the particular pieces of property, 
 according to ownership, metes and bounds, which it is necessary 
 to condemn; and such condemnation can only be made after due 
 hearing of interested parties, and in conformity to process of law. 
 
 Great public works, such as national roads; railroads, basins and 
 docks, canals, and the canalization of rivers, whether enterprises 
 of the state, or departments, communities, or of particular compa- 
 nies, whether toll is to be charged in any way or not, or whether a 
 subsidy of treasure is to be granted or not, or whether any part of 
 the public domain is to be used or not, can only be executed by 
 virtue of a special law, which can be passed only after an admin- 
 istrative inquiry has demonstrated the feasibility and desirability 
 of the work, and a report has recommended it. 
 
 A central administrative ordinance is sufficient to authorize the 
 execution of departmental routes, that of canals and branch rail- 
 roads less than 20,000 metres in length, and of bridges and other 
 works of less importance; but such ordinance must also be pre- 
 ceded by due inquiry, examination, and report on the project, in 
 conformity with regulations formulated by the central adminis- 
 tration. 
 
 With respect to the administrative and legal forms to be followed 
 in the condemnation of properties for works declared to be of 
 public utility, this law goes into minute details at great length, 
 expressly defining and prescribing each step to be taken, under the 
 following general headings: Administrative measures of inquiry 
 preceding condemnation ; effect of condemnation on mortgages and 
 other similar rights; the rule of indemnification; the payment of 
 indemnities; contracts of sale; and others not at all necessary to 
 enumerate. 
 
 Way for Main and Secondary Works. 
 
 From the first part of this long law, it appears that wherever it 
 is proposed to condemn property for purposes of public works, such 
 as for right of way for a canal, there must first be a report from 
 
JFJ y FOR WORKS OF PUBLIC UTILITY. 137 
 
 the government engineers defining or recommending the proposed 
 route, and showing the lands, etc., proposed to be taken in each 
 commune or community. This plan is posted at the local mayor- 
 alty house, and advertised for inspection of all concerned. There- 
 after, an inquiry is held by a commission to hear all objections, 
 criticisms, or suggestions of change. On the result of the report of 
 this commission, with the e^-idence annexed, the prefect designates 
 the route to be taken and defines the properties it will be necessary 
 to take for the work. Should it be necessary from the report of 
 the commission to modify the plans proposed for the works, the 
 subject must be referred to the central administration, and the pre- 
 fect awaits its decision. The properties being thus defined, the 
 question becomes one for the courts, according to the pro^asions of 
 the law which follow under the headings already given. 
 
 In accordance with this law. whenever a canal enterprise of 
 importance is to be authorized, so that the projectors may have 
 the right of condemning private property for right-of-way or other 
 necessary purposes of the work, there is a special law passed 
 wliich declares the proposed work to be one of pubUc utility, and 
 entitled to the benefits of the pro^dsions of the laws providing 
 for the condemnation of private properties for public use. This 
 method of acquiring right of way for great works of public impor- 
 tance is of ancient origin in French legislation, for although the 
 particular acts cited are of comparatively recent date, they are 
 founded on and are elaborations of others preceding them. 
 
 These provisions, however, apphed only to rights of way for 
 main works — those which could be recognized as being of pubHc 
 utihty; and until 184-5 there was no method, except by amicable 
 private purchase, to acquire rights of way for the minor distribut- 
 ing ditches of great canal systems, nor was there any possibihty of 
 a private individual or of any organization acquiring a right to 
 conduct water over lands against the will of their o-\vner until 
 the work had been officially examined and declared to be of pub- 
 lic utihty as above explained. 
 
138 FRENCH IRRIGA TION LEGISLA TION. 
 
 SECTION II. 
 
 Rights for Private Water-Ways. 
 Servitude of Right of Way} 
 
 The passage, in 1841, of the law on the condemnation of private 
 properties for purposes of public utility, which was really in some 
 respects a reenunciation of laws already existing, brought the 
 right-of-way question to a head, so that in 1843 a proposition was. 
 introduced into the chamber of deputies, for a law declaring that 
 all irrigation works constructed by companies or individuals 
 should be declared to be of public use, according to the forms of 
 the law of 1841. And this, in turn, caused the introduction of 
 another proposition for a law of dispossession for right-of-way in 
 favor of all proprietors, whether owners of bank lands or not. who 
 wanted to use water for the irrigation of their estates. 
 
 It was pointed out at the time that one of these propositions was 
 opposed to the principle of the fundamental law of the country — 
 that private property could only be condemned for public and not 
 for private use ; and that the other proposition was opposed to the 
 well established exclusive right of riparian owners to waters of 
 non-navigable and non-raftable streams. The whole question of a 
 draft of a law as a substitute for these was then referred to a com- 
 mission, and this commission reported, and the chambers, after a, 
 long consideration, passed the law, which here follows: 
 
 Law upon the Right of Way for a Canal — Passed twenty-ninth of Apnl, 18^5. 
 
 " Article 1. Every proprietor who may wish to be served for the 
 irrigation of his property with the natural or artificial '' waters of 
 which he has the right to dispose, can obtain the passage for 
 these waters over intermediate lands by previously paying a just 
 indemnity. There are excepted from this servitude houses, pleas- 
 ure grounds, gardens, parks, and inclosures belonging to dwellings. 
 
 " Article 2. The proprietors of lower lands will have to receive 
 the waters which percolate from lands thus irrigated ; being 
 indemnified, however, if damaged. Houses, pleasure grounds, 
 gardens, parks, and inclosures belonging to dwellings will be 
 equally excepted from this servitude. 
 
 ' See, particularly, Durnont, Book II, Chap. V, and Les Annates des Fonts et 
 Ghaussies, Laws and Decrees, 1845 and 1847 ; also, De Passy. 
 
 '' "Artificial" waters: those drawn from deep wells or "otherwise brought to 
 the surface of the ground artificially. 
 
WAY FOR PRIVATE CANALS. 139 
 
 ", Article 3. The same right of passage over intervening lands 
 Avill have to be accorded to the proprietor of a property submerged 
 in whole or in part, for the purposes of drainage. 
 
 " Article 4. The questions to which the establishment of this 
 ser\-ice will give rise, the fixing of alignment of the water conduit, 
 of its dimensions, and of its form, and the indemnities due — it 
 may be to the proprietor of the land traversed, it may be to that 
 of the property which will receive the drainage waters — will have 
 to be taken before the courts, which in pronouncing on them will 
 have to conciliate the interest of the enterprise with the respect 
 due to property. It will be tried before the tribunal in a sum- 
 mary manner, and if a question for experting, it will only be nec- 
 essary to name one single expert. 
 
 "Article 5. There will be nothing detracted by the present 
 pro\'isions from the laws which regulate the poUce of waters." 
 
 The consideration of this law on its passage gave rise to long 
 and stormy debates in the chambers of the legislature, in which 
 it was attacked on about the same grounds as those previously 
 referred to the commission. A synopsis, with extracts at length 
 from the speeches of these debaters, is given by ]M.]\I. Dumont, 
 and as the result of their consideration of the subject the follow- 
 ing conclusions are drawn: 
 
 First — That the law had for its sole object the establishment of 
 a legal servitude to be laid on property in obtaining a right of 
 way to conduct across it such waters as one has the right to dis- 
 pose of. 
 
 Second — That it leaves intact all the points of the laws and 
 decisions preceding it and relative to the ownership, right to use, 
 and poUce of waters. 
 
 These conclusions have since been repeatedly verified by de- 
 cisions of the courts of highest resort. The nature of this ser\i- 
 tude and the spirit in which it was advocated may be well 
 imderstood from the following: In the coiu-se of the debate the 
 judge advocate said, "the judicial power can, according to the 
 case, grant or refuse the servitude, as it is or is not justified by 
 real irrigation interest;" and commenting on this and other para- 
 graphs M.^I. Dumont say: 
 
 " It is without doubt that the courts are not obliged to grant 
 the servitude of passage every time it is demanded; on the con- 
 trary the law imposes on them the duty to estimate the degree of 
 usefulness it has, to balance this usefulness with the injury that 
 the digging of the canal might cause to properties, to examine if 
 the water proposed to be diverted has not already an equally 
 
140 FRENCH I R RIG A TION LEGISLA TION. 
 
 beneficial application, and, finally, to consider all the circum- 
 stances of the case." 
 
 " The servitude is created for the benefit of lands jor irrigation, 
 and not for conducting water for ornamental or any other pur- 
 pose, and the courts will refuse to allow its application for any 
 other purposes than those of the irrigator." 
 
 Servitude of Right-to-Abut-a-Dam} 
 
 The passage of this right-of-way law went far to set aside the 
 difficulties attending the establishment of private irrigation works 
 by riparian proprietors on the non-navigable streams, and those 
 who had obtained water concessions on public streams, from the 
 administration, and those who owned the waters of springs. But 
 a great difficulty yet remaining was that of acquiring the right to 
 construct a dam against the bank of another riparian proprietor. 
 One might own one bank of a stream yet could not build a dam 
 in it to divert water on to his own land, should the owner of the 
 opposite bank object to the end of the dam being rested against 
 his land. Or one might have right of way to conduct water, but 
 not right to put a dam in a stream to divert it, because the bank 
 owners objected, and this, too, when the administration may have 
 approved the project. This condition of affairs led to great con- 
 flicts, and these resulted in the passage of the following law: 
 
 Law Upon the Right-to-Abut-a-Dam — July 11, 1847. ^ 
 
 "Article 1. Every proprietor who will wish to be served for the 
 irrigation of his property with the natural or artificial waters of 
 which he has the right to dispose, will be able to obtain the 
 privilege of supporting upon the property of the opposite bank- 
 owner the works necessary for its taking, upon previously paying 
 a just indemnity. There are excepted from this servitude the 
 buildings, pleasure grounds, and gardens belonging to dwellings. 
 
 "Article 2. The riparian owner of the lands upon which the 
 right will have been claimed can always demand the common 
 usage of the dam by contributing one half of the expenses of the 
 establishment and maintenance of it. Any indemnity will not 
 be due in this case, and if any has been paid it must be returned. 
 When this common usage will only be claimed after the com- 
 mencement, or the completion of the works, the payment which 
 the second proprietor will have to make in order to have the right 
 to use it, will be only that amount which it is necessary to expend 
 in order to make it available for taking out water on his bank. 
 
 ' See, De Passy, and Dumont. 
 
 ^ Lcs Annales des Fonts el Chaussfes, Vol. Laws and Decrees, 1847. 
 
WAY FOR PRIVATE CANALS. 141 
 
 "Article 3. The questions to which the application of the two 
 above articles will give rise will be taken before the courts. They 
 will be proceeded with in a sunnnary manner, and if there is need 
 of experts, tlie tribunals will name only a single expert. 
 
 "Article 4. There will be nothing detviicted by the present 
 provisions from the laws, which regulate the police of waters." 
 
 Application of these Lciios} 
 
 The law of 184.'i concerning the servitude of right-of-way to 
 conduct water, and the law of 1847 concerning tlie servitude of 
 right-to-abi;t-a-dani, were intended for application only in cases 
 of individual or private works, and unless their application is 
 specially extended by law they cannot be availed of bj' com- 
 panies or associations of land owners. Two individuals cannot 
 jointly invoke the application of either of these laws, though each 
 for himself can. Associations of landholders cannot avail them- 
 selves of these laws unless they organize according to the terms 
 of a law of 1865, regulating the formation of syndicate asso- 
 ciations, which expressly extends to such associations when duly 
 recognized by the administration, the benefits of the laws in 
 question. Hence "free" syndicate associations cannot force a 
 right of way or a dam right, but '' authorized " associations can. 
 
 The decrees of authorization of syndicate associations and the 
 laws or decrees sanctioning the formation of canal companies, and 
 granting them concessions of water privileges, always contain a 
 clause extending to them the right, not only of eminent domain 
 under the laws of 1833 and of 1841, to condemn lands for right- 
 of-way, but also the rights of laying the servitudes of right-of-way 
 and right-to-abut-a-dam under the laws of 1845 and 1847, and it 
 is usual to stipulate that lands for all main works shall be expro- 
 priated and paid for by them, and that only the servitude of right- 
 of-way shall be acquired for minor works. 
 
 The right-of-way law cannot be applied to force an upper ditch 
 owner to enlarge or deepen his existing canal in such manner as 
 to pass sufficient water for other irrigations below; but it may be 
 used to force any number of ditches through one piece of property, 
 if the courts choose to allow its application for the purpose. 
 
 t^ee, De Passy, pp. .50, 89, 90, 100, 287, 314, and elsewhere. 
 
142 FRENCH I R RIG A TJON LEG I SLA TION. 
 
 AUTHORITIES FOE CHAPTER VI. 
 
 Dumoni.— [Work cited as an authority for Chapter II.] See Book II, Chapter V. 
 Be Passy. — [Work cited as an authority for Chapter II.] See pp. 50, 8&-100, 287, 
 
 314, and elsewhere. 
 Les Annales des Fonts et Chaussles. — [Work cited as an authority for Chapter II.] 
 
 See Vol. XII, p. 328, et seq., Vol. XX, pp. 203-217 ; also. Vols. Laws and 
 
 Decrees for 1845 and 1847. 
 
I^FLUE^'CES RETARDING ENTERPRISE. 143 
 
 CHAPTEK Vn -FEANOE""; 
 lEEIGATION ENTEEPEISE AND OEGANIZATION. 
 
 Sectiox I. — Governing Influences. 
 
 Diversity of Climates. 
 
 Sentiment Concerning Irrigation. 
 
 Small Land-Holdings. 
 
 The Agriculturists not Capitalists. 
 
 Jealousy of Property Rights. 
 
 Timidity in Eegard to Indebtedness. 
 
 Heavy Cost of Works. 
 
 Poverty of Peasant Proprietors. 
 
 High Valuation of Lands. 
 
 Eipariau Rights and Other Complications. 
 
 8ECTI0S II. — I>Tigaiion Organisations. 
 Speculative Companies. 
 Associations of Landholders. 
 Free Syndicate Associations. 
 Authorized Syndicate Associations. 
 Powers of Prefects and Principles of Association. 
 
 SECTION I. 
 
 GOVEHXING IXFLIEXCES. 
 
 Climatic and Social.^ 
 
 France lies in the zone intermediate between those latitudes, in 
 Europe, where, on the one hand, irrigation is, as a general thing, 
 an absolute necessity to success in agriculture, and where, on the 
 other hand, it is useful only as an auxiliary to special cultivations, 
 in limited localities and for particular purposes. The climate of 
 France, as affecting irrigation, is almost as varied as that of Cali- 
 fornia; so that there are regions where the annual rainfall scarcely 
 exceeds a foot in depth, and where it is so distributed, as to time, 
 that there must be artificial waterings of all crops, to supply the 
 
 ^ See, Reclus, chapters " France ;" also, Mangon, and De Buffou, Book I, Sec. 1. 
 
144 FRENCH IRRIGA TION LJEGISLA TION. 
 
 deficiency of moisture to the soil and plant, and irrigation is prac- 
 ticed during the spring and summer months for this purpose. 
 
 And, again, there are regions, by comparison, quite cold, with 
 twice to three times as much rainfall as in those first spoken of, 
 and distributed well throughout the year, but where irrigation is 
 practiced far more copiously, and every month in the year, not to 
 supply any deficiency in moisture to the soil and plant, but to 
 serve as a fertilizer and as an equalizer of temperature to the grass 
 meadows upon which extended dairy farm interests depend. 
 
 As a general thing, however, France is less an irrigation country 
 from necessity and for general profit, than is California, for the 
 valleys of France, with exceptions limited to small regions, receive 
 from sixteen to thirty-two inches of rain each year, while ours of 
 California receive only ten to eighteen inches, as a general rule. 
 The necessity for and value of irrigation in France was not suffi- 
 ciently appreciated by the generations past, to bring about- a gen- 
 ,eral sentiment in favor of national encouragement to irrigation 
 enterprise. Irrigation has been there, as in California, until within 
 comparatively few years, looked upon more as a local necessity, 
 for some parts of the country, than as a valuable auxiliary to gen- 
 eral agriculture, and as a process essential to higher and fuller 
 agricultural development for all parts of the country. Hence, 
 there has not been that widespread appreciation of the subject 
 among the people of all France which we, not realizing these 
 points, might expect to find recorded. 
 
 Small Land-Holdings and Jealousy of Rights.' 
 
 The lands are very generally held in small tracts; and close 
 and thorough tillage has taken the place of that wasteful, but 
 easy use of water, which is substituted for skill and industry in 
 some other countries which might be mentioned.'^ Tlie generally 
 humble condition of the peasant land proprietors, of south France 
 particularly, and the minute subdivision of land, may be judged 
 from the fact that when the association for the canal de I'Isle, 
 department of ^'^aucluse, was set on foot in 1845, there were 1,414 
 subscribers, of whom 1 ,095 desired irrigation for tracts less than 
 one hectare (2.47 acres) each, and 205 others for tracts less than 
 
 ' See, Moucvieff, pp. 38, 39. 61-63, 76, 77, Chap. II; also, Barral. 
 
 '' It is not to be understood from this, however, that the use of water in 
 France is particularly economical. As will be shown in a later part of this 
 report, such is not the case. 
 
INFLUENCES RETARDING ENTERPRISE. 145 
 
 two hectares, and, out of the whole number, only four subscribed 
 for areas greater than ten hectares (24.7 acres) each. 
 
 The St. Julian canal, eighteen miles in length, irrigating from 
 6,000 to 7,000 acres of land, is the property of an association of 
 irrigators, having 2,060 members; and the Crillon canal, irriga- 
 ting 1,600 to 2,000 acres, has 7o() subscribers to its construction 
 and maintenance ; these cases showing from three to three and a 
 half acres in one instance and from two to two and a half acres in 
 the other as an average to the subscribing proprietor or irrigator. 
 "This minute subdivision of land seems to be at once the pro- 
 moter and the hindrance to the extension of irrigation in France. 
 It is these peasant proprietors alone, who till their own fields with 
 their own hands, who fully appreciate irrigation." Without it 
 their lands require less labor than can be put on them to advan- 
 tage with it;, and their spare time must be spent in labor for hire 
 which is uncertain and not very remunerative. A^'ith irrigation 
 their time may be fully occupied on their own lands and their 
 labors be rewarded by sure and abundant harvests. 
 
 The large land proprietor, on the other hand, who lets his land 
 out to tenants, reaps less direct benefit from irrigation, for the 
 tenants, alleging that much labor is bestowed on works that re- 
 main with the estate, refuse to pay materially higher rents by 
 reason of irrigation facilities. Hence, the larger landholders cul- 
 tivate their fields in cereals and other crops not requiring irriga- 
 tion, and taking less constant and skilled attendance and labor 
 than do those irrigated; and, hence, as a general thing, in this 
 south of Prance, where irrigation is most necessary, were it not 
 for the desire of the smaller proprietors for irrigation on their 
 tracts, many existing canals would not have been built when they 
 were, or perhaps not at all. The greater appreciation of and de- 
 sire for irrigation, by small proprietors than by large, is attested 
 by the figures heretofore given for the case of the canal de ITsle, 
 and by the fact that in this case the small proprietors generally 
 subscribed for water for the whole or at least half the areas of 
 their lands, while the few large proprietors who interested them- 
 selves at all in the undertaking, subscribed for very small por- 
 tions of their estates. 
 
 10^ 
 
146 FRENCH IRRIGATION LEGISLATION. 
 
 Heavy Cost of Works — Poverty of Peasants.^ 
 
 And now, where irrigation has not yet been introduced, these 
 peasant proprietors are poor and have no credit, individually; so 
 that the want of capital among them, and the apathy of the 
 larger proprietors, forms the greatest drawback to the further 
 extension of irrigation. In this condition of affairs a great trou- 
 ble met with in the promotion of irrigation enterprise is the diffi- 
 culty of securing subscriptions for water for a reasonably large 
 proportion of any compact district, so that the lands subscribed 
 for, being in small parcels and scattered, the works are made 
 very much more costly to the unit of area irrigated than they oth- 
 erwise would be, and the cost of maintenance and administration 
 is greatly increased. In the case of the canal de I'Isle, already 
 spoken of, the total cost of construction for all works was esti- 
 mated at about $23 per acre for lands subscribed for, as against 
 $6 50 per acre if all the irrigable lands in the district had been 
 subscribed for and the works made adequate to supply water for 
 them. 
 
 High Valuations of Lands.'' 
 
 Another great drawback to the advancement of irrigation is the 
 high price that land commands without water, and the high price 
 of rights of way. In the region spoken of, dry valley lands range 
 in price from $300 to $800 per acre, while if commanded by a 
 canal for irrigation, and ha^dng a subscription for water, they are 
 worth only about thirty to fifty per cent more, according to cir- 
 cumstances. ' 
 
 Now, in California lands purchasable at $3 to $10 without 
 opportunity or reasonable hope of irrigation, command $50 to 
 $200 per acre when water is brought to them and they have the 
 privilege at hand to receive and pay for irrigation. There has 
 been no such opportunity to speculate in lands in France, in 
 connection with irrigation enterprise, as there has been in Cali- 
 fornia, and, thus, a great incentive to the construction of works 
 has not been present there that has been afforded here. 
 
 The Riparian Rights Qnetition. 
 
 The riparian rights question which has come up, as we have 
 seen, in a peculiar form in France, and the right-of-way question. 
 
 ' See, Moncrieff, Chap. II. 
 
 '^ See, Moncrieff, Chap. II; also, Bavral. 
 
INFLUENCES RETARDING ENTERPRISE. 147 
 
 also distinctive in its character, have held back irrigation enter- 
 prise immeasurably, but the conservative business temper and 
 poverty of a large element of the agricultural population, and the 
 indifference of the landed capitalists to the development of an 
 industry which was calculated to render the care of estates more 
 burdensome, has done much more to prevent advancement in this 
 line of enterprise. 
 
 Meanwhile, it has been the object and apparently the earnest 
 desire of the government, not only to provide by legislation some 
 means of directly meeting and setting aside the circumstances 
 and retarding influences spoken of, biit to impart an active im- 
 pulse to agricultural development by enterprise in irrigation. It 
 now remains to be seen what means have been employed with 
 this ^iew. 
 
 SECTION II. 
 
 Irrigation CoirpANiES and Associations. 
 
 Spccvlatrve Companie-'<} 
 
 Although not an invariable rule, the form of irrigation enter- 
 prise in France, and of government encouragement thereto, has 
 been largely governed by the character of the stream — whether 
 floatable or non-floatable — from which it was necessary to derive 
 the supply of water in each case. 
 
 From floatable streams — dependencies on the public domain — 
 the government, exercising the full right of state ownership, could 
 authorize diversions by and encourage the construction of works 
 on the part of any worthy applicant for concessions. And, hence, 
 capitalized companies of non-landholders have sought and ob- 
 tained sanctions and privileges for the construction of works from 
 such streams. The character of these organizations and their 
 method of operation in the enterprises undertaken, will be of 
 necessity sufiiciently illustrated in the next section of this chap- 
 ter, in speaking of the policy pursued by the government towards 
 them, and, hence, nothing further will be said of them here. 
 
 ' See, De Passy, pp. 103-130; also, Dumont. 
 
1 48 FRENCH IRRIGA TION LEGISLA TION. 
 
 Associations of Land Owners} 
 
 On streams not of the public domain another form of organi- 
 zation for works has been necessary. Remembering that water 
 rights for purposes of speculative canal enterprise, are not to be 
 acquired on streams not declared navigable or floatable, that the 
 waters are held for the bank lands, and that land holdings are, 
 as a very general rule, in small parcels, we see that individual 
 enterprise in canal building from such streams, is kept within 
 very narrow limits. 
 
 The waters are dedicated to the use of the riparian proprietors 
 for the irrigation of their river lands — the water, in a measure, is 
 attached to the lands, to the extent of their necessities, and can- 
 not be alienated. A proprietor, by buying back land adjacent to 
 his bank land, can to some extent increase the width of his irri- 
 gable area, but the courts and the administration — the one re- 
 stricting the extent of his water privilege, and the other the size 
 of his headworks — would very soon stop any attempt at an exten- 
 sion in this way which was not equitable to other proprietors. 
 Furthermore, rivers of this class in France generally run in val- 
 leys whose lands slope down towards the streams (and not, as do 
 many streams in California, across plains which slope back each 
 way from the stream), and, consequently, canals of short length 
 cannot command any considerable width of territory for irriga- 
 tion. 
 
 These circumstances have resulted in the construction of a great 
 number of very small ditches, where, as is fretpently the case, the 
 grade of the streams has been sufficiently rapid to admit of the 
 water being brought out upon the land within the limits of one, or 
 at most, several land holdings. The scope of these individual 
 and partnership enterprises has been, until within a few years in 
 the past, still further restricted by the absence of any legal means 
 of acquiring right of way for a canal through, or right to build a 
 dam on or next to the lands of others. The leading writers on 
 irrigation dwell upon the great drawback to irrigation in France, 
 which has resulted from these circumstances. 
 
 Furthermore, the simple partnership association which would 
 answer as a business arrangement between several neighbors, for 
 
 ' See, Dumont, Book II, C'haij. VI, Sec. 1; De Buffon, Vol. 2, pp. «)-rj«; De 
 I'assy, pp. 7!)-102. 
 
IRRIGA TION A SSO CIA TIONS. 149 
 
 the constraction of a little private ditch, would not answer for the 
 organization of a large enterprise for the benefit of perhaps several 
 hundred or thousand land holdings. The French agriculturists 
 appear to have been extremely jealous and careful of their rights; 
 desiring to have and hold them, as near as possible, immediately 
 luider their personal control, and hence have not adopted forms of 
 association which would be popular in this country. 
 
 These circumstances led to the passage of laws recognizing the 
 form of organization known as a syndicate association, which is 
 that now generally adopted bj' landholders for the conduct of 
 works on joint account, necessary in the development, in any way. 
 of agricultural neighborhoods. A syndicate association is a soci- 
 ety of land owners, organized according to general forms prescribed 
 by laws and decrees, but with terms of organization arranged ac- 
 cording to the will of the members, as embodied in the articles of 
 association. 
 
 An AnaJ}/'<is of the Law of Association.^ 
 
 The law recognizes eight purposes for which sj-ndicate societies 
 may be formed, as follows : 
 
 FirM — The construction and management of embankments and 
 other works for protection against the sea, torrents, and the waters 
 of non-na-\-igable rivers. 
 
 Second — The cleansing, deepening, straightening, or regulating 
 canals and water-com-ses not navigable nor floatable, and of irriga- 
 tion and drainage canals. 
 
 Third — The construction and management of works for the 
 drainage of fresh water marshes. 
 
 Fourth — The construction and management of works for the 
 reclamation of salt marsh lands. 
 
 Fifth — The construction and maintenance of works for the sani- 
 tary improvement of wet and unhealthful districts. 
 
 Sixth — The construction and management of works for irrigation 
 and colmafage. 
 
 Seventh — The construction and maintenance of works of land 
 drainage. 
 
 Eighth — The construction, maintenance, and management of 
 roads and every other improvement of agricultural lands and 
 neighborhoods, which requires cooperation amongst proprietors. 
 
 ' See, particularly, De Buffon and He Passy, as cited; also, law of June 1, 1865, 
 Decree of November 17, 1863, and the Ministerial Regulation — Appendices 2, ;h, 
 and 4, De Passy. 
 
150 FRENCH IRRIGA TION LEGISLA TION. 
 
 The general organization of associations is the same for all of the 
 purposes specified, but the details of agreement and administration 
 differ with the object in view. The forms and provisions ordinarily 
 followed and adopted in and by associations for irrigation, only, 
 will be spoken of here. The law recognizes two kinds of syndicate 
 associations: The first Called "free," because held together only by 
 the expressed will of the members; and the second called "author- 
 ized," because specially declared, in each case, to constitute an 
 organization of public utility, and so "authorized" to exercise the 
 right of eminent domain in condemning private property for the 
 purposes of the association. 
 
 These societies are formed upon the basis of the land to be 
 beneficially affected by the works contemplated; representation 
 and voting power in the general assembly of subscribers being pro- 
 portioned somewhat to the area held, varying in different cases, 
 within prescribed bounds, according to circumstances and as de- 
 termined and settled in the constitution or articles of agreement of 
 the society. Their boards of directors called syndics constitute the 
 syndicate proper, although the whole association is frequently called 
 a syndicate. Being legally constituted bodies, they can enter into 
 court, acquire or dispose of, exchange or hypothecate property, 
 and do all that an individual might do in a business way. 
 
 Free Syndicate Associations. 
 
 Free syndicate associations are formed by the declaration of the 
 associates, and the signing of the agreement of association, etc., as 
 follows: The agreement or act of association specifies the object of 
 the enterprise, regulates the mode of administration of the society, 
 and fixes the limit of authority confided to the administrators or 
 syndics. It determines the ways and means necessary for the 
 raising of funds, and the mode of collecting assessments or sub- 
 scriptions. It must be published in a journal of official announce- 
 ments, and copied into the records of the prefecture. 
 
 In the case of an association formed for the construction, main- 
 tenance, and management of irrigation works, all proprietors of 
 lands susceptible of irrigation, within the district, must be admit- 
 ted as members should they desire to join; each designating the 
 lands and the area thereof for which he desires to subscribe. The 
 volume of water conceded is ordinarily divided amongst the pro- 
 prietors in proportion to the area subscribed for, and without refer- 
 
IRRIGATION ASSOCIATIONS. 151 
 
 ence to the kind of crop or character of land cultivated and worked. 
 These terms being fixed by the articles of association in each case, 
 and not by the law, are variable, according to the will of the asso- 
 ciates. The right of irrigation goes with the land subscribed for, 
 and cannot be alienated or passed to other lands. 
 
 Each associate is bound to accord right of way for ditches 
 through his land, upon payment of indemnity fixed by arbitra- 
 tion. Each associate is a member of the general assembly, having 
 voting power according to the terms of the agreement in each case. 
 Sometimes the vote is by units of land area between certain limits, 
 a minimum area and a maximum area to a vote, or, for instance, 
 one vote to each holder of from one to five hectares. Thus the 
 proprietor owning between one and five hectares (2.47 to 12.3.5 
 acres), would have one vote each; those between five and ten hec- 
 tares, two votes each, and so on, a vote to each five hectares or 
 fraction not less than one hectare. 
 
 The general assembly elects directors, called syndics — five, seven, 
 nine, or more, as the case may be — who form the syndicate, or 
 board of management of the association. In some organizations 
 the syndicate is all powerful — ^in others, mam- questions have to 
 be submitted to the general assembly for final settlement. The 
 syndicate name from their number a manager or general du-ector, 
 who is the chief executive officer of the association. Other ofii- 
 cers, as secretary, treasurer, etc., are similarly named, as in socie- 
 ties whose organization is familiar to everybody. 
 
 The syndicate employs an engineer, and all projects for work 
 are dvtly and completely drawn up and adopted by the board 
 before construction is authorized. The cost of works and expenses 
 of management are ordinarily borne in proportion to area sub- 
 scribed for, and without reference to value of lands or crops, or 
 character of cultivation or soil. Assessments under the law are 
 made collectible as taxes, and are a lien on the property sub- 
 scribed for. 
 
 Autfwrized Syndicate Associations. 
 
 All syndicate- associations must be first formed as free associa- 
 tions, and they may then apply to the administration for recogni- 
 tion as authorized associations. The prefects of the provinces 
 have authority to make these decrees of recognition and authoriza- 
 tion, following after certain forms and instructions epibodied in 
 decrees and laws of the general government. 
 
152 FRENCH IRRIGA TION LEGISLA TION. 
 
 The application to the prefect must be accompanied by plats 
 of the proposed district, including the lands to be irrigated, 
 each parcel being designated and tinted with a color representing 
 its condition as to cultivation, soil, etc., and whether or not it is 
 irrigable, and if so whether or not it is subscribed for in the asso- 
 ciation. A list of subscribers accompanies these plats, and a 
 statement of the financial ability of the subscribers to meet their 
 engagements. A regular project for works and for financial man- 
 agement is also submitted, from which to judge of the feasibility 
 and cost of the scheme and the adequacy of the organization to 
 carry them out. 
 
 The law provides that the desire of the members of the free asso- 
 ciation, to have it converted into an authorized association, must 
 be expressed in general assembly, as follows: "If the majority of 
 the individuals interested, and representing two thirds of the area 
 of land subscribed for, or if two thirds of the individuals owning 
 more than one half of the area of land subscribed for," desire the 
 change, the prefect, being satisfied of the soundness of the enter- 
 prise in other respects, issues the decree of authorization. The 
 application must show, in addition to all the above, the plan of 
 the organization, the plan of representation in the general assem- 
 bly and the basis for voting, as well as the basis for the division of 
 expenses. 
 
 Following this application a public announcement is made. 
 The application is published, and the plans, etc., are opened to 
 inspection and comment and everything opened to objection. 
 Each proprietor of lands affected is notified as to the application, 
 and requested to appear at the prefectorate if he has any objec- 
 tions or criticisms to make. A register is exposed, in which every 
 interested party may write his remarks and criticisms. A com- 
 mission of landholders not interested is appointed to report on the 
 results of the examination. 
 
 These and other formalities, taking a month or more according 
 to circumstances, being gone through with, the prefect considers 
 the case and renders his decree of authorization or refusal. The 
 action of the prefect one way or the other inay be appealed from, 
 to the minister of public works. 
 
 PirfrctorinI Power — Governmental Policy. 
 
 Prefects hiay refuse to issue decrees of authorization for associa- 
 tions, for various causes, amongst which are the following: The 
 
IRRIGATION ASSOCIATIONS. 153 
 
 district not being large enough to render its works of public util- 
 ity; the proposed works themselves not being sufficiently impor- 
 tant to justify the foundation of an authorized association; the 
 district not comprehending the area it should take in, and other 
 proprietors desiring to come in; the lands within the district not 
 being sufficiently subscribed for. 
 
 In the case of authorized associations the government in a 
 measure becomes accountable for the meeting of their engage- 
 ments, so that the assessments are not only collectible as taxes 
 by the officers of the syndicate, but the government authorities, if 
 necessary, may interfere and force their collection so as to make 
 good the debts of the district. 
 
 Condemnation of lands for the benefit and use of the association 
 is conducted by the syndicate in conformity to a general law pro- 
 viding for the condemnation of private interests for the public 
 good, but this can be done only after a declaration of public util- 
 ity has been made in favor of the proposed works in each case by 
 the council of state, or by a special law. 
 
 In cases where the association asks a subsidy from the govern- 
 ment funds, or from those of the department, it is always provided 
 that the prefect may name a number of syndics to represent the 
 state or the department in the syndicate, in proportion to the part 
 of the whole cost of the works which the subsidy provides for. 
 
 In cases where the association is formed for irrigation, or any 
 purpose where water is desired as an auxiliary to some operation 
 to be carried forward, the formation of the society may be had for 
 only a portion of the district embraced within the exterior limits 
 of lands subscribed for; but in cases where, as in reclamation or 
 drainage, all of the lands in the district are necessarily affected 
 by the works, .the whole area is brought under contribution, and 
 ■when two thirds of the land is subscribed for, the other third is 
 forced to contribute its share to the expense. 
 
 This rule is the outcome of a long struggle in Prance', in which 
 it has been proven, that some landholders will always hold back 
 and prevent necessary public improvements, and that the interests 
 of the public demand, in cases of reclamation and drainage, that 
 they be made to join in with the majority in their district, or sell 
 out to those who will carry forward the works. And the tendency 
 of events and sentiment is towards a similar policy with respect 
 to irrigation district enterprise, also. 
 
] 54 FRENCH IRRIGA TION LEG I SLA TION. 
 
 AUTHORITIES FOE CHAPTER VII. 
 
 Reclus, — [Work uited as authority for Chapter II.] See chapters, "France." 
 
 De Passy.— [Work cited a.s an authority for Chapter II.] See, particularly, pp. 
 79-102, 103-130, and Appendices 2, 3, and 4. 
 
 Dumont. — [Work cited as an authority for Chapter II.] See, particularly, Book 
 
 II, Chap. VI, Sec. I. 
 De Buffon. — [Work cited as an authority for Chapter II.] See Vol. I, Sec. 1; 
 
 Vol. II, pp. 89-98. 
 Bairal. — "Irrigation in the Department of the Mouths of the Rhone." By J. A. 
 
 Barral; being an official report of a Government Commission of In- 
 quiry into the subject of the use of Waters in Irrigation in France; 
 
 2 vols, quarto ; Paris, 1876-77. 
 Barral. — " Irrigation in the Department of Vaucluse." Same set of reports as 
 
 the preceding; 2 vols, quarto; Paris, 1877-78. 
 Mangon. — "The Employment of Water in Irrigation." M. Hervfi Mangon, a 
 
 Chief Engineer in the Government Corps of Civil Engineers, France; 
 
 Ivol; Paris, 1869. 
 Moncrieff. — " Irrigation in Southern Europe." By Lt. C. Scott Jloncrieff, Royal 
 
 Engineers, Great Britain ; 1vol. 8vo. ; London. 1868. See. particularly, 
 
 pp. 38, 39, 61-63, 76, 77. 
 
POLICY AND ENTERPRISE. 155 
 
 OHAPTEE VIIL-FEANOE'"; 
 GOVEENMENTAL POLICY AND lERIGATION OONCESSIONS. 
 
 Section I. — Features of Policy and Form.s of Enterprise. 
 Political and Social Conditions. 
 
 Forms of Governmental Encouragement of Irrigation. 
 Early Irrigation Enterprise. 
 Tax Rebate on Advanced Values. 
 Subsidies, Advances, Loans, and Guarantees. 
 Prize Competition in Irrigation Practice. 
 Statistical Atlas of Irrigation. 
 
 Sectiok II. — Notaile Instances of Enterprise and. Encouragement. 
 The Canals — Des Alpines, Carpentras, 
 Cadenet, St. Marterey, Siagne. 
 iSiagnole, Bourne, Rhone, 
 Vesubie, Pierre-latte, Manosque, 
 Herault, Ventavon, Petite-Vence, 
 Malpas, St. ilarcel, Argeliers, and Raouel. 
 
 SECTION I. 
 
 Features of Policy and Forms of Enterprise. 
 
 Political and Social Conditions. 
 
 The French government, although apparently always appreciat- 
 ing the value 6f irrigation to all France, and directly favoring 
 irrigation enterprise, as we shall see, by several important meas- 
 ures of policy, has not, as in the case of interior navigation and 
 the promotion of arterial drainage and consequent land drainage 
 or reclamation of lands, directly taken the lead in the construc- 
 tion of works for the purpose, at public expense and wholly under 
 national management, except in cases where the submersion of 
 vines to exterminate the phylloxera vine pest was a pressing con- 
 sideration, or in large districts where the landholders were excep- 
 tionally poor and without credit. 
 
 Rivers were improved and made navigable where before unfitted 
 
156 FRENCH IRRIGA TION LEGISLA TION. 
 
 for the purpose, and great canals constructed for navigation, as 
 public works of the nation, more than a century ago. The poUcy 
 which prompted this action has ever been in the ascendency, and 
 was quite fully developed under the last empire, and has been 
 renewed and enlarged upon by the present republic ; but towards 
 irrigation, the policy has been rather to encourage the eflforts of 
 landed proprietors in constructing their own works, or to encourage 
 the investment of capital in irrigation enterprises upon terms such 
 that, at the expiration of long periods, of years, the works should 
 revert to associations of the owners of the lands irrigated, or to the 
 central, departmental, or municipal governments, for the benefit of 
 the people. 
 
 It is to be remembered that all of the irrigable lands were in 
 private ownership — the government not having any irrigable pub- 
 lic domain — and that in the view of men of broad ideas, such as 
 the rulers of the country have probably been, all France was an 
 irrigation country, and should the government undertake the con- 
 struction of works for the irrigation of one section, without some 
 specially potent reason, it should for equally good reasons bring 
 water to the irrigable lands of all the people. 
 
 Furthermore, the French agriculturists — although largely com- 
 posed of a peasantry inferior to American farmers in enterprise, 
 wedded to old habits and customs, and comparatively slow to 
 take up with and realize the lessons of experiences had else- 
 where — have never stood in that dependent relation to their gov- 
 ernment, which those of Egypt and of India, where nearly all 
 irrigation works are built and managed by the governments, have 
 to theirs. The French government realized this difl'erence in the 
 people and the political and social conditions of countries, when 
 in its province of Algeria it pursued a different course towards 
 irrigation, and, following in the footsteps of the khedives of Egypt 
 and the English rulers of India, constructed great irrigation reser- 
 voirs, canals, and ditches, as public works of the nation. 
 
 Forms of Gorcrnmcntnl Encouragement. ^ 
 
 As we have seen, irrigation enterprise in Prance has taken three 
 forms : 
 
 ' See, De Tassy, Dumont, iinil Jtalapert; but, particularly, the various laws 
 making concessions to companies, societies, t.nd associations as hereafter 
 quoted, and many others to be found in the volumes of Les Annales des Fonts 
 ct ChnusKf'ci. 
 
GOVERNMENTAL POLICY. 157 
 
 F\i-)i[ — In the construction of works on private account for the 
 benefit of private lands, In' one or several land proprietors jointly. 
 
 .S'('co)!(i-=— In the construction of works for the common good of 
 the owners, by associations of land proprietors. 
 
 Thin} — lu the construction of works b}' individuals, companies, 
 or municipalities, for the distribution and sale of water to con- 
 sumers. 
 
 The government has encouraged all these forms of enterprise, 
 and has also encouraged tlie skillful and economical use of water 
 in irrigation by the individual irrigator. This policy of direct 
 encouragement has in application taken various forms, as follows: 
 
 Fmi — A remission of tax assessments, for certain long series of 
 years, on the increase of land valuations due to irrigation. 
 
 Second — The loaning of funds on favorable terms to companies 
 or associations undertaking irrigation works. 
 
 Third — Advancing to such companies or associations a large 
 part of the cost of their works, and taking the works themselves 
 in payment at the expiration of long terna concessions. 
 
 Fourth — Subsidizing enterprise in the construction and manage- 
 ment of irrigation works, by payment of large sums to the sole 
 benefit of the companies or associations, or that of the depart- 
 ments, mimicipalities, or irrigators ultimately acquiring ownership 
 of the properties. 
 
 Fifth — Guaranteeing interest on capital invested in or borrowed 
 on great irrigation works. 
 
 Sixth — Construction of main irrigation works at state expense 
 and turning them over to syndicate associations for management. 
 
 Screnth — Construction and management of irrigation works 
 wholly as public works of the state. 
 
 Eighth — The inviting of competition in and granting premiums 
 for the best irrigation practice. 
 
 Ninth — The collection of irrigation statistics and useful data of 
 irrigation practice, and the publication thereof for general infor- 
 mation. 
 
 Early Irrigation Enterpris^e} 
 
 The first works of irrigation, other than purely individual enter- 
 prise, constructed in France, were made under grants of right 
 from the counts, and were combined with and secondary to those 
 for wa4;er-power purposes. Thus, in 1171 Raymond V, Count of 
 
 ' See, M. Conte in Les Annates des Fonts et Chausis6es; also, Barral. 
 
158 FRENCH IRRIGA TION LEGISLA TION. 
 
 Toulouse, in the south of France, granted to the bishop of Cavail- 
 lon the excUisive right to divert water from the Durance, a river 
 carrying 3,000 cubic feet per second at its low stage, into canals 
 for the purpose of supplying power for cornmills to be erected. 
 The bishop constructed a work known as the St. -Julian canal, 
 and sixty-four years afterwards granted to the inhabitants of Cav- 
 aillon the right, for which they had applied, to use the waters in 
 irrigation. This led to an enlargement and extension of the canal 
 and an agreement as to the distribution of expense for mainte- 
 nance of the work, and to this day, in accordance with this ancient 
 usage, those who use water for power pay one third the annual 
 expense, while those who use it in irrigation pay the other two 
 thirds. This was one of the first, if not the first enterprise of 
 which there is record, in which a trace of encouragement to irriga- 
 tion on a large scale is to be detected. 
 
 Permits for water for irrigation from canals constructed by gov- 
 ernment for purposes of navigation, were granted in the early 
 period of public works enterprise, but these were for very small 
 (juantities of water and to individual farmers or small communi- 
 ties only. At a later period in the construction of some govern- 
 ment canals for navigation, irrigation, as well -as the supply of 
 water for motive power, for industrial uses, and municipal domes- 
 tic purposes, was considered, and the works planned so as to pro- 
 duce a current from the main source of supply, such that while 
 navigation was not impeded the other interests were to some extent 
 subserved. But these instances have been exceptional in the 
 planning of public works, and it cannot be said that irrigation has 
 received generally any material help in this manner until within 
 the past few years, when quite a number of small canals have been 
 built out from the main canals of navigation, in part for purposes 
 of irrigation, but chiefly with the inmiediate view of preventing the 
 spread of or destroying the phylloxera by flooding the vineyards. 
 
 Tax Rchair on Adra.nn'd Land Vdlues. 
 
 The first form that direct encouragement to irrigation enterprise 
 on a large scale took in France, was that of an engagement, on the 
 part of the government, not to raise the assessed valuation of the 
 lands brought under irrigation above what it had been before irri- 
 gation, for a ])eriod varying from twenty to thirty-five years after 
 the waters were introduced on them, and not to tax the works of 
 irrigation at all for some such like period, but only to assess the 
 
GOVERN ME XTAL POLICY. 159 
 
 lands occupied by them, as they had been assessed before. In 
 the case of the Carpentras canal, in south France, constructed in 
 18,i;t-5-1:, this period was fixed at twenty-five years after the con- 
 struction was completed, according to plans, specifications, and 
 agreement. 
 
 This was a species of encouragement more especially in the inter- 
 est of land proprietoi-s, who would unite in an association, iinder 
 terms of law, over a sufficiently large area to promise a develop- 
 ment calcvdated to be of future importance to the country, and who, 
 under governmental super\'ision. undertook to construct substantial 
 works to insure such development by the irrigation of their lands. 
 Even with this encom-agement, irrigation made slow progress in 
 France. Great areas of country stood much in need of it; other 
 considerable regions were in a condition to be greatly benefited 
 by it, but the spirit of enterprise did not seem to take hold of the 
 landholders, in the cause. 
 
 The rich did not want to adopt a system of agricultm-e calcu- 
 lated to make advisable the expenditure of much more labor on 
 their farms, and to require a much closer attention to their estates; 
 and they did not generally appreciate tlie moneyed value of irri- 
 gation properly conducted. 
 
 The poor landholders in many quarters were not awakened to the 
 results of experiences in irrigation favorable to their class in other 
 quarters, were wedded to old habits and customs, were jealous of 
 the slightest move calculated in any way to interfere with their 
 full control of their little home grounds. They did not miderstand 
 and could not ap|)reciate the benefits of association of interests for 
 common good in districts. They each would like to have a canal 
 or ditch of their own, but did not want to join with several hun- 
 dred or thousand others to get one jointly. Further than tliis, their 
 poverty often, though their conservatism were overcome, stood in 
 the way of their undertaking large works, even when they might 
 combine for the purpose; and, as we have seen, the laws them- 
 selves hampered the spirit of enterprise on non-na>'igable streams, 
 by the water-right complications which the riparian right and 
 other rules had brought about. 
 
 Sub^idifs. Adrances. Loans, mid Guarantees of Interest or Income. 
 
 Government encouragement then took the forms of loaning 
 funds for long terms on irrigation works, advancing part of the 
 
1 60 FRENCH I R RIG A TION LEGISLA TION. 
 
 cost of the works, and taking the works themselves in payment 
 at the end of long terms, and subsidizing large irrigation enter- 
 prises, without return other than nominal. These forms of encour- 
 agement were more directly intended to give irrigation projects 
 good financial standing, and to enable capital to enter into the 
 field of enterprise with a certainty of a moderately good return. 
 
 Being incident to the construction and management of works, 
 and not to the ownership or tillage of lands, these measures ad- 
 dressed themselves to capitalized companies or societies; and a 
 number of such organizations have sought and taken up with gov- 
 ernment offers of this kind, binding themselves to construct works 
 according to prefixed and approved plans, to maintain and man- 
 age them under prearranged regulations and governmental super- 
 vision, to deliver water for irrigation, etc., at predetermined rates, 
 and, finally, to return the money borrowed, or turn over the works 
 to the government or a department, or, perhaps, to a syndicate of 
 landholders, at the expiration of the term of the concession. Direct 
 subsidies, without return, have only been granted to syndicates of 
 landholders, and presumably in cases wherein their financial con- 
 dition was poor and their credit bad, and not to capitalized com- 
 panies, as in the cases of the encouragements by loans or advances 
 on cost of works. These measures of encouragement brought 
 about also the organization as capitalized companies, of a number 
 of associations of irrigators, who have sought to derive not only the 
 advantages of the first measure, in the limitation of taxing valua- 
 tions, but also the benefits of loans, advances, and subsidies. 
 
 Prize, Competition in Irrigation Practice.^ 
 
 The final measure of financial encouragement to irrigation which 
 the French government has instituted of late years, is that of giv- 
 ing premiums for the best examples of irrigation practice in the 
 several great irrigation centers, the convoking of meetings of irriga- 
 tors and lan^ owners on the occasion of making the examinations 
 of competing tracts, and the publication in great detail' of all val- 
 uable and practical facts about irrigation acquired by these exam- 
 inations, meetings, and discussions for general information. From 
 the first report of Mr. Barral, the reporter of the commission or jury 
 appointed to conduct the first of these proceedings in the depart- 
 ment of the Mouths of the Rhone in 1875, I take the following. 
 
 ' See, Barral, particularly, Chaptersi I and II of each volume. 
 
GOVERNMENTAL POLICY. 161 
 
 general account of the origin, purpose, and progress of tlie move- 
 ment; 
 
 "The minister of agriculture, vividly impressed with the role 
 that irrigation plaj's in the practice of agriculture in the south of 
 France, and the necessity for showing to the agricultural popula- 
 tion all that can be derived from irrigations properly conducted, in 
 the interest of individuals or the wealth of the country, resolved 
 to institute for five years in the department of the Mouths of the 
 Rhone, a convention of agriculturists, whether proprietors or rent- 
 ers, who have used w-aters from the different irrigation canals in 
 an intelligent manner." — [Barral, Vol. I, Chap. I. 
 
 Prizes and medals were promised by a decree of June 2, 1874, 
 to those whose use of irrigation waters could be shon^n to have 
 been the most systematic, economical, effective, and remunerative. 
 This decree of the minister of agriculture, representing the govern- 
 ment, was as follows: 
 
 "The minister of agriculture and commerce, with the object of 
 encouraging the efforts that tend to the progress of agriculture, and 
 especially to cultivation by irrigation, looking at the losses occa- 
 sioned by phylloxera, and the necessity to transform or increase 
 the production of irrigable land; looking at the notice of the in- 
 spector-general of that region (the ]Mouths of the Rhone); on the 
 proposition of the director of agriculture, issues this: 
 
 "Decree: 
 
 "Article 1st. Rewards are offered in the department of the 
 Bouches du Rhone, in 1875-6, '77, '78, and '79, to agriculturists, 
 proprietors, or renters, who have utilized in the most intelligent 
 manner the water of the different irrigation canals. 
 
 "Article 2d. These rewards are divided in the following man- 
 ner: 
 
 "First Class — Properties containing more than four hectares 
 (about 10 acres) of irrigated land — 
 
 "1st prize— Gold medal, and 1,000 frcs. ($260). 
 
 "2d prize — Silver medal, large size, and 700 frcs. ($140). 
 
 "3d prize— Silver medal, and 600 frcs. ($125). 
 
 "Second Class — Properties irrigated to an extent, of four hec- 
 tares and less — 
 
 " 1st prize— Gold medal, and 600 frcs. ($125). 
 
 "2d prize— Silver medal, and 500 frcs. ($100). 
 
 "3d prize — Bronze medal, and 300 frcs. ($60). 
 
 "Article 3d. A work of art would be bestowed on the winner 
 of the first prize of one of the above classes, if recognized or 
 judged worthy of being specially rendered noticeable for the 
 economical management of water in the practice of irrigation. 
 
 11' 
 
162 FRENCH IRRIGA TION LEGISLA TION. 
 
 In case of the gift of the work of art, the gold medal, for first 
 prize, will not be bestowed. 
 
 "Article 4th. The statement of the contestants, containing an 
 explicit note and an exact indication of the extent irrigated, cer- 
 tified by the mayor of the commune, must be addressed to the 
 prefecture of the Bouches du Rhone, on March 1st, current year, 
 at the latest. 
 
 "Article 5th. The director of agriculture is charged with the 
 execution of the present decree. 
 
 " Made at Versailles, June 2d, 1874. 
 
 " L. GRIVART, Minister, etc." 
 
 In 1875, besides the very general interest awakened amongst 
 all agriculturists in the region, there were thirty-nine competitors 
 for the rewards or prizes, and each property and system was 
 made the subject of special study by the commissioner or jury. 
 
 M. Barral says: "This study presented great interest. The 
 question was not only that of the competition for the prizes, but 
 was also that, which is of a higher order, of ascertaining the 
 services rendered by the water in giving a more abundant pro- 
 duction, and in the protection of vines against the attacks of the 
 phylloxera. The examples of irrigation practice reported are of 
 the highest importance to agriculture, and of great use to those 
 who are in a position to usefully employ water in cultivation. 
 
 " The circumstances under which these cultivations were found, 
 in response to the offer of the government, are varied enough to 
 justify the drawing of general conclusions from the facts observed. 
 These conclusions show that a great increase of wealth would be 
 the result for national agriculture, were works undertaken on all 
 water-courses capable of being transformed into irrigation canals 
 or capable of feeding such canals. In view of these things the 
 judge-advocate of the jury received orders to enter into all the 
 details of the subject. His statement must contain all informa- 
 tion needed in the practice of irrigation, and, also, all that might 
 be of service to the officers of the public administrations. 
 
 " With the view of making a network of canals all through the 
 country, it is important to encourage the forming of companies 
 or associations having power to construct works, and to develop 
 amongst the rural population the habit and skill of using water 
 in irrigation systematically; to incite land owners to engage in 
 irrigation enterprise and advance the funds necessary for the 
 diversion of large streams with the certainty of receiving consid- 
 erable profit from it. 
 
 " The object of this report, therefore, is not only to point out by 
 the proof of facts that can easily be verified, the justice of the 
 decisions in the competition of the year, but to make known to all 
 agriculturists, and to land owners, what an enormous source of 
 wealth water is, and in particular, that to-day it has become, in a 
 
GOVERNMENTAL POLICY. 163 
 
 great many places, the providential means of saving the vine- 
 yards from the attacks of an underground enemy (the phylloxera) 
 which threatens to make them disappear." 
 
 To give an idea of the extent of and importance attached to 
 this governmental move in the interests of irrigation, I mention 
 the fact that the commission, or "jury," placed in charge of the 
 examinations, awarding of premiums, and reporting results, was 
 composed of (1) the inspector-general of agriculture of France, 
 president; (2) a deputy inspector-general of agriculture, vice-pres- 
 ident; (3) the life secretary of the central society of agriculture of 
 France, reporter; (4) the general secretary of the society of agri- 
 culture of the department of the Mouths of the Rhone; (5) the 
 director of the agricultural college of Paillerols, Lower Alps; (6) 
 an engineer of the government civil engineer corps, and (7) the 
 ■vice-president of the society of agriculture of the department of 
 the Herault. And it is further notable in this connection that 
 the reports of this commission for the three years of 1875-76-77 
 take up four large quarto volumes, containing 1,980 pages of 
 printed text with numerous maps and tables. 
 
 The decree quoted was for the one year of 1875, and the one 
 department of the Mouths of the Rhone, and was not only fol- 
 lowed by a similar decree and concourse and awarding of prizes 
 each year in that department, but, also, by like action in other 
 departments; as, for instance, in that of Vaucluse, for which the 
 first, action was taken in 1876. Thus, gradually progressing 
 through all the departments where irrigation is practiced, the 
 government, through its department of agriculture, is not only 
 making this most thorough and intelligent study of the use of 
 water in irrigation, but is directly encouraging the irrigators, in 
 the bringing of them together for discussion, by awarding prizes 
 for the best examples of irrigation practice, and by publishing in 
 detail all the data thus acquired. 
 
 And further than this, not stopping at an examination and study 
 of practice at home, this department has sent well trained and 
 intelligent agricultural engineers to other countries where consid- 
 erable progress is being made in the use of water in irrigation, with 
 instructions to personally study the systems and the practice, and 
 collect all available data, in print and by verbal communication, 
 that may be worthy of attention in the endeavor to enlighten and 
 encourage its own agriculturists and guide its legislative and ad- 
 
164 FRENCH IRRIGA TION LEGISLA TION. 
 
 ministrative officers. Thu8, the irrigation works and practice of 
 California, in common with those of others of the United States, 
 have been recently inspected and studied by a special agent, and, 
 in common with other points where information might be had, the 
 office of the State Engineer of California has been quite thor- 
 oughly examined and data collected therein; and all for the bene- 
 fit of the irrigators and the agriculture of France. 
 
 Statistical Atlas of Irrigation.'^ 
 
 And still again in another channel, we find the spirit of enter- 
 prise and enlightenment moving the French government in this 
 connection. Under a ministerial order issued in 1869 a special 
 commission, composed of nine civil engineers and scientific and 
 practical agriculturists of high standing, was appointed for the pur- 
 pose of " revising, coordinating, and preparing for publication the 
 statistics relative to the amount of water available in the streams, 
 and the use made of it in the various departments of France." It 
 was ordered that the chief of engineers should instruct all depart- 
 mental engineers and conductors engaged in the hydraulic service 
 to collect and forward the information desired from their several 
 fields of operation, according to certain prescribed forms, and that 
 this data should be turned over to the commission for its work. 
 
 The investigation has been progressing continuously, but is yet 
 unfinished. Several partial and local tables have been published, 
 and a set of eighty-five departmental hydrographic maps, which 
 form the basis for the study, have been issued for the use of the 
 collectors. The work is formulated with the view of treating the 
 regulation of the waters and their use, as a business proposition. 
 The government undertakes to find out exai'tly what waters are 
 available from year to year, and exactly what is done with them. 
 The work once done can be kept posted from year to year with 
 comparatively light work and expense, and will furnish that data 
 from which economy and efficiency can be studied and published. 
 So that if there is water available it will be publicly known; if 
 there is water wasted and used unskillfully, it will be publicly 
 known in a way to rebuke the users; if there is water used with 
 economy and skill worthy of special note, it will be publicly 
 known in a way to reflect credit upon those who thus utilize it. 
 
 ^ ' Hee, Jlinistoriiil circular, July 4, 1878, Les Amiales des Fonts ct Chaussies, Vol. 
 
GOJ'ERXMEA^TAL POLICY. 165 
 
 There can be no question but that this is the real way to regu- 
 late the use of waters. Public knowledge of what is good in prac- 
 tice will bring imitation and economy as an average outcome; 
 public knowledge of what is reprehensible and wasteful will bring 
 condemnation, and a reform of the wrong. These are, in sub- 
 stance, the sentiments to be found in late French state papers 
 relating to irrigation, and with the expression of them, I leave the 
 subject of the progress of French governmental policy towards 
 the irrigation interest, for they are the e%'idence of the crowning 
 feature of a long line of intelligent actions of a government fully 
 awake to the best interests of its people. 
 
 SECTION II. 
 
 Notable Ixstaxoes of E.nterprise and Encouragejiext. 
 
 In this section I present a series of abstracts of the laws author- 
 izing, and the decrees and agreements regulating the construction 
 and maintenance of the most notable canals of irrigation in France. 
 It will be seen that they are scattered in date over the period of 
 the past tifty years, and in character range the whole field indi- 
 cated in the preceding section. The study of these measures, 
 together with that connected with the canal of the Bourne, of 
 which a closer analysis has already been given, will lead to an 
 appreciation of the fact that irrigation is a subject for careful and 
 thoughtful treatment at the hands of the legislator. 
 
 Canal Des Alpines} 
 
 In the year 18oii the concession for the northern branch of the 
 Alpines canal and its secondary ditches was offered for sale. The 
 concession was perpetual, and allowed five cubic metres of water 
 per second to be derived from the river Durance, in time of ordi- 
 nary low-water, in addition to the right formerly authorized on 
 the portion of the said branch alreadj^ opened. The concessionary 
 was authorized to receive as Ms profit a rent from the irrigators 
 which should not exceed a litre and a half of corn of the country of 
 best quality for each are of land irrigated, regardless of its iiature. 
 
 The buyer could expropriate lands for the construction of the 
 
 ' See, Royal ordinance of July 9, 1839, Lfs Annale^ des Fonts et Chausstes, Vol- 
 XVII, p. 289, «< seg. 
 
166 FRENCH IRRIGA TION LEGISLA TION. 
 
 canal and its branches, in accordance with the law; and the own- 
 ers of lands to be irrigated by the waters of the canal were freed 
 from any increase of landed taxes over that then paid on them, 
 for twenty-five years from the time fixed for the completion of the 
 canal. 
 
 General plans had to be presented within one year from time of 
 sale ; the works to be commenced within six months from the gov- 
 ernmental approbation of the project, and to be executed within 
 six years from the final consummation of the sale. Forfeiture to 
 be incurred for failure to comply with either or both of the two 
 last mentioned conditions. 
 
 The landed tax -was established on the canal for only the actual 
 ground occupied by it, rated as lands of the first quality. Any 
 portion-of the water conceded which within twelve years should 
 not have been employed in irrigation, was to revett to the state, 
 which could rnake it the object of a new concession. 
 
 The buyers were obliged to deposit, after the sale, in the treas- 
 ury, the sum of 50,000 francs (•1ilO,000) . This sum to be increased 
 to 100,000 francs in the three months which follow the approval of 
 the sale. The said sum to be returned in fourths, in proportion to 
 the amounts of work executed, and in case of forfeiture, the por- 
 tions of the security not returned, to be confiscated by the treasury. 
 The enterprise was sold on the twentieth of June, 1839, to three 
 individuals, as agents for the " General Drainage Company," with 
 an abatement of two thirds per cent; that is, the annual rent was 
 to be one litre forty-nine centilitres of corn for each are (equiva- 
 lent to 64 quarts per acre) of land irrigated. 
 
 Cnnal of Carpentras} 
 
 The administration was authorized by a special law to concede 
 six cubic metres (212 cub. feet) of water per second to be taken 
 from the river Durance and used in the irrigation of lands belong- 
 ing to the communities of Saumannes, I'lsle, and others. The water 
 could, however, be cut off from the canal by order of the prefect 
 whenever such measure was deemed necessary either for the inter- 
 est of navigation or for the protection of the interests of those who 
 had previous claims to the water. The enterprise was "declared 
 of public utility and the canal only taxed for the actual ground 
 occupied by it, classified as of first quality. The lands to be irri- 
 
 ' See, Royal order o£ July 9, 1852, Les Aniiales des Fonts et Chaitssies, Vol. 
 XLVIII, p. 523, cl seq. 
 
ROTABLE IRRIGATION ENTERPRISES. 167 
 
 gated from the canal were not to have their taxes raised over the 
 assessment at that time, for twenty-five years from the date of the 
 completion of the canal. 
 
 Oanal of Cadenet} 
 
 This concession was made to a number of irrigating proprietors 
 forming a syndical association, and consisted in permission to 
 derive three cubic metres of water from the river Di:irance, and 
 authority to contract loans to be first approved of by government 
 or by the prefect, provided the debt of the syndicate did not ex- 
 ceed 50,000 francs ($10,000) at the time the loan was asked for. 
 This syndical association was called the Society of the Canal of 
 Cadenet, and was formed with the object of irrigating certain 
 lands belonging to the subscribers thereto, but as there were many 
 persons and communities whose lands could be irrigated by the 
 canal, but who did not subscribe, this decree provided that these 
 parties could join the society either during or after its construc- 
 tion on the same terms as the original founders. 
 
 The affairs of the society were administered by a syndicate com- 
 posed of seven members to be named by the prefect. One of the 
 members was also named by the prefect to fill the place of director 
 of this syndicate, and attend to the business connected with the 
 construction, maintenance, and operation of the canal. The en- 
 terprise was declared of public utility, but did not receive any 
 assistance from the government, either in the shape of subsidy or 
 remission of taxes. On the contrary, it seems to have been bur- 
 dened with conditions, of which the following are the most impor- 
 tant: 
 
 1. Pour tenths of a cubic metre of water, per second, had to be 
 returned into the Durance by the escape canal of Pertuis. 
 
 2. The waters of the canal not utilized for irrigation had to be 
 returned into the Durance at a specified point thereon. 
 
 3. It had to carry out all its works in conformity with the direc- 
 tion of engineers appointed by government, but paid by the society 
 
 itself. 
 
 Canal of St. Martery. 
 
 The canal of St. Martery, under a law, agreement, and sched- 
 ule, passed and ratified in 1866, was conceded to three individuals, 
 
 ' See, Roval decree of November 18, 1854, Les Annales des Fonts et Chaussies, 
 Vol. LVI, p. 179. 
 
 ^ See, Les Annales des Fonts et Chaussees, Vol. LXXXVIII, p. 162, ei seq.; Law 
 of May 16, 1866. 
 
168 FRENCH IRRIGA TION LEGISLA TION. 
 
 representing a company of English capitalists, called the General 
 Irrigation and Water-Supply Company of France, for a period of 
 fifty years, and thereafter to belong in perpetuity to the depart- 
 ment of the Upper Garonne, wherein it is situated. The canal and 
 all its secondary and distributing works were to be built by the 
 company, at its sole expense and risk, and managed and main- 
 tained by it during the term of the concession, and thereafter by 
 the department. 
 
 The general government granted a subsidy of 3,000,000 francs 
 to the work, to be paid in tenth parts, in proportion to the ad- 
 vancement of the principal canal, but depending on the resources 
 available to the administration from time to time for. such pur- 
 poses. The payments were to be made on the certificates of the 
 engineers, to the effect that a greater sum had been expended on 
 the works, etc., since the last payment than the amount of the 
 installment demanded. A reserve of 500,000 francs was to be 
 made from the two last installments, of which 300,000 francs 
 were to be paid over upon the final approval of the main canal, 
 and 200,000 after the final approval of the secondary canals, 
 which final approvals were to be one year after the claim of com- 
 pletion and the provisional reception of the works. 
 
 Complete final plans for the main work were to be submitted 
 to the administration for approval, and the works to be com- 
 menced, under pain of forfeiture of rights and guarantees, within 
 one year of the date of the concession; the main canal to be 
 finished within five years, and the secondary canals within two 
 years after approval of locations; and the company was required 
 to deposit the sum of 150,000 francs as security for the faithful 
 performance of its engagement. 
 
 To assist the company's credit for the securing of capital neces- 
 sary for the construction of the works and the other purposes of 
 the enterprise, the department of the Upper Garonne was author- 
 ized to and did engage to contract, upon the demand of the com- 
 pany and for its benefit, with the Credit Poncier of France, under 
 a law authorizing such negotiations, one or more loans to the 
 maximum amount of 4,000,000 francs. These loans were to be 
 contracted upon the basis of the company's assured income from 
 subscribed water rents, after the works were completed to deliver 
 the water, and the collecting and management of the income was 
 to be assigned to the department for that purpose, provision being 
 made for maintenance and operation of works, tlae company at 
 
NOTABLE IRRIGATION ENTERPRISES. 169 
 
 the same time pledging its faith and credit in the protection of 
 the department from loss or embarrassment on account of the 
 loans. The estimated irrigable area was 14,000 hectares — about 
 34,600 acres. 
 
 Subscriptions for the use of water were required to be made for 
 fifty-year periods; the right of irrigation belonging to the land 
 subscribed for, and going with it, no matter into whose hands 
 it passes, not being transferable to other lands by the owner, and 
 not forfeitable by the original lands after the expiration of the 
 fifty years except by the owner's consent. The quantity of water 
 to be furnished for irrigation was fixed at three fourths of a litre 
 per second per hectare (equivalent to a duty of 93.25 acres per 
 cubic foot per second) ; and provision was made for a rebate on 
 the rents in case of an insufficiency of supply for any term of 
 more than thirty days duration during the six months of the 
 irrigation season. 
 
 The price of water for irrigation was fixed at 25 francs per hec- 
 tare ($1 95 per acre) per year, for all subscriptions made during 
 the first two months of the examination of the project, at 35 
 francs ($2 73 per acre) for subscriptions made after that time and 
 before the promulgation of the schedule, and 50 francs ($3 91 per 
 acre) for all subscriptions made thereafter. It was stipulated that 
 sale by the quantity of water might be substituted for sale by the 
 surface of land irrigated, and the substitution was to be made of 
 the prices named above, for the /laZ/ litre of water per second, with 
 the provisions that water thus taken should be used only on con- 
 tiguous tracts, that all of the lands should be pledged for the pay- 
 ment of the water rent, and that no subscription would be received 
 for less than a half litre per second. 
 
 The company was also bound to lend to each and every land 
 owner who subscribed for water, a sum equal to one hundred francs 
 per hectare ($7 69 per acre^ subscribed for, to be used by him in 
 the preparation of his land for irrigation. This sum to be ad- 
 vanced in two parts, the first half on demand, and the second half 
 three months after the first irrigation on lands prepared with the 
 first half, and where it shall have been shown that the advance 
 has been judiciously expended. The sums thus advanced were 
 to be repaid in installments which, with interest, amounted to 
 6.25 per cent per annum for the fifty years, on the amount bor- 
 rowed. 
 
1 7U FRENCH I R RIG A TION LEGISLA TION. 
 
 Canal of Siagne} 
 
 A similar concession was made in 1866, also to the English 
 company, for the canal of the Siagne and Loup, in the department 
 of the Maritime Alps, under very similar conditions and for a like 
 period to that governing the case of the Saint Martery. In this 
 instance the town of Cannes was to be supplied with water for 
 domestic purposes, as well as the surrounding country to be irri- 
 gated, and it was made the co-grantee, to own the works in per- 
 petuity, after the first fifty years when owned by the company. 
 
 The general government granted a concession of 500,000 francs 
 ($100,000), and the town was to loan its credit to raise money for 
 use on the works by the company, as in the case of the St. Mar- 
 tery, taking control of the revenue of the company from water 
 rents, as a basis upon which to capitalize for a loan, and being in 
 turn assured from loss or embarrassment by the obligations of the 
 company. 
 
 Canal of Siagnole!' 
 
 This concession was made to five individuals forming a society, 
 for fifty years, and afterwards in perpetuity to the department of 
 Var. The society received a subvention of 30,000 francs ($6,000), 
 and was authorized to derive from the Siagnole three hundred 
 litres (10.6 cub. feet) of water per second, provided they at all 
 times left at least a volume of water in the bed of the river such 
 that the discharge might be one hundred litres per second above 
 the dam of the manufactories of Mons. 
 
 The department was authorized to contract a loan, the interest 
 of which, with all expenses connected with it, should not exceed 
 three fourths of the amount of the rents of the canal, in order to aid 
 the society in the construction of the canal. The total amount of 
 this loan was not to exceed 90,000 francs ($18,000). The depart- 
 ment was to receive the rents from the irrigators, and, after paying 
 the interest and other expenses and installments of the principal, 
 to hand the balance over to the society each year, until the debt 
 should be paid off, when all the rents were to be paid to the society. 
 
 The works of the canal were declared to be of public utility; and 
 the tax was to be only for the simple amount of land occupied 
 
 'oS?*^' ^"'^^ °f -'^"S- -'"', lS6fi, Les Annales des Fonts et Chaiissies, Vol. LXXXVIII 
 ]i. 385, et seq. 
 
 ',^)S?' ^'^'^^^^ of J""e ". 1870, Les AnnaUs des Fonts et Chaussies, Vol. CIII, 
 
NOTABLE IRRIGATION ENTERPRISES. 171 
 
 by the main canal and the secondary ditches, but the buildings 
 and warehouses of the society were subjected to the usual tax. 
 The principal canal and secondary canals had to be entirely fin- 
 ished, and put in operation in the space of two years, counting 
 from the decree of concession. The tertiary ditches, however, had 
 only to be undertaken when the svibscriptions would amount to 
 six per cent of the expenses of their construction; but once begun, 
 they had to be finished in two years. Forfeiture was to be in- 
 curred for failure to construct in the stipulated time. 
 
 The society was authorized to collect rents at the rate of forty 
 francs per litre ($218 66 per cub. foot) per second for periodical 
 waters of irrigation. The privilege of subscribing for less than a 
 litre was given to the irrigators, but with the proviso, that for every 
 quarter of a litre, or less than that quantity, there should be paid 
 a rent of fifteen francs ($3). 
 
 The rents were to be fifty francs per litre ($27o 29 per cub. foot) 
 per second, if they were not subscribed for until after the decree 
 of the concession, and the proprietors could free themselves from 
 all rent charges by paying the capital, fixed at eight hundred 
 francs per litre ($4,374 35 per cub. foot), provided they declared 
 their intention so to do in the year following the decree of con- 
 cession. Every time, however, the subscriber freed himself by 
 depositing a capital, the society was obliged to deposit in the 
 landed bank of France a sum necessary to constitute, by the accu- 
 mulation of interest compounded for fifty years, the rent to be paid 
 during the forty-nine years following. The irrigating proprietors 
 were obliged to give free right of way under pain of not having the 
 right to irrigate. Every proprietor who subscribed for a volume 
 of water of twenty litres per second could have that quantity in a 
 continuous stream by payment of the corresponding rent — this 
 water to be delivered to him separately by a single gate. This 
 same rule held good for a number of individuals, clubbing together 
 to receive their water jointly through a separate gate. 
 
 The company had to deposit 3,000 francs ($600) as security 
 before the decree of concession was made, and this sum was to be 
 restored to them when the expenditure on the canal amounted to 
 20,000 francs ($4,000), as certified to by the engineer-in-chief and 
 the prefect of the department of Var. In case of reduction or 
 remittance of the rents from ■ insufficiency of water, the year in 
 which such reduction or remittance took place was not to count as 
 one of the fifty years granted by the concession. 
 
172 FRENCH IRRIGA TION LE GISLA TION. 
 
 In this case we have an instance of a direct subvention to a 
 society to assist in the construction of a canal, additional assist- 
 ance in the shape of a loan authorized to be raised by one of the 
 departments, and the transfer of the property, after fifty years, for 
 the sole benefit of a department; also remission of taxes on the 
 enterprise, except for buildings and land actually occupied. 
 
 Canal of the Bourne} 
 
 The rights, privileges, and benefits for the canal of the Bourne, 
 department of DrSme, hereinbefore spoken of, were conceded in 
 1874, for a period of ninety-nine years, to three individuals for the 
 benefit of a society or company, to be formed to carry out the pro- 
 ject. The district comprised 22,000 hectares (54,340 acres) of 
 which 10,500 hectares (25,935 acres) were reckoned as irrigable, 
 and a volume of 7 cubic metres (247 cubic feet) of water per sec- 
 ond was allowed for the purpose of irrigation and other uses con- 
 templated. 
 
 According to the terms of the law and agreement and schedule 
 annexed, the government allowed the company an advance or 
 subsidy of 2,900,000 francs ($580,000), which amount was one 
 third of the estimated cost of the works inclusive of main, second- 
 ary, and tertiary canals and structures. This subsidy was not 
 finally granted, however, until after the company or society had 
 been formed and subscriptions for water been secured to the extent 
 of 3,000 litres per second at the rate of fifty francs per litre. And 
 the subsidy or advance was to be paid in installments on comple- 
 tion of work in cost and value to the amount of three times the 
 sum paid in each instance, one tenth of the whole being held back 
 till the final completion of the work. 
 
 The company was to build all the works, and transfer them to 
 the state at the expiration of the term of the concession, in good 
 order. The secondary canals and their tertiary branches may 
 each go into the hands of a syndicate association of irrigators, for 
 operation, in the sub-district served by it, should the landholders 
 choose thus to organize and undertake the management. 
 
 The rate of water rents, for irrigation, was fixed at 50 francs 
 per litre of flow for those persons who subscribed before the open- 
 ing of the works, and 60 francs per litre for those who subscribed 
 
 1 See, Law of May 21, 1874, Les Jmialcs des Fonts et ChamsSes, Vol. CXXVI, p. 
 451, et seq.; also, De Tassy, Appendices 5 and 6. 
 
NOTABLE IRRIGATION ENTERPRISES. 173 
 
 afterwards. Supposing the entire volume of water conceded to be 
 sold at the minimum figure, the 'revenue of the company would 
 be' (7 cubic metres=7,000 litres@50 francs) 350,000 francs per 
 annum, which in fifty years would yield a return of 17,500,000 
 francs, on the outlay to the company, which was expected to 
 amount to 5,800,000 francs— being two thirds of the total esti- 
 mated cost of the works, the government advancing the other 
 third. 
 
 Canal of the RMne} 
 
 This concession was made to three individuals acting for and 
 in the name of a society then forming. The volume of water to be 
 derived from the Rhone was 2,500 litres (88.3 cub. feet) per sec- 
 ond in low-water. The concession to last for ninety-nine years, 
 and the society to receive from the government a subvention of 
 900,000 francs ($180,000), provided the company could show sub- 
 scriptions for at least 1,500 hectares (3,707 acres) of land to be 
 irrigated. The first installment was not to be paid. until the soci- 
 ety had expended 800,000 francs ($160,000). The thyee first 
 fourths of the subvention to be devoted to the principal canal, the 
 balance to be paid to the society on the provisional reception of 
 the canal by government, with the exception of one tenth, which 
 was to be paid after its final reception. The society was author- 
 ized to contract one or more loans, the interest and expenses in 
 connection with which were not to exceed 15,000 francs ($3,000). 
 The first loan not to exceed 800,000 francs ($160,000), and no 
 loan or issue of bonds to be made except with the authorization 
 of the minister of public works, and after the entire subscription 
 of the capital shares, and the employment in the works of four 
 fifths of this capital. 
 
 The society engaged to execute at its expense all the works of 
 the principal canal, secondary, and tertiary branches, as well as 
 the works necessary to deliver to and carry away from the prop- 
 erty of every one desiring it, the water for irrigation and, domestic 
 uses; to finish the main canal and put it in operation within the 
 space of five years from the date of concession, and to complete 
 all necessary canals within one year of the time in which they 
 were commenced. All the expenses of operation and maintenance 
 were to be paid by the society, and it was to receive all incomes 
 
 ' See, Decree of August 7, 1878, Les Annates des Fonts et Chaussies, Vol. 
 CXLIII, p. 531. 
 
174 FRENCH J R RIG A TION LEGISLA TION. 
 
 from the canal during the term of the concession, at the expiration 
 of which the canal was to be returned to the state. The annual 
 rent was fixed at 40 francs per hectare ($3 12 per acre) for those 
 who subscribed before the decree of concession, and 60 francs per 
 hectare ($4 69 per acre) for those subscribing afterwards. The 
 first subscribers had the privilege of afterwards augmenting their 
 original subscriptions by an equal amount at the rate of 40 francs 
 per hectare, but anything in excess of this amount had to be paid 
 for at 60 francs per hectare ; the right to the use of the water being 
 in all cases inherent to the land and not to the individual. 
 
 The society had to give a security of 60,000 francs ($12,000) in 
 cash, to be returned to them when they had expended on the 
 works 200,000 francs ($40,000). The works were declared to be 
 of public utility, and entitled to the exercise of the power of emi- 
 nent domain. The society agreed to pay to the state an annual 
 rent of one franc, and the state reserved the privilegeof revising 
 this once every ten years. 
 
 In this concession we have an instance of direct assistance in 
 the shape of a subsidy; the concession to last ninety-nine years, 
 at the end of which time the works to be handed over to the state. 
 The company was also authorized to contract one or more loans 
 for its use in the construction of the works. 
 
 Canal of Vesuhie} 
 
 This concession was given to the General Water Company of 
 France, under the direction of the engineer-in-chief of bridges 
 and roads (the construction and management of these irrigation 
 works being thus measurably a public work of the state), for a 
 period of ninety-four years, and afterwards in perpetuity to the 
 town of Nice. The enterprise was declared to be of public utility, 
 and the General Water Company received a subvention from the 
 state of 2,400,000 francs ($480,000). 
 
 The canal was to be taken from the river Vesubie, and so con- 
 structed as to carry at least four cubic metres (141.2 cub. feet) of 
 water per second at the head of the first secondary canal, this dis- 
 charge being fixed for the execution of the work, but not as a 
 determinate quantity of water which had to be diverted by the 
 company. 
 
 ' ^?9v I^'iw of UeL'eiuber 2o, 1878, Les Annales des Fonts et ChaussSes, Vol. 
 XIjIV, p. 1397. 
 
 CXIAV,] 
 
NOTABLE IRRIGA TION ENTERPRISES. 1 75 
 
 The company had to pay all expenses of construction as well as 
 all indemnities for temporary occupation or deterioration of lands 
 and all damages resulting from the works. All the expenses in 
 connection with acquiring lands for the location of headworks of 
 the canal and its dependencies, for modification, destruction, or 
 stoppage of manufactories, for disturbances of users of water, had 
 to be supported one half by the company and one half by the 
 town of Nice, the company paying the town, however, 100,000 
 francs towards these expenses. The indemnities due for the 
 establishment of the tertiary canals and the distribution ditches 
 for water, or for obtaining the passage of these waters over inter- 
 mediate lands by right of simple ser^dtude, had to be paid by 
 the proprietors interested, who had to give proper titles for the 
 same to the company. 
 
 The community of Nice granted to the company the lands 
 which were required for the establishment of the reservoirs and 
 their dependencies necessary for supplying the town with water, 
 and the gratuitous disposition of all the ways of communication 
 belonging to the community for the establishment of canals, 
 ditches, conduits, etc., so long as such use did not interfere with 
 their usefulness as means of commitnication. It also agreed to 
 pay to the company an annual rent of 80,000 francs ($16,000), 
 representing the municipal subscription for a weekly delivery of 
 60,000 cubic metres of water. It was, however, understood that 
 when the gross income of the company should amount to 180,000 
 francs ($36,000), municipal subscriptions included, any excess of 
 income over this figure was to go towards the reduction of the 
 annuity of the town, so as to limit it to 60,000 francs. 
 
 The company received authority to collect rents from the users of 
 water, not in the town, as follows: For fifty centilitres, per second, 
 46 francs ($513 96 per cub. foot) per season of irrigation, for one 
 litre, per second, 80 francs ($434 56 per cub. foot). There were 
 no subscriptions received for periodical water for a less amount 
 than half a litre per second. The buildings and storehouses of the 
 canal and its dependencies had to pay the usual taxes, but the 
 enterprise was only taxed for the actual amount of land occupied 
 by it, reckoned as land of the first quality. 
 
 We have in this case an instance of the construction and man- 
 agement of a canal largely at the expense of the state, for ninety- 
 four years, and then the transfer of it for the sole benefit of a 
 
1 76 FRENCH IRRIGA TION LEGISLA TION. 
 
 municipality in perpetuity. We have here also, a remission of all 
 taxes on the enterprise, except for its buildings and the land act- 
 ually occupied by it. 
 
 The Pierre-Lattf CanaU 
 
 A recent instance of an enterprise of considerable magnitude to 
 which the state made a large advance, and also guaranteed inter- 
 est in a large amount, is the case of the extension and enlarge- 
 ment of the Pierre-latte canal, in the department of Vaucluse, the 
 law for which was passed in 1880, making the concession to cer- 
 tain individuals for the benefit of a society to be formed to carry 
 out the work. The concession was for eight cubic metres (282.4 
 cubic feet) of water per second from the Rhone, to irrigate about 
 20,000 hectares (49,400 acres) of land, and for a term of ninety- 
 nine years. 
 
 The estimated cost of the work, including main, secondary, and 
 tertiary canals and works, was 8,000,000 francs, of which the state 
 was to advance 2,000,000 on the work, in installments in amounts 
 not exceeding one third the actual expenditure at any time accord- 
 ing to detailed engineering reports. In addition to this, the state 
 guaranteed to the concessionary society undertaking to construct 
 and manage the works, for' a period of fifty years, a revenue of 
 4.65 per cent per annum on the remaining 6,000,000 of funds esti- 
 mated to complete the work, and which the society was to raise for 
 its capital. 
 
 This advance and guarantee, however, were not made until a 
 certain revenue had been assured by subscriptions for water by 
 the land-holding irrigators, so that the extent of government lia- 
 bility for interest was limited to 167,000 francs per annum. And 
 in case the income from the canal grows to be more than enough 
 to produce the rate guaranteed by the state over and above the 
 cost of operation, etc., one half this net revenue is to go to the state. 
 
 After the fifty years of the guarantee of interest, the state is to 
 receive during the balance of the period of concession an interest 
 of four per cent in return on the sum of the net amounts advanced 
 by it as interest. At the end of the ninety-nine years of the con- 
 cession, the canal and all its dependencies are to become the 
 property of the state. The provisions with respect to the manage- 
 ment and maintenance of the secondary and branch canals by a 
 
 See, Law of August 2, 1880, Les Annates des Fonts et Chauss6es, Vo\ CLI p. 
 St sen. 
 
 21, et seq 
 
NOTABLE IRRIGATION ENTERPRISES. 177 
 
 syndicate of irvigators in each case, were the same for this canal 
 as for the canal of the Bourne. 
 
 The Canals Manosqur and HerauJt. 
 
 A late instance of the state loaning money for the construction 
 of irrigation works is the case of the Manosque canal, in the de- 
 partment of the Lower Alps, sanctioned by law in 1881.^ 
 
 The canal was to take two cubic metres of water per second 
 from the Durance river for irrigation. The proprietors of lands to 
 be irrigated were to engage to take water to a certain amount at 
 a fixed rate, and, for fifty years, and to form themselves into a 
 syndical association to manage the canal; the state, thereupon, 
 to advance all the money for the enterprise, amounting to two 
 million francs, and to receive in return, during the period of fiftj^ 
 years, seventy per cent of the gross proceeds from water rents, 
 which it was estimated would repay the state with interest. 
 
 The following is another instance of both a subsidy and a guar- 
 antee of interest on capital invested, brought into form by a law 
 of 1882; 
 
 Canal of the Herault, department of the Herault, to take 3,500 
 litres of water at low-water, and 5,000 at time of flood, from the 
 Herault river, for the irrigation and submersion of lands; to be 
 built by a syndicate of land-holding irrigators, at an estimated 
 cost of 6,300,000 francs. The state was to give a subsidy equal to 
 one third of the total cost of the works, and to guarantee interest 
 for fifty years at the rate of 4.65 per cent on 4,200,000 francs, the 
 balance of money to be raised. This guarantee could only take 
 effect after subscriptions had been niade for water for 2,000 hec- 
 tares of lands, at rates about fifty francs per litre.^ 
 
 Other Late Works. 
 
 In other instances the state has constructed irrigation works, 
 and either turned them over to the landholders to manage, or 
 reserved them for management as public works of the state. 
 
 An instance of the first above mentioned class of action, for 
 which the law was passed in 1881, is that of the Ventavon canal, 
 in the departments of the Upper and the Lower Alps, and taking 
 
 ' See, Law of July 7, 1881, Les Annales des Ponti et Chaussees, Vol. CLII, p. 1132. 
 - See, Law of July 13, 1882, Les Antmles des Fonts et Chaussies, Vol. CLVIII, 
 p. 1298. 
 
 12' 
 
178 FRENCH IRRIGATION LEGISIATION. 
 
 water from the Durance river. The state granted the associated 
 irrigators a water-right of 2,500 litres of water per second, on a 
 nominal payment of one franc per annum, and then undertook to 
 construct the main canal necessary to deliver the water, at a cost 
 not to exceed 1,733,000 francs, estimated to be two thirds the total 
 cost of the whole works, and to turn it over to the associated irri- 
 gators, for use forever, when they had built the necessary second- 
 ary canals and smaller ditches for distributing the water/ 
 
 Another instance of this kind of action on the part of the gov- 
 ernment is that of the canal of Petite-Vence, department of Isere, 
 taking water from the government canal Roize, and built for the 
 irrigation and submerging of lands, at an estimated cost of 81,000 
 francs, of which the government was to expend two thirds on the 
 main works, and the associated irrigators one third on the secon- 
 dary canals and other works, the association to manage the canal 
 forever.^ 
 
 Of irrigation canals, constructed on government account as pub- 
 lic works, the following are of late dates: 
 
 Canal of Malpas, department of Herault, taking water from the 
 navigation canal of Midi, for the submersion of two hundred and 
 ninety-six hectares, to be built by the state, at an estmiated cost 
 of 86,000 francs.' 
 
 Canal of Saint Marcel, department of Aude, taking water from 
 the canal of Midi, for the submersion of three hundred and eighty- 
 five hectares, to be executed by the state, at an estimated cost of 
 130,000 francs. 
 
 Canal of Argeliers. department of Aude, taking water from the 
 canal of Midi, for the siibmersion of one hundred and five hec- 
 tares of land, to be executed by the state, at an estimated expense 
 of 80,000 francs.' 
 
 Canal of Raonnel, department of Aude, taking water from the 
 canal of the Rohine, and intended for the submersion of five hun- 
 dred and three hectares of land, executed by the state, at an 
 estimated cost of 320,000 francs.'^ 
 
 ' See, Law of .luly 20, 1881, Les Aiiiialcs des Fonts et Chmmics, Vol. CLVII.p. (i. 
 
 ''■ See, Law of August 3, 18S1, Lex Aiinnlex dcx Fonts et Clwussees, Vol. CLVII, 
 p. .Wl. 
 
 ' See, Law of March 3, 1881, Les Annates des Fonts et Ohanssfes, Vol. CLII, p. 1263. 
 
 * See, Law of September 22, 1880, Les Annates des Fonts et Chauss6es, Vol. CLI, 
 p. 483. 
 
 5 See, Liiw of Augu.st 17. 18S1, Les /I»Hote des Fonts el Chaussies, Vol. CLVII, 
 p. 573. 
 
NOTABLE IRRIGATION ENTERPRISES. 179 
 
 AUTHORITIES FOR CHAPTER VIII. 
 
 Vumont. — [Work cited as an authoritv for ("liapter II.] See, Budk II, t'haptei' 
 VI. pp. 280-330. 
 
 De Possw.— [Work cited as an authoritv for Chapter II. | See, Chapter I, jip. 
 ■ 79-130. 
 
 Bmral. — [Works cited as authorities for Chapter VII.] See, Chapters I and II 
 of each volume, the descriptions of the several canals in other chap- 
 ters, and the chapters relating to syndicate associations, canal com- 
 panies, land proprietorship, and population. 
 
 Les Annates des Fonts et Chniissees. — [Works cited as an authority for Chapter 
 III.] See, Vol. XVII, p. 2,S9, ei .w/.; Vol. XL VIII, p. 523, et sen.; Vol. 
 LXXXVIII, p. 162, et seq.; Vol. LXXXVIII, p. 385, etseq.; Vol. CIII. 
 p. 1208, et seq.; Vol. CXXVI, p. 451, et seq.; Vol. CXLIII, p. 531, et seq.; 
 Vol. CXLIV, p. 1397, et seq.; Vol. CLI, p. 21, et seq.; Vol. CLVIII, p. 
 1298, et seq.; Vol. CLVII, p. 5, et seq.; Vol. CLII, p. 12S3, e( seq.; Vol. 
 CL, 15. 48, et seq.; Vol. CLVII, p. 573, et seq.; and elsewhere in the pub- 
 lication. 
 
lEEIGATION LEGISLATION AND ADMINISTRATION. 
 
 ITALY. 
 
ITALIAN lEEIGATION LEGISLATION. 
 
 CONTENTS. 
 
 Oliapter IX, — Eight of Property in and Control of Water-Courses and 
 Water Sources. 
 
 Chapter X. — Water Privileges and Canal Works, and the Administration 
 of Waters and Works. 
 
 Chapter XI, — Eegulation of Irrigation Practice. 
 
 Chapter XII.— Eegulation of Drainage and Works connected with Irriga- 
 tion Practice, 
 
 Chapter XIII.— The Eight of Way to Conduct Waters. 
 
 Chapter XIV.— Irrigation Organization and Eegulation. 
 
 Chapter XV.— Irrigation Enterprise. 
 
Italian Irrigation Legislation. 
 
 INTRODUCTION. 
 
 The valley of the Po, in northern Italy, is very generally re- 
 garded, and popularly spoken of, as the classic land of irrigation; 
 and, indeed, if there is a region worthy of the name, these plains 
 of Piedmont, liOmbardy, and \'enetia are deserving of it, for 
 there are found the largest number of the best works of olden 
 and of modern times, in the department of hydraulic construc- 
 tion for irrigation, which exist in any land, and there irrigation 
 itself was first, after the dark ages, studied as a science and prac- 
 ticed as an art. 
 
 The valley is about two hundred miles in length, and varies 
 from thirty to sixty in width, being bounded on the north by the 
 Alps, and on the south by the Apennine range of mountains. 
 Throughout its length, and keeping nearest the foot of the southern 
 range, runs the Po, from west to east, a large river; while enter- 
 ing it, and joining this main drainage way, from the bordering 
 mountain regions, are thirty or more other streams, of varied 
 sizes and character; of which at least half a dozen are grea,t 
 irrigation feeders; and twice as many more contribute notably 
 to the water-supply used in agriculture. 
 
 This valley of the Po is like our own of the Sacramento in size, 
 and form, and disposition of water-ways, but is much better sup- 
 plied with streams, draining its adjoining mountains, and itself 
 receives, on the average, about seventy-five to one hundred per 
 cent more rainfall. 
 
 Irrigation in this region was probably commenced by the 
 Romans, but the greater works of the country date since the 
 tenth century; most of them were built after the fourteenth and 
 
184 ITALIAN IRRIGA TION LEGISLA TION. 
 
 before the beginning of the present century; while several notable 
 ones, and the one of chief importance, have been constructed 
 during the present generation. These works are constructed in 
 the most substantial manner, with stone reveted banks in many 
 places, and with masonry headworks, bridges, outlets, sluiceways, 
 overfalls, syphons, and other structures. The volumes of water 
 handled far exceed any conducted and distributed in this coun- 
 try, and the practice of irrigation is very much more refined in 
 its details than is our practice, except in some notable instances 
 with us. 
 
 The customs of the people of this region have crystallized into 
 laws and regulations covering the whole range of points and 
 subjects met with in the development of irrigation works and 
 practice, so that we have here a rich mine of data in which we 
 may find principles, and trace the working and results of princi- 
 ples, applicable to, and to be heeded in the formulation of the 
 irrigation code of the future for California. 
 
 This development came to a point of completeness worthy of 
 special attention, in the states of Lombardy and Piedmont, par- 
 ticularly, before the recent unification of the government of all 
 Italy. So that I shall first trace as fully as necessary the systems 
 of the Lombards and Piedmontese, and then present the law of 
 all Italy, as it now exists, on the important points of our inquiry. 
 
OHAPTEE IX.-ITALY<"| 
 
 EIGHT or PEOPEETT IS AND OONTEOL OP WATEE-OOUESIS 
 AND WATEE SOUEOES. 
 
 Section I.— Ownership and Cotitrol of Wat^r-Conrses and Waters. 
 
 Basis o£ propertj' rights in water-courses in Northern Italy. 
 Ownership: Lombardy; Piedmont. All Italy. 
 Control: Lombardy ; Piedmont. All Italy. 
 
 Section II. — Otinership and Control of Springs. 
 Right of Property in Springs. 
 Acquired rights to the use of Spring Waters. 
 Eegulation of the opening and use of Springs. 
 
 Section III. — The Riparian Eight. 
 
 In Piedmont, under the Sardinian Code. 
 In all Italy, under the Italian Code. 
 General remarks. 
 
 SECTION I. 
 
 Ownership and Control of "Water-Courses and Waters. 
 
 Basis of Property Rights in Water-Courses.^ 
 
 For five centuries after the fall of the Roman empire of the west, 
 the people of the Italian peninsula were tormented by successive 
 invasions of barbaric tribes from different quarters. It becoming 
 apparent that the ruling families of sovereigns of the various 
 kingdoms, could not protect their subjects from pillage, the people 
 concluded to protect themselves, and hence grew the spirit of 
 independence upon which was formed the Italian republics of the 
 middle ages. 
 
 Thus, during the tenth century the residents of the principal 
 ■cities with the surrounding country, each organized an indepen- 
 dent state with a representative form of government, and elected 
 administrative officers. Forming leagues or confederacies at later 
 
 ' See, Sismondi, Smith, and De Buffon. 
 
186 ITALIAN IRRIGA TION LEGISLA TION. 
 
 dates, these states became republics, several of which, particularly 
 on the seacoast and in the south of Italy, retained their indepen- 
 dent existence with some vicissitudes of fortune, as late as the 
 present century; but those in the north of Italy — the upper part 
 of the valley of the Po, the quarter where irrigation has developed 
 to the greatest extent — soon gave way to pressure of invasion from 
 without, and to the machinations of local magnates, and the feudal 
 system here made rapid progress to full development. 
 
 Ui&e and Fall nf the Feudal System. 
 
 In northern Italy the independence of the feudal lords was most 
 complete, and the hereditary principle was recognized not only as 
 relating to the possession of local governing power, but to the pos- 
 session and ownership of land. The counts took every means to 
 oppress the allodial land proprietors who held titles from former 
 rulers or under preceding forms of law. From such persistent and 
 covert persecution, even the authority of the kings was often power- 
 less to afford protection. Many private individuals voluntarily 
 surrendered their allodial titles and consented to hold their prop- 
 erty as the vassals of the counts, in order to get protection from 
 the local potentate. Thus it came to pass that the feudal system 
 of land tenure was established — none but persons of noble birth 
 could hold property in their own right; all others held it as vas- 
 sals of the dukes, counts, marquises, margraves, etc., and the land 
 was known as the feif of the ruler. 
 
 The waters of all streams, which under senatorial and imperial 
 Rome had been the common property of all the people, and the 
 rivers, which had been the property of the sovereign power or na- 
 tion, and which during the barbarian rule became the property of 
 the rulers themselves, and then of the kings who followed them, 
 and later of the people of the republics, now became the property 
 of the local feudal lords. 
 
 The Roman laws had been lost to the people, and all records of 
 them were at one time thought to have been destroyed ; but among 
 the unwritten laws of the country — in the customary law of the 
 people, with respect to the management and distribution of waters 
 in irrigation— were to be traced the influence of those principles 
 which we find to have existed in the Roman system. 
 
 Documents of the tenth and eleventh centuries, recording and 
 formulating previous practice, bear witness that " the principles of 
 
OWNERSHIP OF WATER-COURSES. 187 
 
 the Roman law in matters connected with the use of waters had 
 never been wholly lost sight of, but, embodied in the traditions of 
 the people, had continued in unwritten form to influence the de- 
 velopment of agriculture. * * * The irruption of the barba- 
 rians brought into Northern Italy (lermanic rights and the feudal 
 laws. All the rights appertaining to the public centered in the 
 feudal lord of a commune, a pro\ince, or a kingdom, becoming 
 his absolute property. * * * It was not for purposes of police 
 that the feudal superiors exercised all the rights of masters over 
 the water-courses, but that their right of absolute property necessa- 
 rily absorbed everything previously held to belong to the commu- 
 nity. There existed, in fact, merely the relations of masters and 
 subjects." — [Smith, Vol. II, p. 124; quoting Giovanetti. 
 
 "At the peace of Constance, in 1183, the Italian towns of the 
 Lombard League recovered all the rights previously vested in the 
 feudal superiors, and from that time the rivers have been held to 
 be public property. These rights were then vested in the cities 
 themselves, which each exercised authority over a certain extent 
 of adjoining territory." — [Idem. p. 134. 
 
 From the Earliest to the Present Law. 
 
 The earliest recorded laws of northern Italy date from the tenth 
 century, when Otho the Great, emperor of Germany, granted the 
 cities of Lombard}' the right to live according to their ancient laws 
 and local customs, which included their customs and regulations 
 regarding irrigation. 
 
 A code of the republic of ]Milan, dated in the early part of the 
 thirteenth century, contains an extended .series of provisions regu- 
 lating the use of water in irrigation, the right of way to conduct it 
 in canals, and the privilege of diverting it from streams. 
 
 The laws of the republic of Venice, dated in 1455, recognize the 
 ownership of running waters as being in the government as repre- 
 senting the whole people, forbid the diversion of water from the 
 streams without "the requisite authorit}' from competent magis- 
 trates," and provide that the waters may be used "by every in- 
 habitant of the territory of ^^erona " " for the irrigation of his 
 property," after obtaining the requisite authority and " under the 
 condition that he inflicts no injury on parties possessing older 
 rights to the same waters." — [Smith, Vol. II, p. 121. 
 
 When the monarchic element was introduced, there were con- 
 stant struggles between the royal governments and municipalities 
 on the question of the right to the running waters. 
 
 The result of these struggles was a recognition on the part of 
 
188 ITALIAN IRRIGA TION LEGISLA TION. 
 
 the governments of certain water-rights already utilized, but the 
 successful assertion of ownership by them of all other waters. So 
 that, to quote again the author above referred to; " In Northern 
 Italy the waters of all streams, whether navigable or non-naviga- 
 ble, appertain to the royal or public domain." 
 
 Ownership: Lovibardy, Piedmont — all Italy} 
 
 During a large part of the present century, and until 1865, the 
 valley of the Po was under several separate governments, so that 
 even the general laws were not uniform for all of this irrigation 
 region, until a very recent date, and even yet regulations estab- 
 lished by some of the local governments are still in force in the 
 states for which they were promulgated. 
 
 In what will hereafter be said, reference will be made to the 
 laws of Piedmont and to those of Lombardy, as they existed a few 
 years ago, and until the merging of the governments into that of 
 the kingdom of Italy, and then, for each heading, the provisions of 
 the general civil code of Italy, known as the Code of ^^ictor Em- 
 manuel, and promulgated in 1865, will be given. 
 
 Lombardy. — That which was said in the final paragraph of the 
 preceding section, had reference more particularly to Lombardy or 
 the Lombardo- Venetian Kingdom, and as it existed under Aus- 
 trian dominance. 
 
 The old established claim of the cities, communes, and associa- 
 tions of proprietors, and of noble indi^'iduals, to the supplies of 
 water which they had for long periods of time actually utilized, 
 having been recognized, the government asserted and maintained 
 its ownership to all natural streams whether navigable or not. 
 Diversions of water under the old claims were subjected to govern- 
 mental regulation, and no new diversions could be made, or new 
 work built in the stream beds without special administrative au- 
 thorization. 
 
 But when the government had come into full control of the 
 streams, so many claims to their waters had grown up, that the 
 propertyship of the state was almost a barren one, and it found 
 itself heir to a struggle for the control of rights unregulated with 
 respect to the public, and unadjusted amongst themselves. 
 
 1 See, Smith, Vol. II, Part IV, pp. 11R-14G, 24S-263; nlso, the Sardinian Codes, 
 the Italian Civil Code. 
 
OWNERSHIP OF WATER-COURSES. 18S) 
 
 Piedmont. — In the kingdom of Piedmont, also, the right of prop- 
 perty in all running water was reserved to the state. This reserva- 
 tion applied not merely to the larger class of rivers, but also to the 
 streams and torrents, the waters of which could only be \ised under 
 specific grants from the government. 
 
 A royal ordinance concerning the use of waters, and dated in 
 1817, commences with the following articles: 
 
 "I. All the rivers and torrents in the state are royalties, and 
 in consequence they appertain to the royal domain. 
 
 " II. No one can establish channels or canals for the introduc- 
 tion of water into his property, either for the use of mills or other 
 structures, unless he possesses a legitimate title to the same, or has 
 obtained a royal grant." — [Smith, Vol. 2, p. 248. 
 
 At a later date (1828) a royal instruction to the intendants of 
 provinces, concerning the regulation of water-courses, commenced 
 as follows: 
 
 "All the rivers and torrents in the state are regali, and belong in 
 consequence to the royal domain. 
 
 " Hence, therefore, the sovereign permission is necessary before 
 the waters can be used in any way whatever, either in agriculture 
 or industry."— [Smith, Vol 2, p. 249. 
 
 The civil code of Charles Albert, of the kingdom of Sardinia, 
 published in 1837, was to a very great extent a following of the 
 Code Napoleon of the French, but in the matter of ownership of 
 running waters, and water-courses, the preceding laws of the Lom- 
 bardian kingdom are confirmed by Art. 420, as follows: 
 
 "The * * * rivers and torrents * * * and generally 
 all those portions of the territory of the state which cannot become 
 private property, are considered as dependencies of the royal 
 domain." 
 
 The alienation or grant of such property as is specified in this 
 article is subject to special rules. These rules were practically 
 the same as others which preceded them, and made necessary the 
 acquirement of special permits or concessions from government 
 before water might be diverted from the streams for any purpose, 
 except under the old established rights. 
 
 Of the principle here involved M. Giovanetti says: "We, in 
 Northern Italy have been judicious in ranking among the things 
 appertaining to the royal or public domain, the waters of all rivers 
 and streams, whether navigable or non-navigable. In this respect 
 Art. 420 of our (the Sardinian) civil code is the reverse of Art. 
 
1 90 ITALIAN IRRIGA TION LEG I SLA TION. 
 
 538 of the Code Napoleon, which regards navigable rivers only as 
 those belonging exclusively to the state." 
 
 The, Kingdom of Italy.— Aiter all Italy had been brought under 
 one government, in 1865, was promulgated the civil code of Victor 
 Emmanuel, of which Art. 427 is as follows: 
 
 " The national roads, the shore of the sea, the harbors, bays, 
 coasts, rivers and torrents, the gates, the walls, the ditches, the bas- 
 tions of forts and fortifications, form part of the public domain." 
 
 This provision of the code of 1865 is the law of Italy to this 
 day, and under it all running waters, except those of very small 
 streams, indeed, are claimed as the property of the government 
 representing the people as a nation, and they are administered 
 very much as are the waters of the navigable streams of the public 
 domain of France. 
 
 Navigability, or only floatability for timber even, would not be 
 a safe test for streams of great economical and public importance 
 in Northern Italy, for the river beds are of such excessive slope 
 and roughness, even where the volume of water is considerable 
 and used by means of great works for irrigation, that navigation 
 would be out of the' question, except at very great expense for 
 works of improvement. Although the rivers have been improved 
 for navigation to some extent, works of this class have not been 
 nearly so extensively prosecuted as in France; so that the streams 
 at the heads of irrigation canals, although larger in point of vol- 
 ume of water than are the irrigation rivers of France generally, 
 are frequently not navigated or even used regularly for the float- 
 ing of timber. 
 
 We see, from these physical circumstances, an apparent under- 
 lying reason for the different definition of the public streams in 
 Italy from that adopted in France. Navigability itself was a 
 ruling consideration in France, while volume of water for irriga- 
 tion was the point of importance which made the stream one of 
 public utility in Northern Italy. 
 
 The codes of Charles Albert and of Victor Enamanuel say that 
 " rivers and torrents " are dependencies on the public domain. As 
 a matter of fact, in Northern Italy every stream of perennial vol- 
 ume, other than very small streamlets, is regarded as a river 
 {fieume) ; and every stream of intern:iittent flow from the rainfall 
 or melting of snows, except the smallest, is regarded as a torrent 
 
CONTROL OF WATER-COURSES. \\)\ 
 
 {torrente). Thus, it is only streams and ra\dnes quite insignificant 
 in size that are ranked as other than part of the public domain, 
 and these are, because the government has not chosen to extend 
 the application of the words "river" and "torrent" to them to 
 meet, in their cases, the requirements of the law. 
 
 GoVERNjrENTAL CONTROL OF WaTER-CoURSES. 
 
 Under this heading will be given without further comment or 
 remark, for the present, a number of extracts from various acts, 
 laws, etc., showing the extent and nature of the control and man- 
 agement of water-courses which the recent governments of Pied- 
 mont and of liOmbardy, and the present one of all Italy, have 
 established or continued in force. 
 
 Regulations in Piedmont. 
 
 The first abstract is that of the General Regulations for Wafer- 
 Covrses in Piedmont, which were promulgated in 1817, and re- 
 mained in force for some years at least, after the unification of 
 the government of Italy; indeed, if changed at all it is but quite 
 recently. 
 
 And the second abstract containing some articles of the Sardin- 
 ian penal code, applicable in Piedmont, and providing for the 
 punishment of those who offend against government regulations 
 and the laws respecting water-courses, and irrigation and drain- 
 age works. 
 
 (-?) General Regnlat inns for Water-Omrses in Pledviont. 
 
 "All proprietors, possessors, or employers of canals, supplied by 
 rivers and torrents, are forbidden to execute any works in the beds 
 of the latter without the sanction of the authorities, under penalty 
 of a fine not less than 10, and not greater than 100 lire (from 
 about $2 to $20) , in addition to the expense of replacing things in 
 their original state, and of compensation for any damages which 
 may have been caused to other parties. 
 
 '' Proprietors, possessors, or employers of canals obtaining their 
 supplies by means of fixed dams, are bound to maintain the posi- 
 tions and forms of these unaltered, to avoid raising their sills, or 
 extending them farther across the beds of the rivers. 
 
 " ^^'^hen the supplies are obtained by means of temporary dams, 
 made so as to be easily removed in times of flood, it is forbidden to 
 render such works permanent, or to reconstruct them with heights 
 or in positions different to those previously in use. 
 
 "It is forbidden to proprietors, etc.. of canals supphed either by 
 
192 ITALIAN IRRIGA TION LEGISLA TION. 
 
 permanent or temporary dams, to make any excavations in the beds 
 of the rivers, whereby the supply would be unfairly augmented. 
 
 "Parties violating the foregoing provisions shall be bound to 
 restore things to their former state, and shall, in addition, be sub- 
 ject to a fine not less than 100, or greater than 300 lire (from $20 
 to $60) for each offense. 
 
 "When changes in the condition of the streams may render 
 alterations of dams or additional channels of supply necessary, the 
 sanction of the superior authorities must be applied for. In such 
 cases the claimant must lay before the intendant of his province a 
 regular plan of the proposed works, prepared by a hydraulic engi- 
 neer, and showing the part of the river and adjacent lands which 
 will be affected by them, as also the different levels of the same. 
 
 "The intendant must visit the spot, or ascertain, through the 
 agency of the government engineer of the province, that no injury 
 to any one will result from the executions of the proposed works. 
 All parties in the same, or in other provinces or districts, whose 
 interests may be affected by the works, are to be heard for or 
 against them, as may be. 
 
 " When, from unforeseen causes, want of water may arise, the 
 proprietors, etc., of canals are authorized, in the event of urgency, 
 to take measures to obviate the same, reporting their proceedings 
 to the intendant of the province, who will cause the woi-ks to be 
 inspected; and if they are found to be irregularly constructed, or 
 likely to cause injury to others, will have them removed or altered 
 as may be expedient. 
 
 "When changes in the course of the streams render works 
 necessary, the matter shall be referred to the agency-general of 
 finance; and the intendant-general, having obtained the opinion 
 of the permanent commission (of engineers) , will order the neces- 
 sary proceedings. 
 
 " The proprietors, etc., of canals are bound to maintain all the 
 works in an efficient state, and are personally responsible for any 
 damages to others arising from their neglect. 
 
 " They are also bound to provide for the free escape of surplus 
 water in time of flood, under penalty of a fine varying from 10 to 
 100 lire, in addition to giving compensation for damages. 
 
 ' Siphons for the passage of waters belonging to private parties 
 beneath the beds of streams, shall be maintained unaltered by 
 their proprietors; and they are forbidden to execute any works 
 connected with them, which might contract the sections or raise 
 the beds of the rivers, under pain of a fine not less than 30 or 
 greater than 150 lire, in addition to the expense of restoring 
 things to their original state. 
 
 "Other articles prescribe conditions to proprietors of siphons 
 under streams, binding them to permit these to be altered, as the 
 government engineer may consider necessary, with reference to 
 the protection of the public rivers."— [Smith, Vol. II, pp. 304-307. 
 
CONTROL OF WATER-COURSES. 193 
 
 (2) Provisiotw of the Sardinian Penal Code — Applicable to Water-Courses, etc., in 
 
 Piedmont, 
 
 "Article 711. Whoever shall have voluntarily destroyed, cut, 
 or broken through the dikes or embankments constructed for de- 
 fense against the rivers, streams, or torrents, and shall have caused 
 thereby an inundation in which one person has perished, shall be 
 punished by death. If, however, this person has perished under 
 circumstances which the offender could not possibly foresee, the 
 punishment shall be that of hard labor for life. 
 
 " In every other case, the punishment shall be forced labor for 
 certain peridds, or, in lieu thereof, solitary confinement for seven 
 years at least. 
 
 "Article 712. If the destruction or rupture of the dikes and 
 embankments, or like works alluded to above, shall be attribut- 
 able to a simple fault, the punishment shall be that of imprison- 
 ment. 
 
 "Article 713. As regards other breaches or injuries done or 
 caused to dikes, embankments, bridges, hydraulic buildings, or 
 other works of art, including such as belong to private parties, the 
 punishment shall be that of solitary confinement. The tribunals 
 may, however, in consideration of the circumstances and the 
 nature of the injuries, substitute for the preceding, simple im- 
 prisonment. 
 
 ********** 
 
 "Article 718. Every individual who, without right or by means 
 other than those above indicated, shall voluntarily cause waste, 
 damage, or deterioration on the lands of others, whether by level- 
 ing or filling up ditches or canals, shall be subject to the penal- 
 ties specified below: 
 
 " If the damage done shall exceed the value of 100 lire (about 
 $20), the punishment shall be three months' imprisonment at 
 least. 
 
 " If it does not exceed this varlue, the punishment shall also be 
 imprisonment, of which the period maybe extended to six months. 
 
 " In the two cases referred to above, the tribunals may add to 
 the imprisonment a fine, which shall in no case be less than one 
 half, or greater than twice the amount of damage done. 
 
 ********** 
 
 "Article 723. He who, without title, and without right, shall 
 take water, or cause it to be taken from any reservoir, or from 
 rivers, streams, torrents, rivulets, springs, canals, or water-courses, 
 and shall appropriate it to any use whatever; 
 
 "He who, to the same end, shall break, or cause to be broken, 
 the dikes, dams, sluices, or other like works, existing along the 
 rivers, streams, torrents, rivulets, springs, canals, or water-courses; 
 
 "He who shall hinder, in any way, the exercise of rights which 
 other parties may have acquired to the said waters; 
 13^ 
 
] 94 ITALIAN I R RIG A TION LEG IS LA TION. 
 
 " Finally, he who shall usurp any right whatever on the sources 
 of water referred to above, or shall trouble any one in the enjoy- 
 ment of the legitimate possession he may have acquired; 
 
 " Shall be punished by imprisonment, the period of which may 
 extend one year; and by fine, the amount of which may be carried 
 to 500 lire (nearly $100). The tribunals have the power of inflict- 
 ing separately one or other of these punishments. 
 
 "Article 724. If individuals possessing a right to obtain or use 
 water, fraudulently cause their outlets, dams, or channels, to be 
 constructed in forms different to those agreed upon, or having 
 capacities of supply greater than those to which they have right, 
 they shall be punished as guilty of abstraction of water. 
 
 "Article 725. The proprietors, farmers, or other employers, who, 
 in using their legitimately acquired rights to water, shall cause it 
 to overflow the roads or lands belonging to others, shall be pun- 
 ished by a fine, which shall not exceed one fourth of the amount 
 of the damage done. 
 
 "Article 726. If the crimes contemplated in the present chap- 
 ter shall be committed by the guardians of woods and waters, or by 
 any other public agents, whose duty it is to check or prevent them, 
 the punishment of imprisonment, when inflicted, shall exceed by 
 one month, at least, and at most by one third of its duration, the 
 heaviest penalty inflicted on individuals not public agents, who 
 may have been guilty of the same crime, provided always that 
 the maximum of punishment fixed for the said crime shall not be 
 exceeded." 
 
 Regulations in Lombardy. 
 
 The following abstracts are of regulations provided over a cen- 
 tury ago for rivers and districts in Lombardy, and which were in 
 force until quite recently, if, indeed, they are not so at the present 
 time, with the addition, only, of a more complete administrative 
 establishment for their enforcement. 
 
 These are regulations specially applicable to the river Lambro, 
 the one dated in 1756 and the other in 1782, and both of them 
 being republished under government direction in 1832: 
 
 (i) Special Regulation for the Rivn- Lambro. (1756.) 
 
 "The numerous disorders which exist along the entire course 
 of the river Lambro, from its origin in the Lakes of Alserio and 
 Pusiano, to its junction with the Po, having attracted the atten- 
 tion of the magistracy of the state of Milan, in consequence of the 
 inconveniences and injuries at once to the royal treasury„and to 
 public and private interests, which they have caused, most espe- 
 cially in the deficiency of water so frequently occurring, and trace- 
 able to them, and particularly as affecting the supply of the canal 
 Martesana: 
 
CONTROL OF WATER-COURSES. ]!)5 
 
 " The said magistracy, with the view of remedjdng such incon- 
 veniencies, has judged it expedient, leaving in full force all former 
 proclamations, especially such as affect the royalties of the waters, 
 to publish the present edict. 
 
 " Whereby, in the first place, it is forbidden to every person, of 
 ever}- grade or condition, without exception, to divert the water of 
 the river Lambro from its proper course. No one shall employ it 
 for the irrigation of arable land or meadows, without the appro- 
 priate permission and license by privilege or royal grant, under a 
 penalty of three hundred crowns, of which two thirds shall belong 
 to the royal treasury, and the remaining third to the guards of the 
 river appointed for its protection, whose testimony, with that of 
 one credible witness, shall be sufhcient to warrant proceedings 
 against offenders. 
 
 "All parties enjoying the use of water from the Lambro are 
 warned against taking more than is secured to them by their re- 
 spective rights, privileges, and grants, on pain of being proceeded 
 against, not only for damages to the extent of the value of the 
 water improperly taken in time past, but to entire deprivation of 
 the water, and other penalties described in this edict ; their outlets 
 shall be closed, and the evidence of the guards, or any other par- 
 ties reporting the offense, supported by a single witness, shall be 
 deemed sufficient for couA-iction. 
 
 " It is forbidden to millers, or other parties possessing mills on 
 the river Lambro, to retain or cheek the water in any way or under 
 any pretext whatsoever. When the mills are not at work, the 
 escapes shall be left open during the entire period of stoppage. 
 Such mills as do not possess proper escapes, shall be provided 
 with the same within eight days after the publication of the pres- 
 ent edict, so that the water may flow freely into the bed of the 
 river. These provisions shall be observed, under a penalty of one 
 hundred crowns, to be applied as above described. 
 
 " Whoever, possessing the right to establish outlets or channels 
 for the extraction of water from the Lambro, may have allowed 
 the same to have become broken or out of repair, shall he bound 
 to place them in good condition within one month after the publi- 
 cation of this edict, under the appropriate license of the magis- 
 tracy, who will determine, according to the circumstances of each 
 case, whether an inspection by the engineer or other official of the 
 tribunal be necessary, or simply the assistance of the guard. If 
 the repairs are not executed within the time specified, they shall 
 be immediately afterwards effected under the orders of the magis- 
 trac}-, and at the expense of the recusants. 
 
 " It is forbidden to establish dams, or to construct works of any 
 kind whatever, either across the beds or along the banks of the 
 river, without the especial permission of the magistracy, under a 
 penalty of two hundred crowns for each offense. The water shall 
 be allowed to flow freely for the benefit of irrigators at lower levels, 
 
196 ITALIAN IRRIGA TION LEGISLA TION. 
 
 and particularly for the increase of the supply in the canal Marte- 
 sana. 
 
 "All parties using the water of the Lambro are enjoined toobey 
 the orders of the guards appointed to watch over the execution of 
 the present edict, under a penalty of one hundred crowns, which 
 will be increased at the will of the magistracy. 
 
 "Two guardians are appointed for the river, one having charge 
 from the source, near the lakes Alserio and Pusiano, throughout 
 the entire district of Crescenzago, and the other from this latter 
 point to the junction of the Lambro with the Po. They are en- 
 joined to watch carefully over the execution of the present and all 
 preexisting regulations, to secure for the river all the water that of 
 right appertains to it, and to report all infractions of the orders of 
 the magistracy, on pain of removal, and such other punishment as 
 may appear due. 
 
 "No one shall be permitted to persevere in present or past 
 abuses, on the plea of neglect, tolerance, or carelessness of the 
 public agents. No such plea shall be accepted from any one in 
 mitigation of punishment for breach of these orders; and the 
 magistracy reserves to itself the power of taking whatever steps 
 may seem to it best in each case, saving always such rights as 
 may be vested in the royal treasury. 
 
 "This notification shall be published, not only in this city of 
 Milan, but in the towns of Monza and Melegnano, and in the ad- 
 joining districts."— [Smith, Vol. II, pp. 187-190. 
 
 (2) Special Regulations for the River Lambro. (1782.) 
 
 "Retaining in full force all preexisting regulations, and espe- 
 cially that under date the twenty-sixth July, 1756, the guard of 
 the Lambro residing at Monza is enjoined to visit annually before 
 the twenty-fifth of March, the springs, commonly called teste (the 
 heads), by which the river is fed, with the view of ascertaining 
 that all these are well cleared, and that they really supply the 
 entire quantity of water which could be obtained from them. All 
 parties interested in such supply should depute persons to accom- 
 pany the cam.paro during the said visits, to concert and arrange 
 with him regarding the nature and extent of the necessary clear- 
 ances, or of such other works as may be required for the efficiency 
 of the heads. The guard should report the whole of these pro- 
 ceedings for the information of the magistracy. 
 
 " Having satisfied themselves of the correctness of this report, 
 the magistracy shall order the execution of the repairs, the ex- 
 pense of which shall be recovered from the employers of the 
 waters in proportion to their respective interests in the same. In 
 addition to these expenses for works, a fair remuneration shall be 
 fixed, at the discretion of the magistracy, for the assistance given 
 by the guard. 
 
 " It is forbidden for the future to throw earth or rubbish, or other 
 
CONTROL OF WATER-COURSES. 197 
 
 matter into the river, or to extract sand, except from collections 
 of deposit; and in removing these, care shall be taken not to de- 
 range the natural level of the river. Excavations or ditches for 
 the collection of sand or gravel are absolutely prohibited. 
 
 " If a necessity should arise for clearing earthy materials from 
 the bed of the stream, parties desirous of doing so should commu- 
 nicate with the guard, who will satisfy himself that the work con- 
 templated can cause no damage, either to the river itself, or to the 
 adjoining properties. In the event of new work being undertaken, 
 reference should be made to the magistracy, who will prescribe 
 such conditions as may appear most appropriate in each case. 
 
 "Various sinuosities of the Lambro being caused by trees fall- 
 ing into the bed, or by spurs which throw the force of the stream. 
 on the opposite bank, to the injury of proprietors of land there, 
 from the erosion which is the consequence, the guard ought to 
 immediately intimate to the owners of such tree or spurs that they 
 must remove them within three days, otherwise they shall be re- 
 moved by the guard himself, and all expenses for work or damage 
 shall be at the charge of the proprietors. 
 
 " The trunks and roots of trees which come down the river in 
 time of flood shall be removed by the guard ; and as it is impossi- 
 ble to know whose property they are, they shall be granted to him 
 as, a reward for his exertions in removing them. 
 
 "The soaking of flax in tlie river being injurious to the fish, it 
 is absolutely prohibited; but parties may carry on the process, 
 each in their own channels, and the guard should at once report 
 any infraction of this order to the magistracy. 
 
 " To prevent any affectation of ignorance, his royal highness 
 orders this edict to be posted in all public places along the river, 
 and enjoins all parties to obey the agents of the magistracy." — 
 [Smith, Vol. II, pp. '190-192. 
 
 SECTION II. 
 
 Ownership and Control of Springs. 
 
 Character and Importance of Springs. 
 
 The northern plain of the valley of the Po, throughout the very 
 localities where the principal canals have brought their waters, is 
 the site of a great number of fontanili, or springs, which afford a 
 large and highly prized supply of water for irrigation. Under 
 extended areas of this plain, at depths from five to ten or more 
 feet from the surface, lie beds of permeable gravel and sand filled 
 with water, which the considerable transverse fall of the country 
 
198 ITALIAN IRRIGATION LEGISLATION. 
 
 puts under a slight head of pressure at localities towards the 
 middle and lower parts of the sloping surface. 
 
 Doubtless many of these fontanili formerly were natural springs 
 or little marshes producing water, like the cienegas of Los Ange- 
 les and San Bernardino counties in our state, and have been de- 
 veloped and concentrated in their flow by artificial openings; but 
 very many more, and their numbers mount up into the thousands, 
 are purely artificial developments. They are made by digging 
 into the permeable strata, and the waters, rising several feet, are 
 brought out to the surface and on to the meadows further down 
 the plain, by conducting them in ditches or closed conduits on 
 grade slopes less than those of the country. 
 
 Besides these peculiar springs of the plains, which play so im- 
 portant a part in their irrigation, the country generally is one 
 well supplied with subterranean waters, so that ordinary springs 
 are plentiful upon the higher lands and in the hilly and moun- 
 tainous districts, as in almost any similar region. Under these 
 circumstances we might expect to find the recorded customs and 
 laws of the countries replete with provisions touching the owner- 
 ship and use of spring waters, and such is the fact, for there are 
 treatises of considerable length and intricacy on this subject alone. 
 
 Right of Property in and Acquired Rights to Use Springs and Spring 
 
 Waters^ 
 
 Lomhardy. — The principle that ownership of land carries with 
 it all beneath its surface and all it produces, has prevailed from 
 the times of the earliest recorded laws in all these north-of-Italy 
 states. Waters rising out of the soil have always been regarded 
 as the absolute property of the owner of the soil, so long as he 
 retained them within the bounds of his estate, and did not permit 
 his title to suffer infringement by allowing some other proprietor to 
 acquire a prescriptive right to their use. 
 
 The springs of the Milanese alone, in upper Lombardy, num- 
 ber upwards of seven hundred, and are frequently very valuable. 
 Baird Smith tells of one, not an exceptional case at all, whose 
 rising-pool covered a space two hundred by one hundred feet in 
 area, and which, supplying twelve cubic feet of water per second, 
 was estimated to be worth !t!20,000. These springs always remain 
 the property of the owner of the soil, although the right to use 
 
 ' PS ?;jP°"' ^°'- ^^' PP- 193-198; Hmitli, Vol. I, sundry places, and Vol. II, 
 pp. lb (-109; 254-2.'i7, and elsewhere. Jf < 
 
OWNERSHIP AND CONTROL OF SPRINGS. 199 
 
 their waters may be wholly alienated and held by the owner of 
 some other property, either by sale or prescription. Baird Smith 
 cites the following case: 
 
 "The irrigating water on this property was derived from a 
 beautiful spring, which may be quoted as an illustration of the 
 strange way in which the rights of property to water have estab- 
 lished themselves in this country. The proprietor could not tell 
 me how or when the right of use was established in his family. 
 Xo written record of anj- kind existed to prove it; but from time 
 immemorial the use of the spring, though situated in the middle 
 of another estate, belonged to the possessors of the land he held, 
 and efforts made before the tribunals to invalidate his claim had 
 entirely failed. He had, however, a right only to the water; to a 
 passage for it and for his work-people along its banks; to sufficient 
 space on each side of the channel for depositing the sand or gravel 
 clearance ; while the soil, trees, and produce of the banks belonged 
 entirely to the proprietors of the farm on which the spring was 
 situated." 
 
 Piedmont. — The Sardinian code of 1837 had the following pro- 
 visions with respect to the ownership and control of springs, and 
 the acquirement or loss of right to the use of spring waters: 
 
 " Article 555. He who has a spring on his land may use it at 
 his pleasure, sa\'ing the right which the proprietor of a lower estate 
 may have acquired by title or prescription. 
 
 "Article 556. The prescription in this case can be acquired 
 only by an uninterrupted enjoyment during the space of thirty 
 years, calculating from the moment when the proprietor of the 
 lower land made and finished on the upper land visible works, 
 designed, and which have actually served to facilitate the descent 
 to, and the passage of the waters through, his own property. 
 
 "Article 557. The owner of a spring may not change its course 
 when the water necessary to the inhabitants of a commune, village, 
 or hamlet, is obtained from it, but if the inhabitants have neither 
 acquired nor prescribed rights to the water, the proprietor may 
 demand an indemnity, which is regulated by the tribunals, on the 
 report of professional men." 
 
 Remembering that this code was promulgated in 1837, about 
 thirty-three years after the publication of the Code Napoleon, and 
 that it was a codification from laws and decrees, some of them 
 made and put forth for the country by Napoleon during the period 
 of his domination of it, we readily appreciate the similarity of 
 these provisions to articles 641, 642, and 648 of the French code. 
 [See appendix I.] They are, indeed, in the original languages, 
 worded, as near as can be, exactly alike, with the important 
 
200 ITALIAN IRRIGATION LEGISLATION. ^ 
 
 exception noticed in the second couplet — articles 556 and 642. 
 Taking advantage of the experience gained from the contests in 
 France, occasioned by the uncertainty as to the location of the 
 works which a proprietor must construct to facilitate the flow on 
 to his estate, in establishing a prescriptive right to the use of spring 
 waters, the framers of the Sardinian code evidently followed the 
 decisions of the French courts noticed in chapter V, and which at 
 that time had been full enough for guidance, and embodied in 
 their code itself the explanatory provision whose absence from the 
 French code had occasioned so much trouble in France. They 
 distinctly said that the works necessary in the establishment of 
 the prescriptive right must be "visible works," and "on the upper 
 land" — that is, the land where the water rises, and where it is 
 owned — and that they must be maintained for thirty years. It is 
 said that this provision has prevented a repetition in Lombardy of 
 the long contests which troubled the French courts on this point. 
 
 The Kingdom of Italy. — The code of Victor Emmanuel (see ap- 
 pendix II), promulgated in 1865, for all Italy, and now the law 
 of the country, presents in articles 540, 541, and 542, provisions 
 corresponding to those of articles 555, 556, and 557 of the Sardin- 
 ian code above quoted. Article 540 of the new is identical in word- 
 ing, in the Italian, with article 555 of the old code: the principle 
 as to ownership of a spring is the same for all Italy as it was for 
 Piedmont and other parts of the Sardinian kingdom. Article 541 
 of the new differs in general wording from article 566 of the old 
 code, as indicated by the translations given, and also contains the 
 important addition to the effect that the works shall not only be 
 " visible " and " on the upper estate," but shall be permanent, in 
 order to constitute conditions to establish a right of use of the 
 waters of a spring. Otherwise, the articles are substantially the 
 same. Article 542 of the new is differently worded, but has sub- 
 stantially the same meaning as article 557 of the old code, with 
 the exception that the character of evidence required in the adju- 
 dication of damages, is left to other general provisions of law, and 
 not specified for this case in the new code. 
 
 Regulation of the Opening and Use of Springs.^ 
 
 Not only, fron) the earliest recorded custom touching this sub- 
 ject, has the ownership of ground-waters in Italy vested exclu- 
 
 ' Authorities, same iis last referred to, and also as cited below. 
 
OWNERSHIP AXD COXTROL OF SPRINGS. 201 
 
 sively and complt?tely in the owner of the land, but within certain 
 prescribed regulations as to distances from other works, ever}- 
 owner of lands might dig for water as he chose, and do with water 
 so found as he saw fit. The origin of these springs, scattered by 
 thousands over the plain, being in a common water-bearing stratum, 
 which was cut through by the natural, as well as cut into by the 
 artificial surface drainage and supply channels — the rivers, creeks, 
 and large canals — ^it was found at an early period in the develop- 
 ment of the country that the opening of new springs drained the 
 waters from old ones, as well as from the water-courses, when ex- 
 cavated too near thereto. 
 
 Amongst the earliest of the statutes of ]Milan was one prohibit- 
 ing the opening of a new spring on any property within a certain 
 distance from the bank of any river, or within a certain other dis- 
 tance of an}- other spring already formed, under pain of a heavy 
 fine to be forfeited to the treasury of ^lilan, and with the obliga- 
 tion to refill the excavation and extinguish the new spring. Later 
 legislation discontinued the prescribing of any fixed distance to 
 be maintained between springs, but provided for leaving that point 
 to experts to decide for each case according to circumstances. 
 
 Lombardy. — The important parts of the legislation of Lombardy, 
 regulating the opening of new water-courses, in force from the 
 early part of this century to the consolidation of the kingdom of 
 Italy, about twenty j'ears ago, were contained in the law of 1804 
 and a decree of 1S06. The it^m in point, of the law referred to, 
 was as follows: 
 
 "Article 55. It is forbidden to excavate or open springs, or 
 heads of springs, water-courses, and channels, as also to deepen or 
 increase the dimensions of excavations, or springs actually exist- 
 ing, in the vicinity of rivers or canals, within the distances which, 
 according to the judgment of professional men, could lead to 
 injury to the rivers or canals, or to their banks." 
 
 This law was one placing the running waters — rivers, streams, 
 and torrents — under the charge of the public administration, and 
 providing regulations to be obser^i-ed in carrying out the charge. 
 It did not relate, in any way, to springs and waters not of the 
 public domain, except as might be necessary to protect the public 
 waters. Hence we find that its provision concerning the distances 
 to be observed in opening new springs, and making excavations 
 ■which might cause the opening of springs, related to the "vicinity 
 
202 ITALIAN IRKIGA TION LE GISLA TION. 
 
 of the rivers and canals," only. The decree of 1806 supplemented 
 the above provision of the law, by the following paragraph, in arti- 
 cle 12 of title 2: 
 
 " Saving the prohibition in article 55 of the law of 1804 " [above 
 quoted], "it is permitted to every one to excavate springs on his 
 own land, and to conduct the waters, respect being always had to 
 any rights which other parties may possess." 
 
 It has been held that this provision of the decree of 1806 ap- 
 plied the rule of the law of 1804 to all excavations on private 
 lands, regulating their distances from other springs, canals, etc.; 
 of private parties, as these had previously been regulated with 
 respect to the location of public canals and rivers. These rules 
 were the result of a summarizing of the outcome of experiences 
 wherein it was found that circumstances of soil, subsoil, and prac- 
 tice produced such great differences in the minimum distances to 
 be maintained between new and old excavations and channels — 
 these varying from 8 to 200 yards — that it worked hardship to 
 establish any fixed distance, and equity could only be arrived at 
 by a general provision of law, leaving its application to expert 
 judges- of the facts and natural laws in each case. De BufiFon 
 says, with reference to the laws of 1804 and 1806: 
 
 " By this ruling, as may be seen, the legislator was compelled 
 to adhere to the principle of leaving it entirely to the option of 
 experts to fix the distances of new excavations from older estab- 
 lished works, in the different localities, so as to cause no injury, 
 without prescribing a minimum determined distance, as has been 
 done in the case of the Piedmontese law. The fact is, that it has 
 been very difficult to fix this minimum for a territory like the 
 Milanese, where, in most any locality, one is sure to find water by 
 excavating, and never knows but that it is water which has per- 
 colated from some of the numberless canals which exist in the 
 neighborhood."— [De BufTon, Vol. II, p. 228. 
 
 Piedmont. — The early legislation of Piedmont on this subject 
 was crystallized in articles 599, 600, and 602 of the Sardinian code 
 in 1837, and in this form continued in force until the consolida- 
 tion of the Italian kingdom in 1865. These articles take the form 
 of, first, prescribing rules for excavations, such as ditches, canals,, 
 etc., not designed for the purpose of opening new springs, and, 
 then, applying these rules, with additions, to the case of excava- 
 tions made expressly for the purpose of getting a new flow of wa- 
 ter. The articles concerning excavations for ditches will be given 
 in a subsequent chapter of this paper. I state their main features 
 
OWNERSHIP AND CONTROL OF SPRINGS. 203 
 
 here, and then give the article specially relating to excavation& 
 for springs. 
 
 In excavating upon one's own land, for a canal, ditch, or other 
 similar purpose, the upper edge of the excavation had to be placed 
 at a distance at least equal to its depth from the nearest boundary 
 of the property of another; the face of the excavation had to be 
 sloped away at a rate not steeper than one on one, and if local 
 custona or regulations prescribed a greater distance or longer slope, 
 then such custom or regulations had to be followed. And, fur- 
 thermore, should the boundary of the estate be formed by a ditch 
 or road owned in common, the excavation had to be at the dis- 
 tance mentioned, from the nearest edge of such ditch or road. 
 These provisions are found in substance in articles 599 and 600; 
 article 601 relates to the case where the line of boundary is formed 
 by a party wall, or wall owned in common, and then comes the 
 special provision concerning springs, as follows; 
 
 " Article 602. Parties desirous of opening springs, of establish- 
 ing heads or channels of discharge for the same, of making canals 
 or water-courses, of clearing, deepening, or widening the beds, of 
 increasing or diminishing the slopes, or varying the forms, shall be 
 bound to observe such increased distances over and above that 
 fixed in the preceding articles, and to execute such other works, 
 as may be considered necessary for the protection of preexisting 
 springs, canals, or water-courses, designed either for the irrigation 
 Of land or the supply of buildings. 
 
 " And in case of dispute between proprietors, the courts in decid- 
 ing ought to aim at reconciling the respective interests of the par- 
 ties in the manner most just and equitable, having due regard to 
 the rights of property, to the advantage of agriculture, and to the 
 special uses to which the water may be destined. And, further, 
 in all cases where such proceedings may be necessary, they ought 
 to determine and decree, in favor of one or the other party as may 
 be right, that amount of compensation which may appear on 
 grounds of justice and equity to be fairly due." 
 
 r/ie Kingdom of Italy. — In the Italian code of 1865 the pro- 
 visions above referred to and quoted from the Sardinian, were 
 closely followed in tenor, so that it is only necessary to refer to 
 articles 575, 576, and 578 to note the concurrence. [See, appen- 
 dix II.] 
 
 The Question of Distance, one for Experting. 
 
 The ancient legislation of Milan prohibited the opening of new 
 canals or spring heads within 66 feet of rivers, and 580 feet of 
 
204 ITALIAN IRRIGA TION LEGISLA TION. 
 
 preexisting springs; that of Verona fixed the last distance at 639 
 feet; of Brescia at 106 feet; while the old laws of Mantua pre- 
 scribed 24 feet as the minimum between new and old water- 
 carrying or producing excavations of any kind; thus, illustrating 
 the fact that, in different quarters, soils of very different degrees 
 of permeability were found, and showing the necessity for leaving 
 questions depending upon varying physical phenomena, to be 
 determined as they arise rather than by any general rule of law; 
 and explaining why the modern legislation of the country has 
 provided for a proper official experting of such cases and a decis- 
 ion of them on the facts and the deductions properly due thereto. 
 The necessity for supervision of this kind is well presented by the 
 following extract from the work of an Italian author, worthy of 
 all attention on these subjects. He says: 
 
 "Agriculturists find it hard that they can scarcely strike a 
 spade into their lands without running the risk of being sum- 
 moned before the courts, and forced to give security against pos- 
 sible damages. The proprietors of springs and canals are wearied 
 to death by having to remain always on the watch against the 
 works undertaken by their neighbors, or of ha%'ing to submit 
 even to real injury from the difficulty of obtaining clear evidence 
 of it." — [Smith, Vol. II, p. 249, quoting Giovanetti. 
 
 SECTION III. 
 
 The Riparian Right.' 
 
 Bearing in mind the fact of the definition of public streams as 
 being "rivers" and "torrents," and that these words apply in 
 fact to all water-courses except very small streamlets and minor 
 ravines, we may now go on to the consideration of the riparian 
 water privilege accorded by the codes of Charles Albert (1837) 
 and of Victor Emmanuel (1865). 
 
 Piedmont. — The Sardinian code (1837) contains the following 
 provision: 
 
 "Article 568. Any one whose land borders on a stream flowing 
 naturally, and without the aid of works executed by man, and 
 which has not been included among the rivers, streams, and tor- 
 
 ' See the Sardinian and the Italian Civil Codes; also, De BufTon, Vol. II, 
 Chap. 45, Sei'. 1, and elsewhere; and Smith, as cited. 
 
THE RIPARIAN RIGHT. 205 
 
 rents, declared in article 420 to be the property of the royal do- 
 niain, may make use of it during its passage, for the irrigation of 
 his property. 
 
 "Any one whose property is intersected by such a stream may 
 make use of it within the limits of his own land, with the obliga- 
 tion, however, of restoring the water to its natural channel on its 
 passing beyond the boundary of his estate. 
 
 "Article 559. In the event of any dispute arising between the 
 proprietors to whom such waters could be useful, the tribunals, in 
 deciding, must conciliate the interests of agriculture, with, at the 
 same time, a due regard to the right of property. And in all cases 
 the local and special rules which regulate the course and use of 
 the waters must be observed." 
 
 From this we see that the owner of one bank of a natural stream 
 not considered of public importance, might make use of its waters 
 in irrigating his riparian lands; and that the owner of both banks 
 might also utilize it upon his estate, but that he had to return the 
 waters to the natural channel. 
 
 This was a close following of the Code Napoleon, after which 
 the Sardinian code was framed, and left open the question as to 
 whether or not the owner of one bank had to return the water to 
 its natural channel after use in irrigation, and if so, how much or 
 what proportion he had to return. This, as we have seen was a 
 great question in France, which was, after long litigation, set at 
 rest by decisions of the highest courts and rulings of the admin- 
 istration, declaring that the obligation to return the water to its 
 natural channel applied only in the case of diversion for other uses 
 than irrigation.' 
 
 The Kingdom of Italy. — In framing the Italian code in 1865, 
 this ambiguity was done away with, somewhat, by the following 
 wording: 
 
 "Article 543. Whoever has an estate bordering on a stream 
 which flows naturally and without artificial help, excepting such 
 as are declared public property by article 427, or over which oth- 
 ers have a right, may make use of it for the irrigation of his lands, 
 or for the exercise of his industries, on condition, however, that 
 he restores the drainage and residue of it to the ordinary channel. 
 Whoever has an estate crossed by such a stream may also use it 
 in the interval of its transit, but with the obligation of restoring 
 the drainage and residue of it to its natural course when it leaves 
 his lands. 
 
 " Article 544. Should a dispute arise between owners to whom 
 
 ' Refer to pp. 107 and 108, ante, and elsewhere. Remember that this applies to 
 streams not of the public domain : In France, to streams not floatable for logs, 
 even; and in Italy, those not of consequence as irrigation feeders. 
 
206 ITALIAN IRRIGA TION LEG IS LA TION. 
 
 the water may be of use, the judicial authority must reconcile the 
 interests of agriculture and industry with the rights of property; 
 and in all cases the particular and local rules applicable to the 
 stream, or the use of the water, must be observed." 
 
 As the law now stands in all Italy, therefore, the owner of one 
 or both banks of such a little stream may use its waters in irri- 
 gating his riparian lands, but he must restore " the drainage and 
 residue of it" to the ordinary channel; while he who is not a ripa- 
 rian proprietor cannot take such waters at all without the consent 
 ■of all of the bank-land owners, nor can any riparian proprietor 
 assign his right to water from such a stream to any one else. 
 The riparian right to divert waters from a stream is confined to 
 the case of very small streams, and is scarcely known in the Val- 
 ley of the Po — certainly not on any of the streams which rank as 
 important sources for irrigation supply. On this subject Mr. Baird 
 Smith has written as follows: 
 
 " Even the riparian proprietor is prohibited from using the stream 
 which flows past or intersects his land, without the special per- 
 mission of the government, both in Northern India and Northern 
 Italy." * * * But " there are instances in both regions where, 
 perhaps in remote places, in mountain valleys, or like localities, 
 the running streams have been used for ages by the inhabitants 
 without let or hindrance, or acknowledgment of superiority of any 
 kind. * * * The framers of the Albertine Code,' wisely re- 
 specting rights founded in' immemorial usage, include all such 
 rights in articles 558 and 559, which seem to be most judiciously 
 adapted to the peculiar circumstances under which these excep- 
 tions to a general rule have arisen."— [Smith, \o\. II, p. 256. 
 
 AUTHORITIES FOE CHAPTER IX. 
 
 Sismondi.—" History of the Italian Republics." By J. C. R. De t^i.smondi ■ 1 vol ■ 
 London, 1832. 
 
 Hallam.—" m^tovy of Europe during the Middle Ages." Bv Henry Hallam- 
 vol. ; New York edition, 1853. See, Chapter III, "Italy." 
 
 De Buffon-" Agriculturi.l Hydraulics : Of the Canals of Irrigation of Northern 
 Italy. By Nadault De Buffon, an engineer-in-cliief of the Government 
 (orps of Civil I'.iiKineer.s France; 2 vols. (French); Paris, 1862. See, 
 Vol. II, Chapters XXXVIII to XLVI. 
 
 +i,''y°'*7f^*'?.'i"^'^ '^^' ^^'^ ^"™'' author, this is a different work from 
 tnat cited lor t hapter II, and others succeeding, concerning French leg- 
 islation, etc.] =' B 5 
 
 .S'-«i«A.-" Italian Irrigation: A report on the agricultural canals of Piedmont 
 and Lombardy." By R. Baird Sniith, captain of engineers, Begal Presi- 
 
 f,.J'.V°\'-' 1'°^'^""' l'^5-„ ^^''e. Vol. II, Part IV, Historical Sum- 
 niary , ( .hapter I, f^cc. 1, and Chapter II, Sec. 1 ; and elsewhere, as cited. 
 hardmiaii Ci.vd Code.— [See, authorities for Chapter X.] 
 Italian Civil Code.— [See, authorities for Chapter X.] 
 
 " Albertin"''^'"''™ ^'^^ ^"^ promulgated by Charles Albert; and hence caUed 
 
WATER-RIGHTS AND WORKS. %fl 
 
 CHAPTER X.-ITALY'^'; 
 
 ITATEE PEIVILEGES AND OANAL WOEKS, AND THE ADMINIS- 
 TEATION OF WATEES AND WOEKS. 
 
 Section I. — The Right to Construct Works in and to Divert Waters from Streams. 
 Governmental I'olicy in regard to Water Privileges. 
 Applications and Formalities for Water Privileges. 
 Terms of Water-Right Concessions. 
 The new Italian Law on Water-Rights. 
 
 Section II. — Administrative Regulation of Water-Courses. 
 The Administration. 
 River Regulations. 
 Construction of River Works. 
 Policing of Public Waters. 
 
 Section III. — Administration of Government Canals. 
 The Administrative Bureau. 
 Canal Regulations. 
 
 SECTION I. 
 
 The Right to Construct AVorks in and Divert Waters from 
 
 Streams. 
 
 Governmental Policy in regard to Water Privileges. 
 
 During the times of the ownership of the streams and waters 
 by the sovereigns of the states, and by the petty feudal rulers, and 
 by the sovereign powers of the states as the representatives of all 
 the people, in each case, as has been spoken of under preceding 
 headlines, the right to divert water from any river or torrent could 
 only be acquired in the states of northern Italy by special grant 
 or concession of privilege made on a formal application, after due 
 ■examination and consideration of all the interests to be affected, 
 and all the circumstances likely to affect the interest acquired 
 under such grant. And now that the country is united under one 
 government and the waters belong to the royal or public domain, 
 
208 ITALIAN IRRIGA TION LEGISLA TION. 
 
 the same rule and substantially the same formalities in applying 
 it exist. 
 
 MVLan. — The earliest recorded laws of any of the northern 
 Italian states — the Milanese code of 1216 — contained an express 
 prohibition of the act of building a dam or other structure in 
 the channel or bed of a stream without due authority, and pre- 
 scribed a process necessary to be gone through with in obtaining 
 such authority. This principle of active governmental control 
 and administration of the streams is found in all the compila- 
 tions of laws which follow, for the region of the former republic 
 of Milan. 
 
 Venice. — During the fifteenth century the republic of Venice 
 promulgated anew throughout its irrigation provinces, regulations 
 as to diversion of water from streams, similar in principle to the 
 laws of Milan. Those thus published for the province of Verona 
 commence with this declaration: 
 
 "Every inhabitant of the territory of Verona is at liberty to 
 derive, from the rivers appertaining to the state, such supply of 
 water as is necessary for the irrigation of his property, on obtain- 
 ing the requisite authority from competent magistrates, and un- 
 der the condition that he inflicts no injury on parties possessing 
 older rights to the same waters." — [De Buffon, Vol. II, p. 297. 
 
 Having said thus much for two of the ancient governments, we 
 come now to those of modern times in these regions. 
 
 Lombardy. — It appears that the policy of the rulers in Lom- 
 bardy until the later years of its existence as a separate state, has 
 generally been to dispose of the waters of its streams in absolute 
 property, by gift or sale, to those who constructed the canals to 
 lead them out, or itself to lead them out in canals and sell them 
 directly or indirectly through "farmers of the canal revemies," to 
 the irrigators. One notable exception to this rule was during the 
 first domination of the Austrian government over the Lombardo- 
 Venetian provinces; at which time a regulation for the adminis- 
 tration of matters pertaining to water-courses was issued, which 
 contained this clause: 
 
 " In making grants we do not thereby vest in the grantee the 
 right of property in the water, but only the right to use it either 
 in irrigation or for hydraulic works. The right of property shall 
 remain as heretofore among the rights appertaining to the crown." 
 —[Smith, Vol. II, p. 212. 
 
WATER-RIGHTS AND WORKS. 209 
 
 But this was only a short-lived exception to the ruling policy 
 which prevailed for centuries in this region; so that at the period 
 of the consolidation of the Lombardian kingdom, such a great 
 number of rights to water had grown up and called for recogni- 
 tion, that the waters left at the disposal of the state were reduced 
 to a comparatively small quantity. After the formation of the • 
 more modern kingdom: 
 
 " In exercising its right of property in these waters for irriga- 
 tion, the government of Lombardy followed one of three courses: 
 1st. It disposed of the water in absolute property, to parties paying 
 certain established sums for it. 2d. It granted perpetual .leases 
 of the water on the payment of certain sums annually. 3d. It 
 granted temporary leases for variable times at certain annual 
 rates, the water reverting to the state on the termination of the 
 lease."— [Smith, Vol. II, p. 135. 
 
 The first named coi^rse in policy was most common in the ear- 
 lier years of the existence of the late government; and, at that 
 time, the last named plan was the least often resorted to. At a 
 later period the policy of granting the water in absolute property 
 was almost abandoned; that of granting perpetual leases became 
 prevalent; and the third method of granting temporary leases 
 came into favor. And these two courses were those followed by 
 the Lombardian government at the time of the consolidation of 
 the Italian government, and the extinction, as an independent 
 power, of that of Lombardy. 
 
 Piedmont. — The government of Piedmont has generally been 
 more conservative in the care of its waters than that of Lombardy. 
 Absolute grants of ownership of waters ceased in that country long 
 before the beginning of the present century. Water privileges 
 for all time have indeed been issued, but the full right of regula- 
 tion was reserved to the government, and the cession of property- 
 ship in the water was expressly disclaimed. This distinct reform, 
 however, occurred of late years as compared to the origin of many 
 water rights in the country, and the important works have claimed 
 absolute rights of ownership in the waters acquired in the centu- 
 ries gone by. During the later years of the existence of the Pied- 
 montese government its waters were disposed of only on long term 
 leases, drawn up with great care and in minute detail. 
 
 14' 
 
210 ITALIAN IRRIGA TION LEGISLA TION. 
 
 The Kingdom of Italy. — This last mentioned policy is that chiefly- 
 pursued by the government of Italy since it has supplanted those 
 of Lombardy and Piedmont; the duration and terms of conces- 
 sions being, as we shall see, quite similar to those already written 
 of for France in the chapters of this report which have gone before 
 the present/ 
 
 Applications and Formalities for Water Privileges. 
 
 Piedmont. — The acquirement of water privileges in Piedmont 
 and the operations of diversion were, for many years previous to 
 the consolidation of the Italian government, regulated by the fol- 
 lowing royal: 
 
 Instruction to the Govei-nors of Provinces and the Agents of the Royal Domain, with 
 respect to Grants of Water from Rivers and Torrents, dated in 1S2S. 
 
 " * * * Sundry statutes and patents formerly published, 
 have hitherto regulated the provisions for grants; but as it is de- 
 sirable to establish one uniform rule of procedure in such cases, 
 the secretary of finance, whose duty it is to obtain the royal sanc- 
 tion to proposed grants of water, has decided that in future the 
 follomng orders shall be observed: 
 
 "I. Parties desirous of obtaining grants of water from the 
 royal rivers and torrents, whether for irrigation or the movement 
 of machinery of any kind, must present to the intendant of the 
 province where the head of the proposed derivation is situated, 
 petitions addressed to his majesty and authenticated by the sig- 
 natures of the petitioners, or by those of a notary and advocate. 
 
 "II. To each petition the undermentioned documents should 
 be attached: / 
 
 "(1st.) A regular plan of the locality, on which shall be noted 
 the works which it is proposed to construct in the bed of the river 
 or torrent, and the adjacent ground, so far as it may be connected 
 with these works. 
 
 "(2d.) Longitudinal and transverse sections of the river whence 
 the supply of water is obtained, marking thereupon the depths in 
 time of flood, and under ordinary circumstances; also, the height 
 of the works to be established in the stream, and of the head of 
 the ditch. 
 
 "(3d.) A detailed report, proving the utility of the proposed 
 works, and that they cannot cause auv injury, either to other par- 
 ties, or to the river or torrent itself. 
 
 These documents must be prepared by a hydrauUc engineer. 
 But in the event of no hydraulic engineer being near at hand, or 
 
 t J^etters frojn Hojj Geoj-gg j. Marsh ; also, see Law concerning the Diversion 
 ot 1 ublic Waters August, 1884, an abstract of which is introduced as a whole 
 at end ot this section. 
 
WATER-RIGHTS AND WORKS. 211 
 
 of the works being of limited importance, it is permitted, but witli 
 special reserve, to employ a civil architect, or a land surveyor, in 
 the preparation of the papers above referred to. 
 
 " Tlie intendants of provinces will render all practicable assist- 
 ance to parties interested, so as to enable them to comply with 
 the rules of the superior authorities. 
 
 " III. The petition and the documents above specified should 
 all be prepared on stamped paper. 
 
 "IV. The intendant, on receiving the claim and its appen- 
 dices, shall satisfy himself of their regularity, and shall depute 
 the official engineer of the province to visit the spot at a specified 
 time, to investigate the practicability of the project, and the pro- 
 priety, or otherwise, of carrying it into effect; as also to decide on 
 whatever precautions or modifications regard to public or private 
 interests may require. 
 
 " V. The visit must be preceded by a publication of the claim, 
 within the limits of the district specially interested in it. 
 
 " If the claim and the works proposed are in any way connected 
 with the interests of more than one district, the notification should 
 be made at the same time throughout the whole. 
 
 " VI. The order of the intendant should contain a brief sum- 
 mary of the nature and extent of the proposed works, and an 
 invitation to all parties interested in them to be present at the 
 time appointed for the visit, when they can explain their views, 
 either verbally or in writing. 
 
 " VII. The report of the official engineer must, in all cases, 
 furnish full and clear details on the following points: 
 
 " (1st.) On the quantity of water to be taken from the river 
 and the special use to which it is to be applied. 
 
 "(2d.) On the form and dimensions of the headworks to be 
 constructed, being careful to note that the provisions expressed in 
 article 16 of the regulation of the twenty-ninth of May, 1817, are 
 vigorously to be enforced. 
 
 "(3d.) On the directions, heights, lengths, forms, and mode of 
 construction of the dams required to raise the water. 
 
 "(4th.) On the precautions to be observed by the grantee, when 
 the supply is to be obtained by means of temporary dams, in re- 
 placing the same after the floods. Grantees being generally inex- 
 pert and careless in hydraulic operations, a matter so important 
 as this proceeding should not be left dependent on their wills, 
 but definite measures should be prescribed whereby the injuries 
 likely to be caused to the beds of rivers or torrents by badly con- 
 structed dams may be guarded against. 
 
 "(5th.) On the capacity and slope of the canal for the passage 
 of the water. 
 
 "(6th.) On the means to be adopted to insure the regular exe- 
 cution of the works, to restore (when such is possible) the water to 
 the stream at a lower point, and to protect all parties from damage 
 by overflow of the canal or otherwise. 
 
212 ITALIAN IRRIGA TION LEGISLA TION. 
 
 "(7th.) And, finally, the official engineer must detail any local 
 peculiarities which may have influenced his opinion. 
 
 "With such information before it the permanent commission of 
 engineers (to whom the project will be referred) can better decide 
 on the propriety of sanctioning the final execution. 
 
 " The various documents above referred to will be attached to 
 the royal patent authorizing the grant, in order that both the 
 administrative and the judicial authorities may always have the 
 means of ascertaining precisely the terms of the said grant, and 
 of restricting the grantee within the limits of the same. 
 
 "VIII. On the receipt of all the papers connected with the 
 case, the intendant should forward the same to the agency general 
 of finance, with his own opinion upon them. 
 
 " IX. So soon as the agency general receives notice from the 
 secretary of finance that the royal patent for the grant has been 
 signed, it will communicate without delay with the intendant, 
 who will transmit the information to the oflElcial engineer, to the 
 syndic of the district, and to the petitioner, requiring the latter 
 to procure the aforesaid patent from the secretariat of finance, and 
 to pass it through the offices of the agency and the chamber of 
 accounts, within the space of four months, under pain of forfeiture. 
 
 " X. The receiver general shall be supplied with the necessary 
 instructions to enter the patent on his list, and to arrange for the 
 collection of the annual water rent." — [Smith, Vol. II, pp. 249-253. 
 See, also, De Buffon, Vol. II, p. 223, et seq. 
 
 Lombardy. — Several regulations of a like tenor prescribed the 
 forms of application and proceedings to be observed in obtaining 
 water privileges in Lombardy, but their provisions are so. like 
 those of Piedmont, just transcribed, that it would be a useless rep- 
 etition to give them here. 
 
 The Kingdom of Italy.— When these north-of-Italy governments 
 were set aside in that of unified Italy, in 1865, there was passed 
 a general law on pubHc works, of which chapter V of title III 
 treated of the diversion of public waters and established general 
 regulations and formalities to be observed in applying for privi- 
 leges to divert waters from rivers, torrents, streams, and other nat- 
 ural water-courses and bodies of water. This chapter has been 
 superseded by a special law on the subject, passed in August, 
 1884, an abstract of which is introduced at the end of this section. 
 It will be seen that articles 2, 3, 8, and 9, particularly, contain 
 instructions for proceedings to acquire water-right privileges, and 
 that the general terms are substantially the same as those hereto- 
 fore written of and explained for France. 
 
WATER-RIGHTS AND WORKS. 213 
 
 Terms of Water-Right Coiwessions. 
 
 Lomhardy. — Previous to the recent consolidation of the ItaHan 
 government, the general terms of water-right concessions in Lom- 
 hardy were fixed in a regulation dated in 1806, and which was in 
 this particular as follows: 
 
 Water-Right Regulations — 1806. 
 Title I. Diversions of Water from Rivers, Torrents, and Public Canals. 
 
 "Article 1. No one can divert public waters nor employ them 
 for mills without a concession from the government. 
 
 "Article 2. This grant specifies the quantity, the duration, the 
 manner, and the conditions of the derivation, and the particular 
 use of the waters, and establishes the annual rent which corre- 
 sponds and is due. 
 
 " Article 3. The terms of the preceding articles are not intended 
 to work prejudice against actual possessors in their rights and uses 
 for the -jvater-heads and mill-rights in which they already have just 
 title under the terms of the laws and customs in force in the dif- 
 ferent provinces. 
 
 " Article 4. No new grant can be made to bring injury to exist- 
 ing rights. These mil be protected, by appropriate reservations, 
 from the influence of later concessions. To this end all petitions 
 (for new grants) are published and posted, engineers are consulted, 
 and together with their reports the proper conditions for the con- 
 duct of the work are inserted in the regulation. 
 
 " Article 5. It is prohibited to change, under any alleged right, 
 the actual state of outlets and of fixed dams without the permission 
 of the government. 
 
 "Article 6. The works made for diverting water by the aid of 
 movable dams must be approved by the engineer-in-chief of the 
 province, who must give notice thereof to the direction-general. 
 
 "Article 7. The engineers are charged to take care, in the 
 public interest, not only of the use of the waters conceded for irri- 
 gation and for mills, but that the clauses and conditions imposed 
 in the ordinances are observed. 
 
 " Article 8. To this end, they must keep in their offices a regis- 
 ter, in which are recorded all concessions. 
 
 "Article 9. In case any one having a right to use water com- 
 mits any abuse (of the right) the engineers-in-chief are author- 
 ized, by virtue of their office, to reestablish the place in its original 
 state and under their direction; for this power must be fully ex- 
 pressed in all the acts of concession. 
 
 "Article 10. When contests occur concerning the use of waters, 
 devoted to no other object than the interest of individuals, they 
 shall be tried, as of old, by the ordinary tribunals. 
 
 "Article 11. When, in such contests, public and private inter- 
 
2 14 ITALIAN IRRIGA TION LEGISLA TION. 
 
 ests are both concerned, they are to be carried before the admin- 
 istrative authority."— [De Buffon, Vol. II, pp. 226, 227. 
 
 Piedmont. — By the terms of the Sardinian code, applying to 
 Piedmont, grants for the use of water from streams of the royal 
 domain were made only on condition that no injury should be 
 brought about to legitimate rights previously acquired. In the 
 construction of works and management of waters under such 
 grants, the grantees were obliged to avoid backing up waters 
 upon those holding rights above them, or precipitating waters in 
 undue volume on those below them, or depriving others of the 
 waters which were due them. And should any damage accrue 
 from their acts of omission or commission, they were bound by 
 the terms of their grant to repair the same, and further to suffer 
 such punishment as might be provided by the local or general 
 police regulations. In conducting their waters under such grant 
 they were obliged to construct works according to prescribed and 
 approved plans, to maintain those works under governmental super- 
 vision, and to observe the regulations provided for the ruling of 
 such matters. The following are the articles referred to: 
 
 "Article 631. The grants for the use of water appertaining to 
 the royal domain are always made on condition that they involve 
 no prejudice to anterior and legitimately acquired rights to the 
 same water. 
 
 "Article 632. Parties having the right to extract and divert 
 water from rivers, streams, torrents, canals, lakes, or reservoirs, 
 are bound to avoid injuring those situated above or below them 
 respectively, by the stagnation or by the backing up, or by the 
 change of course of the said water. Whoever by neglect may 
 cause any damage in these ways, shall be bound to repair the 
 same, and further to suffer such punishment as may be estab- 
 lished by the regulations for the rural police." 
 
 The Kingdom, of Italy. — Upon this point, articles 614 and 615 
 of the Italian civil code (see appendix II) contain the provisions 
 corresponding to those above from the Sardinian code. Supple- 
 menting the code provisions on this point, and the entire subject 
 of the present section, the legislation of Italy was made more com- 
 plete by a chapter in the public works law of 1865, and this has 
 now been supplanted by the still more ample law whose substance 
 is next presented. 
 
WATER-RIGHTS AND WORKS. 215 
 
 Present Law concerning Diversions of Public Waters} 
 
 The Kingdom of Italy. — The policy of the present Italian gov- 
 ernment, the terms of its water-right concessions, and the formali- 
 ties to be observed in applying for privileges, are fully set forth by 
 the following very recent law, which has gone into effect only in 
 February of the present year, taking the place of chapter V of title 
 III of the general law on public works, passed and promulgated 
 in 1865. An example of this line of policy and the terms of water- 
 right concessions is given in chapter XV, succeeding, in the ac- 
 count of the Cavour canal enterprise. 
 
 Abstract of the Law, passed Aiigust, I8S4, in effect Febi-uary, 1S8S. 
 
 No one may divert public waters, nor establish therein mills or 
 other factories, if he has not a legitimate title to a privilege to use 
 the water, or has not obtained a concession from the government, 
 which grant is subject to the payment of a rent, and to the condi- 
 tions established by the present law. Thirty years undisputed 
 possession is CAddence of a sufficient title to a privilege if no con- 
 tract or record of grant exists. — [Arts. 1 and 24. 
 
 Concessions are always made without prejudice to the rights of 
 third parties. Those which are for the diversion of water in per- 
 petuity can only be made by authority of a special law. In lakes, 
 in beds of bordering overflow waters, in navigable water-courses, 
 and in those of which the embankments and shore works are in- 
 scribed as -hydraulic works of the second class, the concessions of 
 water are made by royal decree, promoted by the ministry of 
 finance, after the propositions have been previously considered by 
 the council of the province which may be interested, and after 
 having heard the superior council of public works, in the interest 
 of the good regime of the water, of free navigation, and of the bor- • 
 dering properties. In all other public water-courses the conces- 
 sions are made by the prefect upon the advice of the council of 
 the prefecture, and after having heard the opinion of the provin- 
 cial civil engineer in cases where there may be opposition. When 
 a diversion of water may affect the territory of more than one prov- 
 ince, the concession is made by the prefect of the province in the 
 territory of which the point of derivation is situated. In case of 
 opposition on the part of another interested province the contro- 
 
 ' Laws and Regulations received from Ministry of Public Works, Italy. 
 
216 ITALIAN IRRIGA TION LEGISLA TION. 
 
 versy is decided by the minister of public works, upon the advice 
 of the superior council of public works, and the concession is made 
 by the minister of finance. — [Arts. 1 and 2. 
 
 The act of concession describes the quantity, manner, and con- 
 ditions of the diversion, conducting, using, and of the restoration 
 of the waters, the guarantees required in the interest of agricult- 
 ure, industry, commerce, and public health, and names the annual 
 rent .that is to be paid to the governmental treasury for the use of 
 the waters. The time within which the full amount of the con- 
 ceded waters have to be diverted and utilized, under pain of for- 
 feiture, is also specified; and discretion is given a competent 
 authority to cut short this term when it becomes justified by delaj's 
 in the execution of the works. Temporary concessions are made 
 for terms not exceeding thirty years; but at the expiration of such 
 term the grantee has the right to obtain a renewal of his privileges 
 for another term, and so on successively, saving the modifications 
 which altered conditions of the locality or of the water-course 
 may render necessary in the agreement of concession. The re- 
 newal of a concession may be denied when in the preceding term 
 the waters have not been used, when the privilege has been abused, 
 or when, in the judgment of the administration, the grantee has 
 not used his privileges for the proper and specified purpose. — [Arts. 
 4 and 5. 
 
 A grantee of a water privilege is free to vary the use and the 
 machinery of his manufactory if third parties be not damaged by 
 such change, and if no change is made in the mode, works, or 
 quantity of the diversion, nor in the place of restoration of the 
 waters. But notice of any such change of use has previously to 
 be given to the prefecture, on pain of a fine of triple the rate 
 payable for the privilege, and ^,lso saving the right of the admin- 
 istration to compel restoration of the works and accessories to their 
 original condition, and at the expense of the transgressors, when 
 the alteration proves injurious to other interests. If the altera- 
 tion augments the amount of water required or the motive force, 
 the change in the concession must be made as though it were a 
 new grant of privilege, and the rate will be fixed in proportion to 
 the increase of water or of the power acquired.— [Arts. 6 and 7. 
 
 Applications for new privileges, accompanied by plans for the 
 works proposed to be built for the diversion, conducting, use, and 
 restoration of the waters, are presented to the prefecture of the 
 province, and are thence communicated to the provincial depu- 
 
WATER-RIGHTS AND WORKS. 217 
 
 tations interested, for their observations. Then the projects are 
 published in the interested communities, notifying all interested 
 parties to be present at a specified time to present their views. 
 The provincial civil engineer goes over the ground with the appli- 
 cants and other interested parties, and reports his opinion. The 
 final conclusion must be reported within a month, but only after 
 the opposition has been fully met by administrative methods will 
 the concession be made. — [Art. 8. 
 
 When by reason of a change in the water-course, or for any other 
 reason, the grantee of a concession intends to change its position, 
 or the form or nature of the work authorized, or make additions 
 or other works accessory and in the bed or on the banks of the 
 water-course, or, finally, to add to or diminish the motive power 
 or the quantity of water derived, he must make application accom- 
 panied by plans and descriptions of his project as for a new con- 
 oession, and the proceedings will be the same as specified in the 
 preceding paragraph. In a case of urgency, the prefect, after hav- 
 ing heard the opinion of the provincial civil engineer, may, in a 
 provisional way, permit the desired work to go on for such purpose 
 as reestablishing the flow of water into the canal of diversion, on 
 condition that the grantees bind themselves to obey the final re- 
 strictions which may be imposed after the regular inquiry has been 
 had.— [Art. 9. 
 
 All proprietors, possessors, and users of privileges tc divert water 
 from rivers and torrents are obliged to maintain the specified open- 
 ings in their structures of diversion and to preserve them in good 
 condition, and they are held responsible for any damages which 
 may result to neighboring lands, save in case of overpowering 
 adverse circumstances. Such proprietors, possessors, and utilizers 
 must also, with their regulators, manage the diversions in a man- 
 ner such that in times of flood excessive waters be not introduced 
 into their respective canals, and they must do all possible with the 
 help of neighboring I'aborers, at such times, to prevent damage to 
 the stream, its banks, or embankments near their works. All per- 
 sons having permanent or temporary water privileges of diversion, 
 whether by open cuts, or structures stable or unstable, are obliged 
 to maintain them without damage to public or private interests, 
 following local usages, and maintaining proper flood openings; and 
 they are obHged to do such work as may be deemed necessary by 
 the administrative authorities, to guarantee the immunity from 
 •danger. The public administration is expected to enforce the con- 
 
218 ITALIAN IRRIGA TION LEGISLA TION. 
 
 ditions and restrictions imposed in water-right grants, and to see 
 to proper maintenance of works. If for some reason of public in- 
 terest it becomes necessary to change or alter a water-course or 
 modify the regime of a river at a point of diversion of water under 
 a government grant, the state cannot be held responsible for dam- 
 ages to the grantees, and they have no recourse except that of 
 ceasing to pay their rental for waters, or changing their works ta 
 suit the altered conditions. — [Arts. 10, 11, 12, and 13. 
 
 The payments for new privileges to divert public waters are 
 fixed according to the following rates: 
 
 For every module of water, of 100 litres (3.53 cub. ft.) per sec- 
 ond, for drinking or for irrigation without an obligation to restore 
 the drainage or residue, 50 lire (about $2.82 per cub. ft.) per year. 
 
 For each module, etc., with the obligation to turn the drainage 
 and residue from irrigation back into the stream, 25 lire per year. 
 
 For the irrigation of lands with a derivation not measured by 
 volume, for each ettaro (about 2.50 acres) irrigated, 0.50 lire (about 
 4 cents per acre) per year. 
 
 For concessions of water for the betterment or reclamation of 
 waste lands and irrigation of crops, jointly, the rates are reduced 
 to one half of those for irrigation, and where the water is used 
 only for reclamation of wastes the rates are but one fifth of those 
 for irrigation. 
 
 For water used in irrigation only in winter, according to the 
 definition contained in article 624 of the civil code, the foregoing- 
 rates for irrigation waters are reduced by one half. 
 
 For each nominal horse-power intended for motive force, 3 lire 
 per year. For power for floating mills the rate is 1 lire per horse- 
 power per year. The motive force by which the rate is fixed is 
 estimated when possible by measurement of the effective fall and 
 of the volume of water applied. 
 
 For mills and other manufactories which from scarcity of water 
 are able to work only at intervals, the water rents are regulated 
 according to the average amount of power available in past years. 
 But in no case will the annual rate be less than 3 lire per horse- 
 power for the full year. 
 
 For communities and works intended to distribute water to- 
 inhabitants of communities the privilege is gratuitous. 
 
 These rates are all for water privileges on public rivers, tor- 
 rents, and streams, and do not apply to waters granted or sold 
 
WATER-RIGHTS AND WORKS. 219 
 
 from canals belonging to the government. — [Arts, 14, 15, 16, 17, 
 and 18. 
 
 Grantees of water for irrigation, upon notifying the prefecture, 
 may use it also for motive power, provided no injury is done to 
 other persons; but grantees of power privileges may not use their 
 waters for irrigation without additional special permits therefor. 
 In any case for a double use, the rate will be the higher of the two, 
 and if the notification to the prefect is omitted the penalties of ar- 
 ticle 6 will be enforced. Violations of the provisions of this law 
 may be punished by imprisonment and by fines to a maximum of 
 500 Zire.— [Arts. 19 and 22. 
 
 The minister of public works is charged with the duty of com- 
 piling a complete schedule of public waters in each province of the 
 kingdom; and the schedule for each province will be published 
 therein, and interested parties will be expected to present and prove 
 their claims within three months after pubUcation. Thereafter 
 the schedules will become approved by royal decree, after hearing 
 the provincial councils of the provinces interested, the council of 
 public works, and the council of state; and in case of final contro- 
 versy questions may be carried into the courts. — [Art. 25. 
 
 The minister of public works is charged with the duty of com- 
 piling a complete schedule of diversions of public waters in each 
 province, from the returns obtained by proceedings as follows: 
 
 All users of pubhc waters are required to make to the prefecture 
 of their province, within two years after the adoption of the sched- 
 ule of public waters, a declaration of their claim of right, stating 
 (1) the locality of diversion from and that of its return to the 
 stream, (2) the use to which the water is applied, (3) the approxi- 
 mate quantity of water used annually, with an exhibit of the sur- 
 face irrigated or of the nature and extent of the works served, (4) 
 the history of the title or grant by which the privilege is held. 
 
 If this declaration is not made within the stipulated time of two 
 years, the delinquent diverter of water will be fined in an amount 
 equal to double the annual rate paid for the privilege, and a simi- 
 lar fine will be inflicted for each succeeding year he neglects to 
 present his statement; and after three years the administration 
 may suspend his use of waters altogether. — [Arts. 26 and 27. 
 
 Such is the very latest European legislation on the subject of 
 water-rights and irrigation. It is a noteworthy coincidence that 
 
220 ITALIAN IRRIGATION LEGISLATION. 
 
 on the very date upon which this Italian law went into effect the 
 State Engineer of California was advocating before a committee 
 of our last legislature the passage of a measure having the same 
 object and embodying substantially the same principles as articles 
 25, 26, and 27, above epitomized. And this was without any 
 knowledge of the Italian measure; for it will be seen on compari- 
 son that the advance sheets of this report presented to the legis- 
 lature contained no mention of the Italian law. Indeed, the 
 necessity for and general features of the proposed Californian law 
 for " The Discovery and Adjudication of Water-right claims " were 
 stated and outlined in the Report of the State Engineer for 1878-9, 
 the measure was drawn out in the report of 1880, and has been 
 urged in every succeeding report. 
 
 SECTION II. 
 
 Administbative Regulation of "Water-Courses. 
 
 The Administration} 
 
 The former administration of water-courses and waters in Pied- 
 mont has already been sufficiently explained in the provisions of 
 the " Instructions to intendants of provinces," transcribed under 
 the subhead of "Applications and Formalities," given in the first 
 section of this chapter. The organization and system of the Lom- 
 bardian government was so nearly identical with that of Piedmont 
 in this respect, as to render unnecessary any detailed reference to 
 it here. It now remains to glance at the present system for all 
 Italy, which indeed was founded upon that of Piedmont. 
 
 The Kingdom of Italy. — The executive functions of the Italian 
 government are exercised by ministers appointed by the king. 
 Amongst these are a minister of public works, and a minister of 
 agriculture, industry, and commerce. The powers and duties of 
 the minister of public works were defined at length in a general 
 law concerning public works, promulgated upon the unification 
 of the Italian governments, in 1865. These attributes relate to 
 national and other roads and railroads, capitalized railway pro- 
 jects, ports, lighthouses, public monuments, telegraphs, water- 
 courses, waters, and canals. With respect to these latter, the 
 
 1 Letters from Hon. George P. Marsh; General Law on Public Works, 1865. 
 
ADMINISTRATION OF WATERS. 221 
 
 minister is charged with " adjusting the flow and guarding of 
 pubUc waters, rivers, torrents, lakes, canals, and streams- of arti- 
 ficial current, examining and adopting projects for works relating 
 to river navigation, transportation and floatage of timber, works 
 for the protection of the banks and beds of water-courses, the 
 defense of adjacent lands from abrasion and inundation, works 
 for the diversion of public waters, the betterment of damp lands, 
 and, finallj', with the technical government of navigation of rivers 
 and lakes." He has charge of the "irrigation and na^vigation 
 canals belonging to the crown, so far as concerns the direction 
 of the projects, and the works of construction, defense, preserva- 
 tion, and improvement, and the technical part of the distribution 
 of the waters and the government of navigation." 
 
 The minister of agriculture, industry, and commerce is in an- 
 other law charged with duties relating to the use of waters in irri- 
 gation and the cultivation of crops thereby; and the minister of 
 finance controls the rents and has the economic management of 
 the waters of public canals. 
 
 As in the French administi'ative organization, there is a bureau 
 of ci^■il engineering attached to the ministry of public works, but 
 the organization is not so broad or complete, nor the employment 
 of the engineers so general throughout the country, in the guard- 
 ing of the streams and waters and the regulation of works, as in 
 France. But, for the valley of the Po, the systems of the Lom- 
 bardian and Piedmontese governments have been virtually per- 
 petuated, so that there is in this great irrigation region almost as 
 complete an organization as that already described for France. 
 
 Title "\'II of the public works law of 1865 treats of the civil 
 engineering ser\-ice under the direction of the public works min- 
 istry, but in a pro%dsional manner only, maintains in force an old 
 law of 1859, speaks of a new project for reorganization which will 
 be brought forward, makes some general enactments relating to 
 assignment of general government engineers to duty as engineers 
 to provincial gov^ernments, and recognizes the existence of provin- 
 cial corps of engineers which already have been spoken of for 
 Lombardy and Piedmont, for instance. 
 
 There have of late years been several movements to reorganize 
 the engineering ser\'ice for all Italj-, but from various causes these 
 have not been consummated. There is, however, a general and 
 permanent hydrographical commission, composed of ci^'il engi- 
 neers of the hydraulic ser\'ice, wliich super\'ises all afi'airs con- 
 
222 ITALIAN IRRIGA TION LEGISLA TION. 
 
 nected with water-courses and water-rights, and the minister of 
 public works is himself a civil engineer of high attainments. 
 There is a special hydraulic service too, as in the French system, 
 and all appUcations for water privileges have to be considered as 
 much at length and in detail, and more particularly from the 
 engineering, technical, and physical points of view, and less from 
 those of the law and local sentiment, than in the case of the French 
 system. Thus, the engineers are made the judges of the local 
 necessities and public advisability, or utility, and report directly 
 to the central administration, and upon a broader view of each 
 proposition than the French engineers are required to. While the 
 local administrative officers are called upon for their opinions sep- 
 arately. 
 
 Local Administrative Organization} 
 
 The local administration is made up as follows: Under the 
 government as now organized, the valley of the Po is embraced 
 within the departments of Piedmont, Lombardy, Venetia, and 
 Emilia; and they comprise twenty-eight provinces. These prov- 
 inces are the real administrative units, each being presided over 
 by a prefect, as in the case of the departments of France. The 
 provinces are divided into communes, and each commune is pre- 
 sided over by a chief magistrate called a syndic. The prefects 
 and 'the syndics are appointed by the king, and there are provin- 
 cial councils and communal councils associated with these officers 
 respectively, as in the case of the French departmental administra- 
 tive system. But unlike the French organization, the communal 
 unit has direct communication with the central government, and 
 is really the important factor in the ordering of internal affairs. 
 
 In general terms, therefore, we find the prefects of the provinces 
 and the syndics of the communes charged with the administration 
 of the affairs of the water-courses locally, in so far as the policing of 
 the stream and the enforcing of regulations are concerned, but the 
 engineers and the ministry of public works regulate, the construc- 
 tion and maintenance of works in the streams and the diversion 
 of water from them. This, of course, relates more especially to 
 the streams of the public domain. But it is to be remembered 
 that in Italy all streams of any importance as irrigation feeders 
 are public, and that, except on insignificant water-courses, or 
 
 1 Bncyclop, Brit., Vol. XIII, " Italv," pp. 448-464; see, also, De Buffon, Vol. II, 
 and Smith, Vol. II. ' 
 
ADMINISTRATION OF WATERS. 223 
 
 ihose remote from the centers of irrigation, or in mountain val- 
 leys, there are no claims of right to the waters or to the channel 
 beds, founded on riparian proprietorship. 
 
 There are, however, some streams controlled altogether by asso- 
 ciations of landholders or canal and water-right owners, and over 
 which the government has only a supervisory duty based on the 
 ground of police power. But these rights are founded on ancient 
 special grants of proprietorship in the waters and channels them- 
 selves, and not on the ownership of the bank lands. 
 
 With respect to administration, then, the communal and provin- 
 cial officers are the chief local executive functionaries in care of 
 the policing of streams, generally, to carry out the regulations 
 which emanate from the central government; and the engineers 
 are a distinct branch of the administration, having to do with the 
 <luestion in their separate class of duty. 
 
 Administrative River Regulation} 
 
 The regulations under which the affairs of the water-courses of 
 the valley of the Po are administered, are largely of origin in the 
 first half of the present century, and after the formation of the 
 Piedmontese and Lombardian governments of that time. The 
 principles involved are quite similar in them all, and it is only 
 necessary to give one example here, in addition to what is inci- 
 dentally said relative to this subject under other subheadings, to 
 sufficiently present the essential features of the system and the 
 .spirit in which it finds its motive. 
 
 Piedmont. — In Piedmont the water-courses and royal canals 
 were in charge of an administrative organization known as the 
 Agency of the domain, the subordinate employes of which were 
 river-guards, apparently corresponding in general duty to those 
 in France, heretofore written of. The instructions to the various 
 "Agents of the domain" filled a large octavo volume, and went 
 into great detail. Articles 357, 358, and 368 provide in effect that 
 the class of agents of the domain to whom they are particularly 
 addressed should guard the rivers and streams, watching for in- 
 fringements of the regulations concerning diversions of waters and 
 building of structures in the channels, aiding those who observed 
 the laws, and reporting those who transgressed, to the director of 
 ihe domain, and, after obtaining a warrant, proceeding to their 
 
 ' De Buffon, Vol. II; and Smith, Vol. II. 
 
224 ITALIAN IRRIGA TION LE GISLA TION. 
 
 arrest and the enforcement of the law concerning the establish- 
 ment of things in their original state. 
 
 The agents, say these instructions, ought to be continuously on 
 duty, "for water is a thing which men are prone to take without 
 due authority and to the grave injury of their neighbors and the 
 public, and stream channels easily receive serious injury from 
 thoughtless building in them." These agents are enjoined also to 
 be thoroughly acquainted with the laws and regulations touching 
 water-courses and their duty connected therewith, and to know 
 well the character and extent of rights which people have on the 
 streams within their districts. The domain receiver in each dis- 
 trict is charged with the duty of seeing that works are constructed 
 under concessions or grants in conformity to the terms thereof, 
 and that they are properly maintained according to the opinion of 
 the engineer. And he must report to the director of the domain 
 all that is worthy of attention from that officer. 
 
 Regulations for Water-Courses} 
 
 Piedmont. — The affairs of rivers and torrents of all classes in 
 Piedmont were subject to regulation under a decree, of 1817, of 
 which I present an abstract, as follows: 
 
 Navigable Rivers. — All persons were prohibited from diverting 
 waters from navigable streams, and from placing any structure in 
 a channel of any such stream, under a penalty of $2 to $30, and 
 also the obligation to remove it and restore things to their former 
 condition. Old dams, for whatever purpose used, could not be 
 changed or repaired without administrative permission and super- 
 vision, under pain of a similar penalty and obligation to restore 
 them, etc. Trees and underbrush growing along the banks could 
 not be cut, except by administrative authority and inspection, nor 
 could any clearance be made for cultivation within a distance of 
 about 350 feet from each bank, without due authorization after 
 inspection, under pain of a penalty of $2 to $20. 
 
 Owners of alluvial lands along rivers or torrents had to keep 
 their cultivations at the prescribed distances therefrom, or coming 
 within those distances had to have a j)ermit for such action, from 
 the intendant of the province, guided by the advice of the commu- 
 nal council, and of the provincial engineer. Penalty for infringe- 
 
 ' 8ee, De Button, Vol. II, pp. 314-319. 
 
ADMINISTRATION OF WATERS. 225 
 
 nient, $6 to $40; together with destruction of the plantation. The 
 digging of wells or opening of springs within certain distances of 
 the banks of streams was prohibited; penalty, $20 to $60. Own- 
 ers of bank property were, under regulations and by permits, 
 allowed to protect the banks from washing; but revetments of 
 masonry, brushwork, or other protecting constructions, might in no 
 case project into the channels, except as these might be planned 
 and executed under the supervision of the provincial engineer. 
 
 The intendant of the province, on the advice of the engineer, 
 had immediate direction of these matters, and there was an appeal 
 from him to the direction-general, which acted on the advice of 
 the central commission of engineers. 
 
 Non-Navigable Streams. — All persons were prohibited from di- 
 verting waters from or placing any structure in the channel of any 
 non-navigable stream, ranked as a stream of public utility or im- 
 portance. For permission to divert water from such stream, or 
 erect any work in its channel for the purpose of using its water or 
 protecting its banks, application had to be made to the intendant 
 of the province. The intendant directed an examination to be 
 made by the engineer, as a preliminary to all permits, and inter- 
 ested parties were notified to meet the engineer on the ground, and 
 make any desired representation to him about the project. The 
 only difference between the treatment of cases on these streams 
 and those on navigable ones was in the form of proceedings and 
 permits. 
 
 The free flow and open channel of small streams had to be pre- 
 served. Bank owners might, on due authority, construct works to 
 protect the banks, but, if calculated to arrest the currents, or de- 
 flect them injuriously against either bank, they were removed. 
 The management of the details of the affairs of such streams was 
 intrusted to syndical associations of proprietors interested. A pro- 
 vision inserted in all grants of right to water, or right to construct 
 works in a stream, was that the proprietors should constantly keep 
 the weirs of the dams open, to leave ample space for the passage of 
 flood waters. For offenses against these regulations concerning 
 non-navigable streams, similar penalties were imposed to those 
 specified for like infringements of the rules applicable to navigable 
 rivers. 
 
 Old dams arid structures for diversion of the water, or for ap- 
 15^ 
 
226 ITALIAN IRRIGA TION LEG/SLA TION. 
 
 plying it in use, in any way, might not be changed in form, 
 dimensions, or elevation, without due permission issued after ex- 
 amination. The channels of these streams might be kept clear to a 
 standard width, fixed for each stream in each commune, at the 
 expense of and by the riparian proprietors, under direction of the 
 provincial engineers. The banks of these water-courses might be 
 cultivated, but neither roots nor branches might encroach on the 
 bed of the stream. Islets could not be cultivated or cleared, ex- 
 cept by the permission of the intendant of the province. When 
 such water-courses had low banks, subject to overflow, the riparian 
 proprietors were under obligations to keep the channels clear of 
 deposits down to the normal elevation for the bed. Consumers of 
 water, or users of it for power purposes, were called on for a share 
 of these expenses for such maintenance of channels. 
 
 General River Regulations. 
 
 Lombardy. — The following general regulations for water-courses 
 for the province of Mantua, made while wholly under Austrian 
 dominion, and continued while a part of the Lombardian king- 
 dom, will convey a good idea of the general poUcy and extent of 
 power in this respect exercised by that government: 
 
 River Regulations for the Province of Mantua. 
 
 "Article 1. The damming up, directly or indirectly, of water- 
 courses of any class or kind, or the alteration of any escapes, weirs, 
 or channels, in such manner as that the water may be turned to 
 the use of the offending party, or to the injury of others, is pro- 
 hibited under a penalty for each offense of 2,000 lire (about $400), 
 of which, half shall be granted to the informer. Failing payment 
 of the fine, the offender shall be sentenced to imprisonment with 
 hard labor for one year. 
 
 "Article 2. The chief sources of injury to the banks, and of 
 obstruction to the free course of the waters, are trees, underwood, 
 or bushes of any kind. It is forbidden to plant these on the banks 
 of the public canals and rivers, and such as exist shall be cleared 
 away within twenty days from the pubUcation of this edict. After 
 this time the wood shall be cut down by the pubhc officers, and 
 sold for the general benefit of the associations of the rivers and 
 canals. 
 
 "Article 3. The lines of piles placed in the channels to facih- 
 tate fishing cause serious damage. These shall all be removed and 
 sold for the general benefit; and, in future, whoever replaces such 
 works shall be subject to a fine of 100 lire (about $20), whereof 
 one half shall be granted to the informer. 
 
ADMINISTRATION OF WATERS. 227 
 
 " Article 4. The proprietors of mills and their work-people are 
 forbidden to raise the water, by any means whatever, above the 
 levels either already fixed, or to be fixed hereafter. During floods, 
 they shall be careful to open the escapes, so as to prevent damage. 
 Each offense against this rule shall subject the offender to a fine 
 oiWdlin (about $40). 
 
 " Article 5. All proprietors of ditches shall be bound to main- 
 tain them in thorough repair, so that no water may escape from 
 them into the public roads, or in any way cause damage to other 
 parties, under a penalty for each ofi'ense of 200 lire, in addition to 
 payment of all expense for injuries done. 
 
 " Article 6. All employers of water shall obtain the quantities 
 defined and fixed by their titles and grants. Forfeiture of all 
 right to water shall follow the illegitimate alteration or extension 
 of the prescribed areas of irrigation. 
 
 " Article 7. Like forfeiture shall be the consequence of any im- 
 proper interference with any of the various kinds of works on the 
 canals. When a change in these is desired application shall be 
 made to the magistracy of water for the province, who will order 
 the proper steps to be taken. 
 
 " Article 8. Employers of water who have irrigated the areas 
 assigned to them, shall be bound to allow the surplus waters to 
 flow off freely for the benefit of lower lying lands. To this end 
 every proprietor shall be bound to establish drainage channels for 
 the collection of the surplus waters; and neglect in doing so shall 
 entail forfeiture of all right to water from the respective canals. 
 
 "Article 9. [Orders that periodical inspections of the canals be 
 made by the prefect or vice-prefect of the province, so as to insure 
 observance of the provisions of the edict.] 
 
 ''Article 10. It being a common but mischievous practice for 
 parties to carry water to lands so placed that the surplus waters 
 are entirely lost, it is ordered that every landed proprietor shall 
 cause to be made, at his own expense, a map of his property, on 
 which the irrigable land shall be shown in its true dimensions, 
 and with its heights above the sources of supply of water clearly 
 exhibited; also, all the water-courses, culverts, roads, or principal 
 canals, aqueducts, weirs, locks, and every other kind of works, 
 shall be plainly shown. This map shall be preserved as a record 
 in the office of the magistracy of waters, and shall be corrected 
 from time to time, as changes are duly sanctioned by the proper 
 authorities. Neglect of the present order shall be punished by 
 loss of rights to the water. 
 
 "Article 11. No changes of any kind shall be effected but 
 Tinder the orders of the magistracy, executed by the prefect or 
 vice-prefect. 
 
 "Article 12. The conservators of the different irrigating associ- 
 ations are enjoined to watch over the efficiency of the works under 
 their charge. They shall make an annual inspection, and sub- 
 mit a report on the works to the congregations of their respective 
 
228 ITA LTAN IRRIGA TION LEGJSLA TION. 
 
 associations, indicating all the repairs or new structures required, 
 and estimating the probable expense thereof. The visits shall be 
 made during the first days of the month of February, and the 
 congregation shall be held about the middle of the ss^me month. 
 ' By which means all needful repairs may be completed about the 
 middle of April, when the demand for water arises. 
 
 "Article 13. The conservators shall be careful'to clear the canal 
 beds of all water plants and weeds, causing them to be dug out by 
 the roots for some distance from the water's edge, throwing the 
 refuse clear of the embankment. If necessary, clearances of this 
 class shall be executed three times a year. 
 
 "Article 14. All parties are enjoined to receive, and execute 
 with promptitude and good will, the orders of the conservators of 
 the different associations. Disobedience shall be punished by a 
 fine for each offense of 200 lire (about $40), which shall be in- 
 creased at the discretion of the magistracy; if any offense be com- 
 mitted a second time by the same party, it shall be lawful to 
 proceed against him under the provisions of the municipal laws. 
 
 "Article 15. The annual tax shall be paid by all parties within 
 the time prescribed by the congregations, and defaulters shall be 
 proceeded against without further notice. 
 
 "Article 16. Parties not possessing legal rights to irrigation 
 shall not use, even to the smallest extent, the waters of the canals. 
 The first offense against this rule shall be punished by a fine of 
 1,000 lire (about $200), with forfeiture of all the irrigated produce, 
 and compensation to parties injured by the misappropriation of 
 the waters. The second offense shall be punished by the confis- 
 cation of the land illegitimately irrigated. 
 
 "Article 17. We reserve to ourselves the right to make grants 
 of water for irrigation; and we hereby declare, that if it should 
 come to our knowledge that arable or forest or meadow lands have 
 been broken up for the purpose of creating rice fields, in excess of 
 those fixed by considerations of public police, and duly limited 
 thereby, the grants thus abused shall be revoked; and we give 
 notice that we will not in future allow any new rice cultivation 
 to be established, until it has been proved to our entire satisfac- 
 tion that the lands to be so employed are all in such low lying 
 localities as to be unfitted for use under any less injurious kind of 
 cultivation. 
 
 "Article 18. In making grants, we do not thereby vest in the 
 grantee the right of property in the water, but only the right to 
 use it either in irrigation or for hydraulic works. " The right of 
 property shall remain as heretofore among the rights appertain- 
 ing to the crown. 
 
 "Article 19. In all grants for the use of water whencesoever 
 derived, from colature^ or from works, we maintain in full force 
 
 ^ Colahire: drainage water.? from irrigations. 
 
ADMINISTRATION OF WATERS. 229 
 
 the provisions, of existing agreements, in consideration of the 
 benefits hitherto derived from their observance. 
 
 ********** 
 
 "Article 26. To insure the reform of abusesy,and to protect the 
 interests of the royal treasury, all employers 'of water shall be 
 bound to submit their titles, after due notice, to a deputation of 
 officers, which from time to time shall visit the canals, with full 
 authority to investigate and dispose of all cases brought before 
 them, according to their judgment. 
 
 "Article 27. The guards and police shall use all diligence in 
 protecting the interests intrusted to them, and shall denounce all 
 contraventions to the secretary of the magistracy of waters. In 
 cases of neglect, the offending party shall be declared incapable 
 of again serving the state; but if collusion or participation be 
 established, he shall be .sentenced to imprisonment with hard 
 labor for a period not exceeding three years, according to the 
 decision of the magisterial chamber. 
 
 "Article 28. The magisterial chamber shall determine all fur- 
 ther pro\asions necessary to the execution of our laws, and shall 
 decide on all matters connected with the waters of the province." 
 —[Smith, Vol. II, p. 208, ei seq. 
 
 Construction of River Works) 
 
 The Kingdom of Italy. — The general law concerning public 
 works declares that a prerogative of government is the supreme 
 direction of all matters pertaining to the management of public 
 waters, rivers, torrents, lakes, streams, canals, and natural drain- 
 age ways, and, at least, the inspection and supervision of works 
 in and relating to such waters or water-ways. These works are 
 divided into four classes, according to the interests involved: 1, 
 those executed and maintained exclusively at general govern- 
 ment expense; 2, those built and maintained by the government 
 with the cooperation of one or more provinces in each instance ; 3, 
 those carried out and kept up at the expense of interested associa- 
 tions of landholders; 4, those, by riparian proprietors acting as 
 individuals or in associations. The administrative authorities of 
 the general government have immediate supervision of construc- 
 tion and maintenance of works of the first two classes, while the 
 provincial authorities have direct control of those of the last two 
 classes, and the general government exercises its right of final 
 supervision and inspection of them. 
 - : The works of- the first class — whose cost and expense is borne 
 
 / General Law on Public Works, Title III, Chapter I, March, 1865. 
 
230 ITALIAN IRRIGA TION LEGISLA TION. 
 
 exclusively by the general government — are those which are solely 
 for the improvement of navigation and preservation of the beds, 
 alignments, and banks of rivers, streams, and large canals con- 
 nected with the general navigation system, and those of and con- 
 nected with the artificial canals, of irrigation as well as navigation, 
 belonging to the state, and not otherwise disposed of by special 
 agreements. 
 
 The works of the second class— wh(»e cost and expense is borne 
 by the government, with the provinces, individuals, and associa- 
 tions interested — are levees and accessory works along embanked 
 rivers and tributaries,^ feom the point where the waters commence 
 to run between embankments, and wherever the works are of 
 great public importance, also, embankments, channel rectifica- 
 tions, and other works made for the purpose of regulating such 
 rivers, as well as those of canals of navigation that interest more 
 than one province but are still not connected with the general 
 governmental system of water-ways. 
 
 The expense for works of this class is divided as follows: " De- 
 ducting the net patrimonial rent of the associations, one half of 
 the remainder is charged to the state, and the other half is divided 
 equally between the province or provinces interested and the asso- 
 ciated and individual land owners." " In these costs are included 
 the expenses of inspection of works and guarding of banks." 
 
 Works of the third class — paid for by associated and individ- 
 ual land owners interested — are, defending and maintaining the 
 banks, channels, and good regime of rivers which are not leveed 
 and even though navigable, the maintenance and improvement of 
 stream and torrent beds, generally, where the action of the waters 
 threaten wide scopes of country with damage, and the embanking 
 of small streams for limited distances for local benefit of inter- 
 ested parties. 
 
 The general government contributes towards works of this class 
 under the care of associations of landholders, when they are of 
 importance to navigation or have an influence upon the security 
 of government works; but the quota contributed by the state to- 
 wards such works cannot be more than a quarter of the total cost, 
 and is fixed in proportion to the importance of the interests in- 
 volved. The provinces are, sometimes also, called upon for con- 
 tributions to such works in proportion to their degree of importance 
 to the lands of their territory. 
 
 Works of the fourth class — those exclusively at the cost of 
 
ADMINISTRATION OF WATERS. 231 
 
 riparian proprietors, saving that these have the right to compel 
 other interested parties according to the civil law — are the em- 
 bankments of tracts outside of the river main-embankments, and 
 the embankments on and repairs to tlie banks of rivers and tor- 
 rents which serve to defend one or a few properties only. The 
 minor courses of public waters, distinct from rivers, torrents, and 
 streams, acting as great public drainage ways, are maintained at 
 the cost of the riparian proprietors whose lands front the chan- 
 nels, and by the proprietors whose lands they drain, and by the 
 possessors or users of their waters. For such maintenance and 
 to regulate their regime, associations of the above named parties 
 interested may be organized in accordance with established pro- 
 visions of law. 
 
 Whenever works of the above classes are of public importance, 
 the government by law orders them carried out, and the expense 
 is borne on public, provincial, district, or private account, accord- 
 ing to their class. Thus the principle of compulsory action in 
 hydraulic works, so essential to systemization and necessary to 
 success, is quite fully recognized in this law. 
 
 Policing of Public Waters} 
 
 The Kingdom of Italy. — The general law on public works de- 
 clares that no one may make works in the beds of rivers, torrents, 
 streams, public drainage ways, and canals of the public domain — 
 that is, in the space between the stable banks of the channels — 
 without a permit from the administrative authority; and in case 
 of the bed having a shifting bank, the proper line for the perma- 
 nent bank will be fixed by the prefect after all interested parties 
 have been heard. The branches of such water-courses are subject 
 to these rules although at certain times of the year they may re- 
 main dry. 
 
 The right of riparian proprietors to protect their banks is subor- 
 dinated to the conditions that the works or plantations for the 
 purpose do not interfere with the free flow of the waters, neither 
 endanger nor damage the properties of others, public or private, the 
 navigation, the diversions, nor works of any kind legitimately 
 established, and prefects are charged with the duty of exacting 
 security for these conditions. 
 
 Certain works and acts are absolutely prohibited upon public 
 
 General Law on Public Works, Title III, Chapter VII, March, 1865. 
 
232 ITALIAN IRRIGATION LEGISLATION. 
 
 waters, their beds, shores, and defenses, as follows: (a), the form- 
 ation of fishery inclosures which may interfere with the flow of 
 the stream; (b), planting of trees within the water-way or so as to 
 diminisli the normal water-way, or necessary even flow of the 
 waters; (c), the extracting or burning of stumps that sustain the 
 banks of torrents, at a distance less than nine metres from the 
 ordinary water line ; the extraction or burning of stumps that sus- 
 tain the banks of rivers, streams, and canals; (d), the establishing 
 of plantations on alluvial deposits on a river shore at a less distance 
 from the opposite bank than the official width of the water-way 
 as determined by the prefect after hearing all interested parties, 
 and after receiving a report from the provincial engineer; (e), the 
 planting of trees or shrubs upon levees or banks of streams, rivers, 
 torrents, or navigable canals; (f), digging, plowing, or excavat- 
 ing within certain prescribed distances of levees, banks, and lines 
 of overflow; (g), all acts tending to alter the condition, form, di- 
 mensions, resistance, and convenient use of embankments or levees 
 and their accessories; (h), the variation or alteration of stream 
 banks or interference with works for their protection; (i), the pas- 
 turage or permanent keeping of cattle, sheep, or other grazing 
 animals on the levees or their accessories, and the "banks and slopes 
 of public canals; (k), the opening of excavations, for whatever 
 purpose, at distances from the banks of rivers, torrents; etc., less 
 than those laid down in regulations or local usages, or than pro- 
 vincial administrative authority recognizes to be necessary to avoid 
 the danger of diversion or of wrongful drawing out of waters; (1), 
 the construction of any and all works in the bed, on the banks, or 
 upon tow-paths of streams or canals which might prejudice the 
 freedom or the security of the navigation, the operation of floating 
 docks or of ferryboats, or the floating of timber and rafts. 
 
 Certain other acts or works are allowed, upon permits to be 
 obtained from the prefects, and under conditions to be imposed 
 by them, as follows: (a), location of permanent anchorages to 
 facilitate the operation of floating docks, ferryboats, etc.; (b), the 
 construction of spur dykes to protect embankments and shores; 
 (c), the plowing up of woody or bushy land within 100 metres of 
 the ordinary water line; (d), the formation of plantations or allu- 
 vial deposits in river beds beyond the line of normal width; (e), 
 the formation of levee crossings for roadways; (f), the conversion 
 of temporary wingdams for diversion of public waters, into per- 
 manent ones, etc.; (g), changing the usual position, structure, and 
 
ADMINISTRATION OF WATERS. 233 
 
 dimensions of wingdams of diversion in streams not considered 
 permanent; (h), excavation in the gravel and sand beds of rivers, 
 torrents, etc., to lead waters to canals; (i), changing the form and 
 position of stable wingdams of diversion on streams; (k), recon- 
 struction of headworks of canals, bridges, and similar existing 
 structures in beds of streams, torrents, rivers, and canals, belong- 
 ing to the domain;' (1), changing position of floating mills; (m), 
 hauling out gravel, sand, etc., from beds of rivers, torrents, streams, 
 and public canals, at points other than those where practice has 
 established a custom; (n), the occupation of shores of lakes, etc., 
 with permanent works. 
 
 Certain other works and acts are permitted upon authorizations 
 from the minister of public works, and under conditions by him 
 imposed, as follows: (a), the conversion of temporary and unsta- 
 ble wingdams for the derivation of waters from rivers and torrents, 
 into stable and permanent structures; (b), the variation of the 
 form and position of openings of diversion in all cases; (c), the 
 construction of works on the shores of rivers and torrents that 
 may alter or modify the condition of diversion; (d), the construc- 
 tion of new works in the beds of rivers, torrents, streams, public 
 drainage ways and canals of the state, whether wingdams or 
 other stable works for diversion of waters; (e), the construction of 
 new drainage boxes through main levees, or the removal of those 
 existing; (f), the establishing of new floating mills, in rivers, tor- 
 rents, etc. 
 
 Very heavy penalties are named for the violation of these rul- 
 ings, in the penal laws of the country. 
 
 SECTION III. 
 
 Administration of Government Canals. 
 
 The Administrative Bureau} 
 
 In Piedmont, and also in LcJmbardy, the greatest irrigation 
 works were the property of the governments, respectively. Some 
 of the great canals date from very early times; indeed, their ori- 
 gin is quite obscure, except that it is known about when they were 
 
 ' See, Smith, Vol. I, p. 120; also, De Buffon,Vol. II, pp. 218-220; Law concern- 
 ing Public Works, 1865. 
 
234 IT A LI AN I R RIG A TION LEG I SLA TION. 
 
 built. These works were maintained under the supervision of gov- 
 ernment engineers, but, as a general thing, their revenues were 
 farmed out in bulk to some contractor or association, who received 
 the waters at certain outlets from the main distributaries, in large 
 volumes, undertook to distribute them to the consumers, collect 
 the revenues, and pay the government certain fixed sums annually 
 for the privileges. This financial system was open to and resulted 
 in great abuses, but with that phase of the question we are not 
 here concerned. 
 
 There were also on these canals certain old water-rights, con- 
 ceded by former governments to consumers or speculators, for some 
 consideration or service rendered in years or centuries long gone by. 
 Some of these rights were free from rate pajdng, while others were 
 subject to an annual payment, generally at low rates. But, how- 
 ever waters were distributed, or under whatever right of use or 
 rate of payment, the works were the special charge of government 
 civil engineers, and their maintenance, extension, and remodeling 
 contributed to develop a service of unprecedented skill in hydrauUc 
 construction and science. 
 
 Piedmont.-— h\ the preceding section of this chapter I have spo- 
 ken of the care and regulation of public streams in Piedmont 
 through the services of the agents of the pubUc domain. It now 
 remains to speak of the management of the public canals. These 
 are in reality great artificial public streams from which private 
 canals draw, and considerable populations are supplied. Their 
 maintenance and general management was committed to the care 
 of the ministry of finance, as a separate trust from that of public 
 works generally, which were in charge of a minister of public 
 works. The fact that the canals were a property yielding a reve- 
 nue to the state in which the finance was more interested than any 
 other bureau, is advanced as the reason for this arrangement. 
 
 Attached to this ministry of finance was an office of works,, 
 which was the executive agency in charge of construction and 
 maintenance of the canals. The general management of the de- 
 partment was intrusted to the intendant-general of finance, the 
 chief executive ofiacer under the minister himself, but the -permn- 
 nel of the service was almost exclusively made up of civil engineers,, 
 of whom there were about twenty, together with their assistants 
 and subaltern helpers. The duties of this corps were connected 
 entirely with the professional and practical labor of construction. 
 
GOVERNMENT CANAL ADMINISTRATION. 235 
 
 maintenance, and operation of the works. The financial manage- 
 ment and care of distribution of the waters were under the control 
 of the contractor or farmer of the canal revenues, who ordinarily- 
 leased the waters in bulk for a period of nine years, and then 
 sublet the water privileges. Thus, there was an entire separation 
 between the executive management of the canal works and the 
 business management of the operations of distribution. 
 
 Under the engineers and their assistants there was a subordi- 
 nate organization of guards, or superintendents and overseers, com- 
 posed of one chief and thirty-five ordinary guards, whose duty it 
 was to take local charge of the works. These were generally men 
 of experience in the management of canal works, and they lived 
 in houses, built for the purpose, close alongside of their sections of 
 duty. To them were intrusted the keys of the distributing gates 
 from the main canals, and hence they were persons of considera- 
 ble importance, and not infrequently became skilled as practical 
 hydraulicians. 
 
 Articles 359 to 367 of the "Instructions to agents of the do- 
 main," spoken of in the last section, contain provisions regulating 
 the financial relations between this establishment and" the lessees 
 of the waters of the canals. Articles 680 and 631 provide for the 
 duties of the engineers in connection with the maintenance of 
 main outlets for distribution, the expense of which was to be borne 
 by the lessees of the waters in each instance. Other articles pre- 
 scribed in great detail the duties of the " agents " and of the " en- 
 gineers " who were the officers of the two lines of administrative 
 operatives under the intendant-general of finance. Of these du- 
 ties, it is noteworthy that each agent and each engineer was 
 required to keep a daily journal in detail of all his official actions 
 and observations, according to a prescribed form, and to return 
 such journal in duplicate with a summarized statement in the 
 form of a report, also in duplicate, to the intendant, monthly, who 
 retained one copy and transmitted the other to the intendanl-gen- 
 eral, together with his observations. In addition to this, quarterly 
 financial reports were required from all officers or agents in charge 
 of works, and professional reports on the condition of works, from 
 the engineers, also every three months. 
 
 The state, through the medium of this establishment, adminis- 
 tered, maintained, and operated the canals, giving out the waters 
 to the branch distributaries whence they were sub-divided, and 
 the rents collected by the employes of the farfiier of the revenues, 
 
236 ITALIAN IRRIGA TION LEGISLA TION. 
 
 as elsewhere spoken of. This system of farming the revenues to 
 an individual, or individuals, was done away with in 1854, when 
 all the waters thitherto thus disposed of were leased to the "Asso- 
 ciation of irrigation west of the Sesia," as is explained in a subse- 
 quent chapter; and the system of maintenance and operation of 
 the works by government employes was also done away with by 
 the leasing of the canals themselves to the Cavour canal company, 
 in 1862, also spoken of in detail hereinafter; and, finally, the man- 
 agement of the works, again by the general government of Italy, 
 upon the failure of the Cavour canal company, remains to be men- 
 tioned. 
 
 Government Canal Regulations. 
 
 Piedmont. — Returning to the times of Piedmontese administra- 
 tion of the royal canals in the upper part of the valley of the Po, 
 to carry forward the subject in a complete manner, I transcribe 
 the following draught of " Regulations for the administration of 
 the royal canals of irrigation," under which the works were man- 
 aged until turned over to the Cavour canal company, and which 
 constitute one of a number of regulations incorporated into the 
 " Instructions to the agents of the domain," heretofore mentioned. 
 
 Regulation for the Administration of the Royal Canals of Irrigation. 
 
 Of the maintenance of canals: 
 
 "Article 1. All the royal canals of the kingdom are subjected 
 to the present regulation. 
 
 " 2. The general control of the royal canals is vested in the 
 agency-general of finance, the executive duty being performed by 
 engineers and guards appointed by it. 
 
 " The latter, with the guards appointed by the farmer of the 
 canal revenues, shall take an oath of fidelity in the presence of 
 the judges of their respective districts. 
 
 " 3. The engineers and guards are charged to prevent all inter- 
 ference with the waters, works, and employers of the canals. 
 
 " 4. The articles of the regulation of the twenty-ninth of May, 
 1817, are maintained in full force. 
 
 " 5. No one unprovided with a legal grant or right can make 
 any use whatever of the canals; and any interference with the free 
 course of the waters in the main channel or branches thereof is for- 
 bidden. Violations of any part of this article shall be punished 
 by a fine of from 50 to 150 lire (from $10 to $80) for each offense, 
 in addition to compensation for damages. 
 
 " 6. Parties having a legal grant of water, but taking more 
 than the quantity they are entitled to, or using at a diflerent hour 
 from that specified- in the agreement among the employers of a 
 
GOVERNMENT CANAL ADMINISTRATION. 237 
 
 common channel, or violating in any other way the terms of their 
 grants or agreements, shall be subject to a fine of from 50 to 100 
 lire ($10 to $20) for each offense, in addition to compensation for 
 damages. 
 
 " 7. Whoever shall raise or lower the gates of the outlets or 
 escapes, alter, break, or deface the chambers of the works of 
 measurement, force the locks of the same, or change their dimen- 
 sions, shall incur a fine of from 150 to 300 lire ($30 to $60), in 
 addition to the amount payable for damages. When the offense 
 is perpetrated on crown property, the pecuniary fine shall be ac- 
 companied by imprisonment for a period varying from one to six 
 months. 
 
 " 8. Employers of the canals shall maintain their irrigation 
 outlets and channels in forms prescribed by their grants, under a 
 penalty of from 50 to 100 lire. 
 
 " 9. The water fiowing from irrigated lands, commonly called 
 coli (colatura), shall be permitted to enter the canals freely, ex- 
 cept when special agreements to the contrary have been entered 
 into, under a penalty of from 50 to 100 lire, in addition to the 
 price of the waters intercepted. 
 
 " 10. It is forbidden to fish in the canals, or to, excavate sand 
 from them, or to use boats on them at any time, under a penalty 
 of from 10 to 30 lire. 
 
 "11. The agency-general of finance may permit fishing, navi- 
 gation, or excavation of sand, having first procured the opinions 
 of the engineer and the director of the domain. Such permission 
 ought to indicate clearly the portion of the canal to which it ap- 
 plies. It can be granted only for a period of not longer than one 
 year, and is null and void unless registered by the grantee at the 
 office of the direction of the domain, and of the local secretariat 
 of the province. 
 
 " 12. It is forbidden to establish, without the authority of the 
 agency, bridges, fords, or ferries, and, also, to cross the canals, 
 either on foot or with cattle, under a penalty of 10 lire, in addition 
 to the expense of destroying works executed in contravention of 
 this article. 
 
 " 13. [Repeats the above with respect to minor works.] 
 
 " 14. Whoever takes possession of land along the canals which 
 belongs to the royal domain, removes the landmarks, makes ex- 
 cavations, carries away the produce of the plantations, or traverses 
 the banks with cattle, carts, or conveyances of any kind, shall 
 incur a fine of from 5 to 10 lire for each offense, in addition to the 
 repair of any damages which may be caused, or to the cost of the 
 things carried away. 
 
 " 15. The possessors of land fronting or adjacent to the canals 
 are forbidden to open new springs, to excavate ditches, to form 
 ponds, water-courses, or channels of any kind, within a distance 
 of 200 metres (nearly 220 yards) from the said canals, except in 
 such cases as may be specially decided upon by the engineers. 
 
238 ITALIAN IRRIGA TION LE GISLA TION. 
 
 who will then fix such distances as may seem to them sufficient 
 to prevent any leakage of the waters of the canals into the works 
 referred to. 
 
 " It is also forbidden to the aforesaid possessors of land to plant 
 trees within a distance of 3 metres from the boundaries of the 
 canals. Infringements of this article shall be punished by a fine 
 of 10 lire. 
 
 " 16. It is forbidden to cut the trees on the canal banks, or to 
 carry away the prunings of the same, under penalty of a fine 
 equal to double the value of the trees or prunings. If the trees 
 cut and carried away shall exceed the value of 25 lire (about $5), 
 the offender shall be imprisoned for not less than one month, in 
 addition to paying the fine as above. 
 
 " 17. Parties acquiring by legitimate titles any right to the 
 plantations along the canals, shall not be allowed to cut or prune 
 them except at the times and to the extent specified by the en- 
 gineers in charge. 
 
 " 18. All parties are forbidden to pasture cattle on the banks 
 of the canals at any period of the year, under a penalty of from 1 
 to 3 lire for each animal."— [Smith, Vol. II, pp. 307-810. 
 
 Lombard]). — In Lombardy the organization and regulations af- 
 fecting the government canals was substantially the same as in 
 Piedmont, so that there would be nothing added to the useful 
 data of this report by introducing here anything specially relat- 
 ing to this branch of our subject for that country. 
 
 The Kingdom of Italy. — Upon the unification of the Italian gov- 
 ernment, all the public canals of Lombardy and Piedmont, not 
 leased to the Cavour canal company, were given over to the charge 
 of the ministrj' of public works for all Italy. 
 
 Something will be seen of the management of a portion of these 
 in a subsequent part of this report, and as it is substantially that 
 followed by the Piedmontese government, with the exception of 
 the different and broader organization of its administrative depart- 
 ment, it is unnecessary to refer in detail to it here. 
 
 The ministry of public works, with its bureau of civil engineer- 
 ing, constructs, maintains, and operates the canals; the ministry 
 of finance leases and otherwise economically manages the disposal 
 of the waters; and the ministry of agriculture, industry, and com- 
 merce encourages and otherwise deals with irrigation and cultiva- 
 tion thereby. 
 
GOVERNMENT CANAL ADMINISTRATION. 239 
 
 AUTHORITIES FOR CHAPTER X. 
 
 Se BM#bn.— [Work cited as an authority for Chapter IX.l See, Vol. II, B. VII, 
 Ch. 39, Divs. I and II ; Ch. 40, Div. I ; Ch. 41, Div. I ; B. VIII, Ch. 45, 
 Div. I ; and elsewhere as cited. 
 
 Smith. — [Work cited as an authority for Chapter IX.] See, Vol. II, P. VI, Ch. 
 I, Sees. I and V ; Ch. II, Sees. I and V ; and elsewhere as cited. 
 
 Sardinian Code. — "The Civil Code of the Kingdom of Sardinia." Edited and 
 annotated by A. Boron, Advocate, etc., 2d ed. (Italian). Turin, 1857. 
 
 Italian Code. — "The Civil Code of the Kingdom of Italy." Edited, annotated, 
 and compared with its predecessors, by Domenicantonio Galdi, Advo- 
 cate, etc. (Italian); royal 8vo., pp. 1,400; Naples, 18B5. 
 
 Ency. Brit. — Encyclopajdia Britannica. Ninth Edition. Article "Italy." 
 
 Letters, etc. — Letters from the late Hon. Geo. P. Marsh, U. S. Minister to Italy; 
 dated at Rome and Florence in 1882, and addressed to the writer hereof, 
 in answer to letters of inquiry on the subjects of this report. 
 
 -tows, etc. — The General Law of Italy concerning Public Works, passed March 
 24, 1885; and the substitution for Chapter V of Title III of the above, 
 entitled Law concerning the Diversion of Public Waters, passed August 
 10, 1884 ( Italian). Received from Hon. A. Peiroleri, Minister of Puilic 
 Works, Italy, through the courtesy of Hon. Baron Fava, Italian Minis- 
 ter, and Sig. Cav. de Foresta, Charge d' Affaire, Washington, D. C. 
 
240 ITALIAN IRRIGA TION LEGISLA TION. 
 
 OHAPTEE XI.-ITALY""; 
 
 EE&ULATION 01 lEEIGATION PEAOTIOE. 
 
 Section I. — JDistribution and Measurement of Waters. 
 Hydraulic Science and Practice. 
 The Problems of Distribution and Measurement. 
 The Piedmontese Legislation — Sardinian Code. 
 Remarks on the Sardinian and Italian Codes. 
 Distribution by Volume, by Use, and by Time. 
 
 Section II.— The Rights of Irrigators: 
 
 To a Continuance of Water Supply ; 
 
 *rhe Right in Piedmont. 
 
 The Right in Lombardy. 
 To the Use of Spare "Waters ; 
 
 The Sardinian Code. 
 
 The Italian Code. 
 
 Section III. — Obligations and Rights of Irrigators and Canal Men. 
 Obligations Concerning Water Supply and Use. 
 Piedmont, Lombardy; all Italy. 
 Priority of Privilege in Distribution. 
 Piedmont; all Italy. 
 
 SECTION I. 
 Measurement and DisTRiBrTiox of Waters. 
 
 Hydraulic Science and Practice. 
 
 Until within very recent years, when there has been much ac- 
 tivity and emulation in the perfecting of means and methods for 
 the economical and exact measurement and distribution of waters 
 in irrigation in Prance, in British India, and also on some special 
 works in Spain, the works and regulations designed for the attain- 
 ment of these ends in northern Italy have stood alone as evidences 
 of an attempt at the systematic application of scientific principles 
 to the details of an extended and complex practice of the art of 
 conducting and measuring water in open channels for irrigation. 
 
DISTRIBUTION AND MEASUREMENT. 241 
 
 Commencing in the centuries that have passed, hydraulic science 
 developed with the advance of irrigation and drainage practice in 
 Italy. For a long time this was its repository; and out from this 
 country it subsequently spread. 
 
 " With the revival of knowledge in Italy, the art of hydraulic 
 engineering was called into existence, and the extensive demand 
 for skill in its details created early a supply of men familiar with 
 all of these. Hence the remarkable number and great talent of 
 the executive engineers, by whose exertions, rewarded and stimu- 
 lated by their wealthy and powerful employers, that vast network 
 of irrigation channels was spread over the entire surface of the 
 country."— [Smith, Vol. II, p. 135. 
 
 The physical, social, and political conditions of northern Italy 
 alike contributed to the growth of this science: the difficulty of 
 tapping the chief sources of water supply, except by means of 
 great works, requiring skill and technical knowledge to plan and 
 construct; the necessity, produced by climatic and hydrographic 
 circumstances, for making these works most substantial, and, con- 
 sequently, costly; the complexity of the natural water supply sys- 
 tem, and the confusion as to water claims which had grown up; 
 the absence of system in the earlier works and projects; the con- 
 sequent extreme complexity of works; the great value of water in 
 irrigation ; the wide destruction of property occasioned by waters 
 of floods; the alarming unsanitary results of unskillful irrigation, 
 insufficient drainage, and injudicious embanking of lands; and 
 the natural outgrowth of confusion and litigation which resulted, 
 made the necessity for men in command at once of scientific 
 knowledge and practical skill in hydraulic work. In following 
 out the systemization of irrigation works and practice in that 
 country, not only have the main works for the diversion and con- 
 ducting of waters been in charge of those trained and edacated to 
 the task, but the practical studies and applications in the m'ost 
 minute details of distribution and measurement of waters have 
 been equally committed to the care of specialists. 
 
 " Under this system, it is astonishing to see the extent to which 
 minor canals have been executed. The whole surface of the coun- 
 try is covered by them as by a dense network. At all levels, and 
 by the use of various ingenious works, they pass over, or under, or 
 through each other, in such a way as to preserve individual rights 
 uninterfered with, though the result to outward appearances, is a 
 system of such marvelous complexity as to make the observer con- 
 clude it must lead to interminable disputes." — [Smith, Vol. T, p. 41. 
 16' 
 
242 ITALIAN IRRIGATION LEGISLATION. 
 
 We should, hence, expect to find, and we do find, that govern- 
 ment itself has done much towards the advancement of knowl- 
 edge and skill in this practice. In Piedmont, for instance, not 
 only was there an establishment of civil engineers in the employ 
 of the government and in charge of all public works, and having 
 supervisory duties connected with water-courses and works relat- 
 ing thereto, but the study and private practice of the profession 
 itself was the subject of state solicitude and aid. 
 
 '' The economical importance of irrigation in Piedmont has nat- 
 urally induced the government to furnish all practicable facilities 
 for its study. The education of the hydraulic engineer is con- 
 ducted with care, and no one is allowed to practice the profession 
 without having graduated regularly at the university of Turin." — 
 [Smith, Vol. I, p. 12. 
 
 That government established and continuously maintained sta- 
 tions for experimenting on and observing the flow, measurement, 
 and distribution of waters, which were attached to the educational 
 institutions, and made accessories to instruction in hydraulic sci- 
 ence, so that an education as an hydraulic engineer was, in that 
 country, eminently practical as well as theoretical .in its course 
 and results. The civil engineers were graded, according to their 
 attainments, as hydraulic engineers, civil architects, and survey- 
 ors or land measurers, and no one not specially qualified for the 
 higher rank of hydraulic engineer was permitted to practice that 
 branch of the profession. Such the men to whom were confided 
 the works of irrigation in Lombardy; such the care with which 
 men for this service were trained in Piedmont; and now the Ital- 
 ian government equally encourages the hydraulic art and science 
 by means similar, and, hence, the details of the Italian system 
 and the rules of practice and principles of law attending and gov- 
 erning that practice, are well worthy of study. 
 
 The Problems of Distrihution and Measurement. 
 
 Next in order to those great complications and contentions which 
 with irrigation enterprise are developed between governments and 
 the grantees or employers of water for irrigation, between different 
 grantees or employers, and between these and riparian proprietors, 
 come questions which grow out of the relations between those who 
 have water to distribute and those who want it to use — ^between 
 the canal owners or managers and the irrigators. Here are en- 
 
DISTRIBUTION AND MEASUREMENT. 243 
 
 countered the problems of equitable distribution and accurate 
 Tueasurement. 
 
 Water is contracted for and delivered in irrigation under three 
 general systems of reckoning: the first, delivery to irrigate any 
 certain crop or area of land for the season or for the time; the 
 second, delivery of some certain quantity, in bulk, of water; the 
 third, delivery of some certain flow of water for a certain period of 
 time. The contentions which arise and the sources of dissatisfac- 
 tion with results, to both the canal or water man and the irrigator, 
 under each of these systems, will form the subject of a chapter in 
 another part of this report, so that it is sufficient simply to call 
 attention to them here as being the moving cause of much solic- 
 itude and study in all well settled irrigation regions. Irrigators 
 generally, in the older irrigation countries, prefer the system 
 whereunder they can have measured out to them a fixed quantity 
 of water at certain periods of time, and then have the liberty to do 
 with it as they choose. The difficulty of accurate measurement, 
 under the very many and varying conditions attending the deliv- 
 ery of water, in new countries prompts and often makes necessary 
 the adoption of the other systems. 
 
 In the measurement of waters two distinct ideas are to be held 
 in view. These are: what unit of measure is to be taken; and, 
 what means of measurement are to be adopted. All civilized 
 countries have a system of weights and measures applicable in the 
 meting out of ordinary merchantable commodities and lands, but 
 few have any established system for the measurement of waters. 
 Such a system grew up in northern Italy, or rather, several such 
 systems found birth and development in the various provinces or 
 petty states of the valley of the Po. These systems were far from 
 perfect, as we may ^dew them now from the standpoints of an ad- 
 vanced hydraulic science, but they served a most useful purpose, 
 and were the starting points from which irrigation engineers have 
 sought to advance in other countries. We find the laws and regu- 
 lations of irrigation referring to certain standard measures and 
 measuring apparatus, and, in view of what has preceded, we are 
 prepared to appreciate their meaning, without going further at 
 this time into the definite interpretation of these standards to those 
 of our own country. 
 
244 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Distribution and Measurement — Piedmontese Legislation. 
 
 In Piedmont water was distributed under three systems of de- 
 livery. The first, according to the quantity stipulated in actual 
 volume; the second, according to the use, or the area to be irri- 
 gated; and the third, according to the time or season for which a 
 flow was engaged. These different methods of delivery necessi- 
 tated as many types of agreement, and each gave rise to its class 
 of questions, so that legislation was demanded by which to rule 
 in the conflicts that were brought about. And hence we find in 
 the Sardinian code the articles which here follow, and which were 
 the legislative outcome on the principal points of the experience 
 theretofore had in Piedmont. 
 
 Articles of the Sardinian Code. 
 
 "Article 641. In future when an agreement shall be entered 
 into for a constant and determined quantity of running water, 
 and the agreeing parties shall settle between themselves the form 
 of the outlet or structure of derivation, then that specific form^ 
 only shall be retained. The parties concerned shall not be per- 
 mitted to impugn its correctness on the ground either of excess 
 or deficiency of supply, unless such difference in either way shall 
 exceed one eighth of the quantity agreed upon; and the action 
 shall be instituted before the expiration of three years from the 
 time when the work was first brought into use; always excepting 
 the case in which the increase or deficiency of water may arise 
 from changes in the supplying canal itself, or in the volume of 
 the water flowing in it. 
 
 "If, in the absence of any agreement for a specific form, the 
 outlet in actual use shall have been peaceably possessed and em- 
 ployed for the space of ten years, no complaints regarding either 
 excess or deficiency of water shall be entertained, excepting in 
 the case of variations in the suppljdng canal, or in the course of 
 the water flowing therein, as above specified. 
 
 " In default of any agreement regarding the form of the outlet, 
 or of possession, the form shall be determined by the tribunals, 
 on the judgment of professional men nominated" by consent be- 
 tween the parties, or if they cannot agree, by the tribunals them- 
 selves. 
 
 "Article 642. When grants of water made for a specific service 
 or object, do not express in terms the quantity granted, they shall 
 be held to accord that volume which is necessary for the fulfill- 
 nient of the said service or use. It shall be lawful for the parties 
 interested therein to fix, at any time, the form of the outlet, and 
 so to limit it as that the grantee shall receive the volume suffi- 
 cient for the service agreed upon, but nothing more. 
 
DISTRIBUTION AND MEASUREMENT 245 
 
 " When, however, the parties shall have agreed to give a definite 
 form to the orifice of discharge or the outlet, or, in default of an 
 agreement, there shall have been a peaceable possession of such 
 form for the period above defined, objections to the same shall be 
 admitted only in the cases and within the periods established in 
 the former article! 
 
 "Article 643. In new grants of water wherein a constant quan- 
 tity of running water shall be agreed upon and specified, the said 
 quantity shall be expressed in all public acts in terms of the 
 ' module of water.' 
 
 " The module of water is that quantity, which, under simple 
 pressure, and with a free fall, passes through a quadrilateral rect- 
 angular opening, so placed as that two of its sides shall be verti- 
 cal, with a breadth of two decimetres, a height of two decimetres, 
 and opening in a thin plate against which the M'ater rests and is 
 maintained, with its surface perfectly free, at a height of four 
 decimetres above the lower edge of the opening. 
 
 "Article 644. The right to a constant. supply of water exists at 
 every moment. 
 
 "Article 645. The right to summer water (aqua estiva) exists 
 from the equinox of spring to that of autumn; to winter water 
 (aqua jemale) from the equinox of autumn to that of spring; and 
 for water distributed at intervals of hours, days, weeks, months, 
 or otherwise, for the time agreed upon or possessed. 
 
 " The distribution of water by days and nights is regulated by 
 the natural day and night. 
 
 " The use of water on holidays is restricted to such holidays as 
 were in legal existence at the time when the agreement was orig- 
 inally made, or actual possession of the water obtained. 
 
 " Article 646. In distributions of water made by horary rota- 
 tion, the time necessary for the water to flow to the outlet of an 
 employer thereof shall be included in his period of rotation; and 
 the water which passes down the common channel at the changes 
 of the rotation belongs to the employer with whom the rotation 
 terminates. 
 
 " Article 647. The water which rises or leaks into the bed of the 
 canal, subject to the distribution by rotation adverted to in the 
 preceding article, cannot be stopped or appropriated by an em- 
 ployer, except at his own proper period of the rotation." 
 
 Distribution and Measurement — Italian Legislation. 
 
 The law of the present Italian government on the points of the 
 foregoing articles from the old Sardinian code, is contained in arti- 
 cles 220-222, 623-626, 653, and 654, of the Italian civil code. 
 [See appendix II.] 
 
246 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Remarks on Piedmontese and Italian Legislation. 
 
 Reviewing the foregoing Piedmontese articles and the corre- 
 sponding legislation of the present Italian Kingdom, to be found in 
 appendix II, we notice certain leading points bearing on each of 
 the systems of distribution that have been mentioned, as follows: 
 
 First System — Distribution by Volume. 
 
 {Sardinian Code, Articles 643 and 64I; Italian Code, Articles 6SB and 6W.) 
 
 Piedmont. — First, with respect to the delivery of water by defi- 
 nite volume or quantity; The Sardinian code fixed a unit of meas- 
 ure for general adoption, which it called a module, and defined 
 it as the quantity which would be measured out under certain sim- 
 ple conditions specified. And it provided that in all new grants 
 or transactions concerning the delivery of waters by quantity, the 
 amounts should thereafter be expressed in terms of this legal 
 standard. (Art. 643.) 
 
 But the delivery of water in greater or less volume than the one 
 module, for which the dimensions and character of orifice and 
 head of pressure were given (Art. 643), of course necessitated the 
 adoption of openings of different sizes, and the circumstances 
 under which water was to be delivered, likewise made necessary, 
 in different cases, its delivery under varied heads of pressure, and 
 hence, while the standard amount was fixed as a unit, the means 
 of measuring out any number of such units or fractions thereof 
 were left undetermined, and thus relegated to the field of hydraulic 
 practice and that of agreement between the parties to the contract. 
 (Art. 641.) 
 
 Providing for these cases, which, of course, really comprised 
 nearly the whole practice, the law (Art. 641) left the choice of the 
 form of the outlet of derivation to the parties to the agreement, 
 but it held each to such choice, should the other insist, unless it 
 could be shown that the resulting measurement was in error by an 
 amount exceeding one eighth of the quantity contracted for. By 
 this provision it was desired to prevent litigation over trifling 
 amounts of water, and to promote care and insure greater accu- 
 racy in the preliminary determining of the conditions of measure- 
 ment for each case. This stipulation of a margin of one eighth 
 for error, it was thought, was made advisable by the necessarily 
 imperfect application of hydraulic rules, in the thousands of vary- 
 
DISTRIBUTION AND MEASUREMENT 247 
 
 ing forms and dimensions of structures that circumstances would 
 compel the use of. So the results of experience were called on 
 for a guide, arid the limit of an eighth of the desired amount of 
 flow was held to be sufficient to include the variations likely to 
 occur. 
 
 Opinions of Giovanetti, De Buffon, and Sclopis. — M. De BufFon, in 
 commenting on this legislation, quoted from a Piedmontese writer, 
 who is generally referred to as having been a high authority upon 
 these matters, and I reproduce his remarks here: 
 
 De BufFon says: "M. Giovanetti, of Novare, a lawyer specially 
 well versed in the questions which affect irrigation, has drawn up 
 a learned work, in which he passes in review in a comparative 
 manner all the Piedmontese legislation on this subject. In this 
 work he expresses, on the subject of the module of water adopted 
 in this country, an opinion similar to the two preceding. He 
 makes amongst others the following observations: 
 
 '"In our article 643 (Sardinian code) there are indicated per- 
 fectly the conditions of a uniform supply; but in practice there are 
 physical circumstances which rule, and it is necessary to content 
 oneself with the least defective or the most practicable method. 
 The essential was to establish a unit, to sanction a result without 
 prescribing a fixed form. The law could not make specifications 
 upon the form (of measuring outlets) . These are in the domain 
 of hydrometry, and may vary infinitely, either in accordance 
 with local circumstances or in accordance with the progress of art. 
 
 " 'Article 641 gives to the contracting parties the express liberty 
 of making agreements upon the form of the orifice and the struct- 
 ure of derivation. These are they, then, who ought to settle ac- 
 counts; and if the cultivator does not know how many cubic feet 
 of water run through an opening of fixed dimensions, he knows 
 very well what are the advantages which he can derive from this 
 water in practice. The seller, on his part, also makes his calcu- 
 lations, and he bases them on the greater or less competition, and 
 upon all the elements of the value of the water in a given locality. 
 These reciprocal reflections determine the contract. An outlet is 
 not constructed until an expert, in whom both parties have confi- 
 dence, goes to the place and makes a report, submitted to the 
 examination of the interested parties.' " — [De Buffon, ^''ol. II, p. 
 192, quoting Giovanetti. 
 
 De Buffon himself, differing from Giovanetti, thought not only 
 that a unit of measure should have been fixed at some universally 
 recognized volume, but, also, that the form and dimensions of the 
 outlets for a considerable range of cases should have been deter- 
 mined by governmental action — by a ruling of the administrative 
 
248 ITALIAN IRRIGA TION LEGISLA TION. 
 
 department — and, hence, he criticised the Piedmontese law. But 
 the reason for this shortcoming is set forth by another author 
 whom he quotes: the count Sclopis, member of the senate of 
 Turin, who, in a memoir communicated to the Academy of moral 
 and political Sciences, of Turin, said: 
 
 " ' The Sardinian law has held a just middle course upon this 
 point, by having due regard to ancient customs and acquired 
 rights. In fixing the new unit with conditions, which, if they are 
 exactly observed, correspond to a well determined discharge, it 
 has deemed it convenient to confine them to the two most impor- 
 tant: that is to say, the dimensions of the orifice, and the stipula- 
 tion that the water must flow through it by simple pressure. 
 
 " 'Apart from these two principal conditions, it has presented 
 nothing, either on the form of the measuring apparatus, or on the 
 nature of the precautions to be taken to maintain the constant and 
 uniform pressure. In doing this, it has aimed not to tie itself to 
 the results of generalized experiences, nor to fetter the progressive 
 march in the application of hydraulic science with the ever vary- 
 ing circumstances of time and locality.' " — [De Buflbn, Vol. II, p. 
 193, quoting Sclopis. 
 
 Prom this we see that regard for " ancient customs and acquired 
 rights " stood in the way of what was really the right thing to do, 
 in the establishment of a system of water measurement for the 
 country; and we find evidence of the difficulty of changing " an- 
 cient custom," even if it is wrong, in irrigation practice; and we 
 note how far "regard for acquired rights" may influence or pre- 
 vent legislation that it is supposed will affect such rights, even 
 when, in truth, the effect would be to their benefit, if they were 
 held on a just basis, and even when the proposed measures are in 
 reality the right ones for all concerned. And we should learn, 
 even from this small matter, how dangerous it is to allow rights 
 to grow up, unregulated and unrecorded in intelligible form, for it 
 will be seen later that Italy afterwards felt obliged to do in this 
 matter what Sardinia failed to do, but what De Buffon thought 
 should have been done years before. But, the Sardinian legisla- 
 tors, if not clear on the matter of water measurement, certainly 
 understood the importance of having the extent of rights known 
 as fully as possible, according to their unit of measure, such as it 
 was. 
 
 Piedmont. — Taking up the next point concerning this system of 
 "Distribution by Volume:" Experience had taught the embar- 
 rassments which arise in the management of hydraulic works. 
 
DISTRIBUTION AND MEASUREMENT. 249 
 
 in consequence of the long continued existence of questions open 
 even to the extent of this small marginal limit. So, considering 
 three years to he sufficient time in which to test the working of 
 an outlet, the framers of this law inserted the clause barring all 
 appeal from an agreement as to the form and dimensions of a 
 measuring opening, when such three years from the time of com- 
 mencing its use should have passed, even though the variation in 
 the amount delivered, from the agreed upon quantity, should ex- 
 ceed the one eighth limit. (Article 641.) 
 
 But it was also well known that the discharges of such outlets 
 were necessarily calculated for nearly fixed conditions in the 
 canal of supply, and that any material variation in such condi- 
 tions would produce a decided variation in these discharges, and 
 hence it was provided that the right of appeal from an agreement 
 concerning the form and dimensions of an opening to deliver any 
 certain quantity of water, should hold good in all cases and for all 
 times, should the normal flow or regime of the canal of supply at 
 the point of the outlet he materially changed in any way. (Art. 
 641.) Here again the whole subject was thrown into the domain 
 of hydrometric practice, and the courts had authority vested in 
 them to appoint a hydraulic engineer to expert each such case 
 which caused contention. 
 
 Lombardy. — The difficulty of dealing with acquired rights, and 
 the way in which the best measures are put off because of the fix- 
 ity of ancient customs in the practice of irrigation, is still further 
 attested in connection with this subject of measurement of waters, 
 hy the Lombardian experience. Articles 13 and 14 of the decree 
 of 1806 treated the matter in this way: 
 
 " Until there has been established a uniform measuring appar- 
 atus and a common unit for the gauging of waters, the construction 
 of regulated outlets are continued to be made according to local 
 usages. In provinces where no fixed measuring apparatus what- 
 ever is in use, the direction-general shall determine on one which 
 must be in accordance with the local circumstances." 
 
 Now there had grown up in every one of half a dozen or more 
 districts of this province a local system of measuring waters, and 
 they were one and all defective, and the engineers of the country 
 knew this and so represented it, but, local prejudice was such 
 that, so long as Lombardy remained in this respect independent 
 of the rest of Italy, these differences were never reconciled and 
 
250 ITALIAN IRRIGA TION LEGISLA TION. 
 
 there never was any definite unit of measure adopted, although 
 the practice became gradually better understood as the engineers 
 succeeded in introducing better forms of apparatus and in experi- 
 menting with their results. 
 
 The Kingdom of Italy. — Attention is now asked to articles 622 
 and 620 of the new Italian code (see appendix II), which corre- 
 spond to the articles 643 and 641 of its predecessor, the Sardinian 
 code, upon which comments have been made. It will be seen 
 that in these two articles the new code for all Italy follows the 
 old code for Piedmont and other parts of northern Italy, in gen- 
 eral principle, but differs materially in the expression of some of 
 its details. 
 
 Article 622 of the Italian, following 643 Sardinian code, pre- 
 scribes a legal " module," and makes its adoption for the future 
 obligatory in all agreements concerning waters; but instead of 
 defining this module only as an amount of water which would 
 pass out of a certain orifice, with a certain pressure, it gives it a 
 fixed and determined volume for all cases, and says ''it is a body 
 of water which flows with the constant volume of 100 litres per 
 second," and for subdistributions it may be " di\'ided into tenths, 
 hundredths, and thousands." Thus after thirty years of trial the 
 views of De Buffon, first expressed in the early part of the period, 
 are shown to have been sound, by the Italian government doing 
 in this particular substantially what he said the Sardinian gov- 
 ernment should have done. 
 
 Article 620 of the Italian code corresponds to article 641 of the 
 Sardinian, and folldws it quite closely in all but the clause con- 
 cerning the limit of one eighth, allowable as an error in measure- 
 ment before an appeal from an agreement might be taken. This 
 clause the Italian article leaves out altogether, thus testifjdng to 
 the fact that hydraulic science had in the meantime advanced so 
 much that there was no longer any reason for any such provision: 
 if the parties to an agreement concerning the delivery of a stipu- 
 lated volume of water had the orifice for its delivery properly 
 calculated and adjusted according to the present state of the 
 hydraulic science, it should be correct so long as the conditions 
 of the canal and water supply remained the same, and there 
 should be no margin allowed, no possibility of error forecast, and 
 no appeal from the agreement; and if they did not have the cal- 
 culations and construction properly made at first they ought to 
 
DISTRIBUTION AND MEASUREMENT. 25 1 
 
 be made to stand by the agreement and structure as it was. Such 
 appears to have been the reasoning of the framers of the new code. 
 
 Second System — Distrilnition by Use or Service. 
 
 (Sardinian Code, Article 04^: Kalian Code, Articles 621, OSS, 6S4.) 
 
 The provisions thus far spoken of were for cases wherein water 
 was to be delivered under agreement in a certain volume through 
 a specified outlet. The second and third paragraphs of article 
 641 made provision for settlement of disputes arising under agree- 
 ments wherein no particular form of outlet was specified, which 
 cases could only come up under agreements made before the 
 passage of the law under consideration, for after its passage all 
 contracts concerning water discharges had to be drawn in terms 
 of the standard module, and the form and dimensions of the pro- 
 posed outlets were required to be written in the agreement, else it 
 would not be legal and binding on either party. 
 
 For these eases to come up under old agreements, in considera- 
 tion of the embarrassments before mentioned as resulting from 
 the long continuance of open questions as to measurement, yet to 
 allow ample time for their adjustment and not to bar cases of 
 recent development, the time in which an appeal from an agree- 
 ment might be taken was fixed at ten years, with, however, the 
 reservation of right to appeal at any time, for reasons heretofore 
 given, should a variation of discharge be occasioned by a change 
 in the canal of supply or in its flow of water. 
 
 And, finally, this article 641, and for this class of cases wherein 
 no agreement should have been made as to the form of outlet, dis- 
 tinctly provided for judicial decisions to be based on the judgment 
 of hydraulic engineers nominated by agreement between the par- 
 ties to the contest, or, if they could not agree, then wholly by the 
 courts. The full significance of this provision becomes apparent 
 when we know that, under other general provisions of law in Italy, 
 the number of expert witnesses which may be summoned in a 
 case is limited according to the character and importance of the 
 case, and the judge has discretion to say how many such witnesses 
 shall be admitted in all. Hence, for the cases under the above 
 provision of the article 641, the judge having named the number 
 of experts that might be called, the parties were allowed to agree 
 upon them, to report as to matters of fact and scientific and prac- 
 tical deduction; but, should the parties to the contest fail to agree 
 
252 ITALIAN IRRIGA TION LEGISLA TION. 
 
 upon the experts, the court by the law was given the power to 
 appoint them. 
 
 This was a wise provision, growing out of a long range of ex- 
 perience in contests over hydraulic questions of the most complex 
 kind. The effect was to raise the character and standing of ex- 
 perts in such matters. As we have seen, none but registered and 
 proven engineers were permitted to practice the profession; 'and 
 such provisions of law protected the profession from the debasing 
 influences of the partisan rivalry between htigants. The hydrau- 
 Hcian was made the judge of the science and art in the case, and 
 was not permitted to appear as the partisan witness of either the 
 one or other party to the contest, as, unfortunately, is the case in 
 our American system of experting. To conduct such cases there 
 were lawyers trained in physical science and hydraulics, called 
 engineer advocates. The civil engineers were (and still are in such 
 matters in all Italy) the court referees and advisers for all scien- 
 tific matters of fact and opinion. 
 
 Piedmont. — Passing on to article 642, we find here certain pro- 
 visions relative to the cases wherein water is delivered under the 
 second arrangement — that according to its use or service, or the 
 area to be irrigated. The law provided for this case that when 
 an agreement had been made for water to perform any certain 
 service, as for instance the irrigation of any specified crop or de- 
 termined area of land, and meaning for one irrigation, or more, 
 or for one season or year, or more, as the case might be, then 
 the contractor should be obliged to deliver that quantity of water 
 necessary for the purpose. And, in case of contests coming up on 
 this point, this quantity was in practice determined, according to 
 the facts and the results of experiences in point, by the courts, 
 upon the evidence of experts chosen by the parties to the suit, as 
 might be allowed by the court, or by the court itself if no amica- 
 ble agreement could be arrived at. But to avoid the precipitation 
 of contests on this point before the courts, the law provided for an 
 amicable adjustment of disputes by the fixing of an outlet such 
 " that the grantee shall receive the volume sufficient for the serv- 
 ice agreed upon, but nothing more." 
 
 After what has been said in commenting upon article 641, the 
 second paragraph of article 642 does not call for remark. It is 
 apparent also that all the provisions of article 642 were intended 
 for cases that would arise under agreements made before the pas- 
 
DISTRIBUTION AND MEASUREMENT. 253 
 
 sage of the law, for, as we have seen, after its passage only the one 
 form or arrangement for delivery — that according to actual vol- 
 ume expressed in terms of the standard module — was to be con- 
 sidered lawful. 
 
 Th.e Kingdom of Italy. — Article 621 of the Italian code (see ap- 
 pendix II) corresponds to that (642) of the Sardinian last com- 
 mented upon, and follows it closely in meaning, although not in 
 wording, with one exception — that the limit of time during which 
 an agreement may be apj)ealed from when the works for an outlet 
 shall have been peaceably used as built, is reduced from ten to 
 five years. On this point of distribution by use or service rendered, 
 the Italian code contains a very important provision not found in 
 the old code for Piedmont. It is embodied in articles 653 and 
 654, and is to the eflect that when an agreement has been entered 
 into to furnish water to irrigate any certain area of land or any 
 certain cultivation, oe. for any fixed purpose, with a stipulation 
 that the drainage waters shall belong to the party dehvering the 
 supply, then the user of the water cannot change its use in a way 
 to consume more or reduce the drainage waters in volume. The 
 reason for this rule is apparent when we know that, for instance, 
 on the same area of land some crops would require and absorb 
 twice as much water as others, the method of applying the water 
 being in each case suited to the cultivation. 
 
 And, furthermore, the additional matter in the new code pro- 
 \-ides that the user of the water cannot divert and use again any 
 portion of the drainage waters escaping from the place of his use 
 of the water agreed for, on the plea of having increased the supply 
 in any way. If he has obtained water under an agreement for 
 any expressed purpose with the stipulation that the drainage 
 water is to belong and be at the disposal of the owner or controller 
 of the supply with whom he has contracted, then he must refrain 
 from using the water for any purpose than the one named in the 
 agreement, and must let all the drainage waters flow off as they 
 naturally would, or as agreed upon, whether increased from any 
 other source of supply or not. This provision, holding a user of 
 water to the strict letter of his agreement, has doubtless been made 
 necessary in order to avoid contests wherein the facts for evi- 
 dence — as to increace of supply and drainage from other causes or 
 sources than the one agreed for — may be very obscure and difficult 
 of substantiation one way or the other; and it has the effect of 
 
254 ITALIAN IRRIGA TION LEGISLA TION. 
 
 making the wording of agreements more explicit, in order to cover 
 a,ll contingencies of practice in each case. 
 
 The then following articles (655 and 656) of the Italian code do 
 not refer to waters furnished under agreements, but to those to 
 which a right has been attached as a servitude, and, hence, they 
 will be spoken of elsewhere. 
 
 ThirA System — Distribution by Time. 
 
 {Sardinian Code, Articles 644 to 647; Italian Code, Articles 6^3 to 626.) 
 
 The arrangements for delivery of water by actual quantity and 
 by service to be rendered, having now been spoken of, we come to 
 the provisions of the law, relating to the delivery of water by agree- 
 ment as to time. In northern Italy irrigation goes on the year 
 round, and, in fact, the most copious irrigations are conducted 
 through the winter, although at that season the sky is much over- 
 cast, rain, or sleet rather, frequently falls, »iow is not uncommon, 
 so that the upper part of the valley of the Po is covered for weeks 
 at a time with a snow mantle a foot or more in depth, and stand- 
 ing waters are frozen to several inches in thickness. 
 
 The irrigation at this season of the year is that of meadows, or 
 marcite fields as they are called, and it is a practice of a high 
 order in the art. The object is to provide green food for the cows 
 of the dairy farms with which the country abounds, and for which 
 it is remarkable, supplying immense quantities of cheese and but- 
 ter for export. These meadows are formed after very exact plans, 
 so that their surfaces are shaped into long narrow ridges parallel 
 to each other and of such longitudinal and transverse slopes that 
 the waters applied through a ditch situated along the crest of each 
 ridge, spread out from it laterally, flow in a thin sheet down each 
 slope of the ridge over and through the grass there growing, and 
 find exit longitudinally by way of drainage ditches lying between 
 each two such irrigation ridges. 
 
 Thus in the coldest weather, with snow a foot deep elsewhere, 
 the surfaces of these meadows are kept clear bj' the slowly moving 
 film of water over them; the ground is prevented from freezing, 
 and the grass, kept green and growing, is cut from time to time 
 and fed in stables to the cattle. The waters of springs, or fon- 
 tanili, with which these lands abound, as elsewhere explained, 
 being much warmer, are preferred to the canal waters for this pur- 
 pose of winter irrigation, and command high prices at this season. 
 
DISTRIBUTION AND MEASUREMENT. 255 
 
 as indeed do other waters as well, in some localities. Thus it is 
 that there is a distinct practice following through a stated season, 
 known as winter irrigation. As in other countries, so, of course, in 
 northern Italy, the season of ordinary summer irrigation is well 
 marked by the chmate and the requirements of the soils and the 
 crop? cultivated, and, thus, it comes about that waters are con- 
 tracted for in certain streams of flow or amounts, as "summer 
 waters" and as "winter waters," meaning for the seasons of sum- 
 mer and winter irrigation, respectively. 
 
 Again, irrigation is conducted day and night, the twenty-four 
 hours around, summer and winter. Some persons contracting per- 
 haps for the use of water only in the daytime, others for its flow at 
 night; and hence the expressions "day water" and "night water." 
 And, in the way of explanation of the technology of the articles 
 of the code upon wliich comment is to follow: finally, agreements 
 are made for water to be distributed amongst consumers by cer- 
 tain houi"s of flow to each in rotation; and hence the expression 
 "horary rotation." 
 
 Thus with respect to ixme there are arrangements (1) for sum- 
 mer waters. (2) for winter waters, (3) for day waters, (4) for night 
 waters, and (5) for hourly waters: and to guide or prevent the 
 contests which might arise under agreements for such waters, the 
 Piedmontese (Sardinian) code contained the pro\'isions found in 
 the articles, 644, 645, 646, and 647, heretofore transcribed. 
 
 Piedmont. — ^And now, annotating these rules, we find in article 
 644, a declaration as to the rights, when an agreement had been 
 entered into to deliver any certain "flow of water" for any defi- 
 nite or indefinite period of time, to the effect that so long, and for 
 every moment, as the time extended, the right to the flow existed: 
 unless there had been a reservation in the agreement, whereby 
 the flow might be checked at some time, the obligation to deliver 
 continuously under this form of arrangement had been incurred, 
 and this article recognized it. 
 
 Passing to article 645, concerning summer and winter waters, 
 etc., after what has been said by way of introduction to these rules, 
 no comment is necessarj' here; except to call attention to the fact 
 that the law carefully defined the application of these terms, 
 thereby removing much cause for misunderstanding of agree- 
 ments. 
 
 Article 646 treated of a point which had given rise to much dis- 
 
256 ITALIAN IRRIGA TION LEGISLA TION. 
 
 pute — the question as to whom the tail end of a water supply 
 belonged, when, after the stipulated hour for change had arrived, 
 the stream was to be switched off on to the property of another 
 user. For instance, time is kept, at the head of a branch canal, 
 for distributing, by schedule, a certain stream of water to different 
 users of it in irrigation. The consumer has a right to it for two 
 hours, or any other stated time, and the question is: to whom 
 does the water belong which is in the ditch, on the way down, 
 when the gate is closed at the head of the ditch, at the end of the 
 time of the turn. This flow is called by the Piedmontese the 
 "tail of the water" (coda dell' acqua), and the article now under 
 consideration said that it belonged to the consumer who last had 
 the use of the stream. On this subject, Baird Smith wrote: 
 
 " Until this point was settled by the code, it was occasionally in 
 dispute, whether the loss of time due to the passage of the water 
 from the canal of supply to the distributing gates to the different 
 employers, should be borne by the proprietor of the canal or by 
 the consumers; it is established as a general rule that, when the 
 water passes below the outlet of the common channel, any loss of 
 time that may arise shall affect the employers only, being borne 
 by each in proportion to his distance from the head, or from the 
 outlet of the field which precedes his in the order of the rotation." 
 —[Smith, Vol. II, p. 288. 
 
 It has been elsewhere remarked, that much of the irrigated 
 regions of the valley of the Po is underlaid with water-bearing 
 strata of gravel, and that the cutting of canals through them often 
 opens sources of additional water supply to these channels. It is 
 not infrequently the case that such sources yield a very material 
 part of the volume carried by a canal, and that, hence, it has a 
 considerably greater amount of water at a lower than at a higher 
 part of its course; or that, being a distributing channel, when the 
 water is shut off at its head, it still continued to have a flow de- 
 rived from springs in its bottom. The right to use these waters 
 was a subject of contention: employers below claiming that they 
 did not belong to the canal or ditch owners. So, as the result of 
 these contentions, came decisions of courts, which were incorpo- 
 rated into the code in article 647; the waters rising in or leaking 
 into a canal or ditch were held to belong to its owner; and employ- 
 ers below could not use them except at their proper hours and 
 as part of the stream delivered to them in distribution. 
 
 The Kingdom of Italy. — Articles 623 to 626 (see appendix II) of 
 
DTSTRIBUTIOX AXD MEASUREMENT. 257 
 
 the new Italian code correspond to those of the former [Sardinian 
 code, last commented upon, and follow them in principle and 
 terms so closely that a comparison of details is not called for. 
 
 In closing some comments on article G47 of the Sardinian code, 
 Baird Smith, writing in 1S55, said: 
 
 '■ It is not uncommon in the irrigated districts of Piedmont and 
 Lorabardy for parties to make mutual interchanges of their pe- 
 riods of rotation. Special cases arise in which water is wanted at 
 si)ecial times by indi^^duals -not possessed of the right to irrigate 
 at such times. They, therefore, eftVet an exchange of period with 
 other parties, to whom an arrangement of the kind may be conven- 
 ient, and, though the law is doubtful on the point — some decisions 
 being in favor of, and others against, this proceeding — ^there does 
 not appear to be any valid objection to its iTse, if it be guarded bj' 
 the provision that the other emploj'ers of the water-course' shall 
 sustain no serious damage by the manner in which it is carried into 
 effect. An analogous custom is common m India: the positions of 
 outlets on water-courses, held in common, are often changed, and 
 so long as other parties do not suffer by this, the interests of agri- 
 culture are certainly promoted bv its being freelv made use of." — 
 Smith, Vol. II, p. 290. 
 
 As may be inferred frora the above, there was no pro^'ision in 
 the Sardinian code, on this point, but now we find in the Italian 
 code — ^the outcome of longer experience — an article which covers 
 the case, as follows: 
 
 "Article 627. In the same canals the users may vary or ex- 
 change their turns among themselves, provided such changes cause 
 no injury to others." 
 
 Probably the author, Smith, was aware of decisions already 
 made at the time of his investigation and upon which this pro- 
 vision of the later code was afterwards predicated; but, even so, it 
 is an evidence of close study of his subject that the rule was after- 
 wards enacted into law as nearly as possible in the words in which 
 he said it should exist. 
 
 • Distributing ditches are called "water-courses" by the English writers on 
 irrigation. 
 
258 ITALIAN IRRIGA TION LEGISLATION. 
 
 SECTION II. 
 
 Thp: Rights of Irrigators. 
 
 (1) The Continiiance of Water Supply} 
 
 In Italy, as in irrigating countries generally, where there has 
 been a clashing of interests between the owners of canals, or hold- 
 ers of great water privileges, and the -irrigators to whom the waters 
 were to be distributed, special points came up in this connection. 
 Many water-rights were established there by grant and prescrip- 
 tion, in times when from a troubled condition of society, no thought 
 was had of future agricultural masses of people with interests to be 
 protected. A water-right aristocracy grew up; the canal owners 
 claimed the right of absolute property in the water held by them, 
 and undertook to do with it as they chose. If they could get 
 higher rents for it in one section of country commanded by their 
 canals than in another, which was occasionally the case, they 
 claimed the right to discontinue the suppljdng of irrigators where 
 water was cheap, after their annual or term agreement had been 
 fulfilled, and of leading it to the lands of those who would pay 
 more for it. On the other hand, the irrigators claimed that they 
 had expended their means and labor in the building of distribu- 
 ting works and preparation of lands to receive these waters, and 
 being deprived of their supply was equivalent to being debarred 
 the use of their property. They claimed that water-rights were 
 not rights of property in the waters, as in the sense of ownership 
 of land; that the grants were made for the good of the country 
 and not for the exclusive benefit of the grantees. 
 
 Piedmont. — In Piedmont, these questions long ago came to a 
 head from time to time in great struggles between immensely 
 wealthy and powerful interests, but it was only during the last 
 years of the last century and the first years of this, that they were 
 well disposed of on principle. The courts and senates rejected 
 the claim of absolute ownership and ultimate right of control set 
 up by the water-right grantees and canal men, and recognized the 
 right of irrigators to the continued use of waters which they had 
 for a considerable time had at their disposal, and to use which 
 1 
 
 1 See, Smith, Vol. II, pp. 138 and 2lil; iilso, De Buffon, Vol. II, pp. 210-212, and 
 elsewhere. 
 
RIGHTS OF IRRIGATORS. 259 
 
 they had constructed distributing works and prepared their lands; 
 and several of the local senates decided that so long as the irri- 
 gator paid the water-rates, he could not be deprived of the use of 
 the waters, and that a change in water-rates had to be fixed by 
 arbitrators, appointed by both parties at interest. 
 
 This was the law in Piedmont before the various petty govern- 
 ments were set aside during the early part of this century, in the 
 consolidation of the kingdom of Sardinia. When the commission 
 was forming the Sardinian code, an article carrying out this prin- 
 ciple was embodied in its draft, and agreed to by all of the local 
 ruling interests to be reconciled but the senate of Genoa, a local- 
 ity where irrigation was not practiced. Here it was insisted that 
 the right sought to be established was subversive of the rights of 
 property; so the article was stricken out of the draft of the code. 
 But it was subsequently held that the rule had been established 
 and recognized for all existing irrigations, so that these were pro- 
 tected, notwithstanding the failure to incorporate the article in the 
 code; and projectors of new irrigations have protected themselves 
 by securing long term leases on waters before preparing their lands. 
 The canal and water-right owners have apparently recognized the 
 situation and dropped the conflict, for at the time Baird Smith 
 wrote, any landed proprietor could " obtain a lease of a given quan- 
 tity of water, either in perpetuity or for a specified term, on paying 
 the current price for it.'' 
 
 Lomhardy. — In Lombardy, also, this question came up in a most 
 aggravated form. The holders of water rights " acted on the prin- 
 ciple that they had a right to do what they liked with their own, 
 and were in the habit of suspending arbitrarily the supplies of 
 water disposed of by them to other parties under subordinate 
 grants, of increasing as they thought fit the prices to be paid, and, 
 in a word, of pushing to its utmost limits the right of absolute 
 property purchased by them from the state." As the outcome of 
 a long series of struggles over this point, the question was settled 
 very much as already described for Piedmont: the water-right 
 holders were restricted in the operation of their rights of property- 
 ship in the waters, and compelled to distribute them amongst the 
 irrigators according to ancient custom, notwithstanding the fact 
 that in inost cases of the older rights, they held the water as an 
 absolute property by virtue of purchase from government. Baird 
 
260 ITALIAN IRRIGATION LEGISLATION. 
 
 Smith wrote, of this claim of the water-right owners in Lomhardy 
 to do as they chose, as follows: 
 
 " But an agriculture founded on artificial irrigation cannot ad- 
 vance as it ought to, under such an arbitrary system; and so, in 
 protecting the irrigating communities, there gradually grew up 
 a right, which, being acknowledged by the legislative tribunals, 
 modified the despotism of the government grantees. This right 
 bears the name of the diritto d'insistema, and assures toa prov- 
 ince, or commune, or association of irrigators, or even to individ- 
 uals, a legal claim to a continuance of such a supply of water as 
 they may have enjoyed for long periods of time, and on the faith 
 of possessing which they may have incurred heavy expenses. So 
 long as the irrigating community pays the water-rent fixed by the 
 grantee of the canal, it cannot be arbitrarily dispossessed of its 
 supply; and in the event of the proprietor of the water desiring 
 to change the rates of payment, this must be done through the 
 medium of arbitrators duly nominated by both parties." — [Smith, 
 Vol. II, p. 138. 
 
 It is as a result of this class of troubles that we find all agree- 
 ments between those who have water to distribute, sell, or lease for 
 irrigation, whether the government, private indi^'iduals, or great 
 corporations, and those who use the waters, are made for long 
 terms, the minimum, as a general rule, being nine years, and, for 
 greater volumes, twenty or thirty years, and, not infrequently, for 
 ninety or an hundred, or in perpetuity. These contracts deter- 
 mine in detail the terms of the transaction, and are recorded and 
 stamped, even though for an insignificant amount only. Their 
 form and provisions will be spoken of elsewhere. 
 
 (2) The Use of Spare Waters} 
 
 We now come to another class of contests between those who 
 held the water, and those who wanted to use it. The case we 
 have just considered is one wherein water having been used in 
 irrigation by certain employers of it, under leases or rents, at a 
 determined rate for considerable periods of time, the owner of the 
 canal of supply desires to raise the rent at the end of a lease, or 
 dispose of the water to other persons, thereby leaving his former 
 customer without a supply. The present case is that in which an 
 owner of a spring, or canal of supply, not having use for all the 
 water himself, refuses to sell it to any one at a fair rate, but insists 
 
 ' See, Smith, Vol. II, pp. 257-260, and elsewhere; also, De BufFon, Vol. II, pp. 
 200-204, and elsewhere. 
 
RIGHTS OF IRRIGATORS. 261 
 
 upon wasting it. One would suppose that such cases, in a country 
 where water is so vakiable, would never occur, but there have 
 been some remarkable instances of this kind of abuse, wliich are 
 so instructive that I reproduce an account of one of them liere, as 
 given by De BufFon, upon the authority of count Cavour, who was 
 minister of finance of the Sardinian government. In his manu- 
 script notes to De Buffon the count said: 
 
 " I have seen an example of each of the abuses that the new 
 code has tried to prevent. Here is one of them: 
 
 " In 1832 the marquis of Saint-G , farmer,' of the canals of 
 
 the Vercellais, having quarreled with the marquis Pal , his 
 
 neighbor, had persisted, during eight consecutive years, in throw- 
 ing awav into the Po, two streams of water that the marquis 
 
 Pal offered to pay him 12,000 francs ($2,400) a year for. To 
 
 satisfy a personal antipathy ]M. de Saint-G consented to lose 
 
 nearly 100,000 francs ($20,000), and to cause at the same time to 
 the agriculture of his country a loss at least three times as great. 
 
 "The new code put an end to this deplorable state of affairs; 
 but a sentence of the senate of Turin, founded on article 560 of it, 
 
 was necessary in order to force M. Saint-G to have his revenue 
 
 augmented by 12,000 francs a year. 
 
 "This same marquis of Saint-G , wishing to coerce the 
 
 community of F , to subscribe to an engagement, which they 
 
 thought oppressive, refused during two years to let rmi on the 
 lands of this comixiunity the colaHires' of his vast domains, for 
 which he was offered 6,000 francs per annum. He preferred to 
 waste them into the Po. 
 
 " Marquises of Saint-G are rare, but as they are not impos- 
 sible, the law does well in taking away from them the means of 
 injuring people less rich and powerful." — [De Buffon, Vol. II, pp. 
 20S-204, quoting Cavour. 
 
 Piedmont. — The provisions of the law to which the count referred 
 were contained in the article of the Sardinian code, which here 
 follows: 
 
 "Article 560. Ever}' proprietor or possessor of water may make 
 such use of the same for himself as may seem to him good, or he 
 may dispose of it in favor of other parties, provided always that 
 no title or prescription exists to the contrar}^; but after having 
 used the water himself, he is not at liberty so to dispose of it as 
 to cause it to be lost, to the injury of lands at lower levels, which 
 might have benefited by it without causing any back-water, or 
 
 ' The system of farming out the revenues of and distribution of the water 
 from government canals is explained elsewhere; and the abuses which have 
 grown up under it have been shown. The present is a case in point, illustrat- 
 ing what has been said. 
 
 ^ The waste waters from meadows and rice irrigations. 
 
262 ITALIAN IRRIGA TION LEGISLA TION. 
 
 injuries of other kinds to the higher employers. Whoever may- 
 desire to avail himself of the water referred to is bound to pay a 
 fair price for it, whether the supply be derived from a spring ex- 
 isting in the upper estate, or from a stream introduced by special 
 grant." 
 
 It will be seen that the provisions of this article meet the case 
 quite fully, and, as a matter of fact, the contentions on points of 
 this class were stopped by a few decisions of the higher courts, 
 under it. Mr. Baird Smith, from a former edition of De BufiTon's 
 work, also noticed Cavour's account of the case of the Marquis of 
 Saint-G , and, in concluding the topic, himself made the fol- 
 lowing remarks: 
 
 "I think few will dissent from M. de Cavour's conclusion; for 
 if it is ever necessary that a man should not have full power to do 
 what he likes with his own, or that the duties of property should 
 be enforced equally with its rights, surely it is when the very 
 sources of agricultural progress are concerned. I think, therefore, 
 that the principle of requiring every proprietor of water to place 
 it at the disposal of his neighbors on equitable terms, after his 
 own wants have been fully supplied, is one of great importance in 
 the legislation of irrigation, and well worthy of adoption by us in 
 the East, where great canals are in progress.'" — [Smith, Vol. II, 
 p. 258. 
 
 The Kingdom of Italy. — In framing the new Italian code (see 
 appendix II), article 545, the above article (560) of the Sardinian 
 was closely followed, so that irrigators have now the same consid- 
 eration on this point, for all Italy, that those of Piedmont had 
 twenty and more years ago. But, also following the framers of 
 the old code, those who made the new refrained from inserting any 
 clause corresponding to the ancient diritto d'insistenza of Piedmont 
 and Lombardy — the right whereby any water company could be 
 compelled, by judicial action, to continue the serving of its old 
 customers, and be prevented from conducting its waters to other 
 customers, thereby leaving users of water of long standing without 
 any. As before remarked, the law on this point was set for exist- 
 ing irrigations by the action of the local senates in the last part of 
 the last and the first part of this century ; and after the adoption 
 of the Sardinian code new irrigation agreements have always con- 
 tained a clause protecting the irrigators for long periods, from pos- 
 sible withdrawal of their water supply. 
 
 ^ Mr. Baird Smith's report was written for the English East India Company, 
 operating in India. 
 
OBLIGATIONS OF CANAL OWNERS. 263 
 
 SECTION III. 
 
 Obligations and Rights of Irrigators and Canal Men. 
 (1) Obligations Concerning Water Supply and U.te. 
 
 Experience teaches that the relations between those who com- 
 mand for distribution, the water supply of an irrigation region, 
 and those who receive and use it, cannot be too clearly understood. 
 The scale of efl&ciency of canal works and of energy in their man- 
 agement is such that, at best, it is in practice very hard, in any 
 particular case not at an extreme, to say whether a management 
 has been to blame or not for a failure of water supply. A canal 
 manager may be so often a target for ungrounded fault-finding on 
 the part of irrigators, that he is hardened to their complaints, and 
 becomes careless of their interests; or he may be parsimonious in 
 the business administration of his property, his canal works be- 
 come inefficient, or, not repaired in time for the season of rising 
 waters, are damaged, and the irrigators suffer because of short 
 supply resulting from his neglect or bad management. 
 
 On the other hand, a failure of water may be occasioned to irri- 
 gators, by reason of circumstances beyond the control of the con- 
 tractor for the supply; the streams may not bring down their 
 accustomed quantity, or the works may be damaged by unex- 
 pected and overwhelming floods, so as to cause delay in delivery 
 of waters for irrigation; or third parties may maUciously or through 
 neglect cause damage to works, or otherwise interrupt the water 
 supply. The questions growing out of the relations here spoken of, 
 were found, in northern Italy, to specially demand the establish- 
 ment of general guiding rules, and accordingly we find such pro- 
 ^•isions in the laws of the country, as seem to fully meet the more 
 important points for misunderstanding, likely to come up. 
 
 Piedmont. — In Piedmont the Sardinian code was quite explicit 
 on these relations. The obligations of those who had water to 
 distribute to customers, for irrigation, concerning their duties with 
 respect to delivery of the supply engaged, the conditions where- 
 under they were not to be held responsible should there be a defi- 
 ciency in the water dehvered, the stipulation as to a rebate on the 
 water-rate in the event of certain conditions being presented, the 
 recourse of recovery for damages, and stipulation as to who should 
 
264 ITALIAN IRRIGA TION LEGISLA TION. 
 
 join in an action therefor, are fully and so clearly set forth in arti- 
 cles 664 and 665 of this code that I present them without further 
 remark: 
 
 " Article 664. In default of special agreements the proprietor 
 or other granter of water from a spring or canal is under obliga- 
 tions to those who hold grants under him, to execute all the ordi- 
 nary and extraordinary works required to procure the supply; to 
 conduct and to preserve the water up to the points at which the 
 employers take possession thereof; to maintain the structures in 
 an efficient state; to repair the bed and banks of the spring or 
 canal; to effect the usual clearances; and to exercise due dihgencfi, 
 watchfulness, and care to insure the delivery of the water, and its 
 regular supply at the appropriate times, under pain of having to 
 pay compensation for all injuries inflicted on the employers of the 
 water by his neglect of duty. 
 
 " Article 665. If, however, the granter of the water can prove 
 that the deficiency of the supply arose from natural causes, or from 
 the acts of others, for which he could not be held responsible, either 
 directly or indirectly, he shall not, in such cases, be bound to pay 
 compensation for the injuries sustained by the users of the water, 
 but only to submit to a proportional diminution of the amount of 
 water rent, or the equivalent corresponding thereto, whether pre- 
 viously paid or not, without prejudice to the right of the injured 
 parties to institute an action for compensation against those who 
 may have caused the deficiency. 
 
 " In the second case contemplated above the granter of the 
 water is bound to join in the action with the employers, should 
 they so desire, and to use every means in his power to assist them 
 in obtaining compensation from those who had caused the defi- 
 ciency of water." 
 
 The Kingdom of Italy. — Articles 649 and 650 of the Italian code 
 (see appendix II) correspond to the foregoing, numbers 664 and 665 
 of the old Sardinian code, and are the same with one important 
 exception. The penalty which was to be imposed upon the con- 
 tractor to deliver water, for non-fulfillment of agreement, as em- 
 bodied at the end of article 664 of the Sardinian code, is not 
 reproduced in the Italian. It may be, however, that other general 
 laws of the country regarding contracts, or agreements, or other 
 cognate matters in principle, amply cover the case, and enable the 
 employer of the water to recover compensation for damages from 
 the contractor to deliver it, should injury result from his neglect. 
 
 In this connection, although noticed before, under the heading 
 of " Distribution by use or service rendered," articles 653 and 654 
 of the Italian code are worthy of mention, as imposing an obliga- 
 
OBLIGATIONS OF CANAL OWNERS. 265 
 
 tion on the user of water not to change in any way its use, so as to 
 affect the volume required, or the amount of drainage waters left 
 over when the water is furnished under an agreement to do a cer- 
 tain service, and with a clause reserving the right to the drainage 
 waters, even though a plea is advanced that the volume of the 
 •drainage waters has been increased from some other source. Thus, 
 water being furnished to irrigate a certain tract of land in a cer- 
 tain crop, under an agreement whereby the drainage waters were 
 reserved by the party furnishing the supply, even though the irri- 
 gator should introduce a new and additional supply on to an 
 adjacent tract, lying higher, and thereby increase the amount of 
 drainage from the lower estate, he cannot use any part of said 
 •drainage, but must let it flow for the benefit of the party to whose 
 benefit the reservation in the agreement has been made. The ap- 
 parent reason for this rule, being given in another place, will not 
 be repeated here. It would seem, however, that nothing could 
 prevent an agreement being made whereunder an irrigator would 
 be fully protected in the use of any addition which he might cause 
 to the drainage waters. 
 
 (2) Priority of Privilege in Distribution. 
 
 Principles strenuously contended for and contested, at one time 
 or another in all irrigation regions, are those of priority of rights 
 to water: first, by virtue of commanding localities on streams; 
 second, because of antedate of claim; and third, because of con- 
 temporaneous advantage or stated claim for a definite time. In 
 the legislation of northern Italy these principles not only found 
 recognition in the adjustment of rights to water from natural 
 streams, but in the arrangement of the generalities of distribution 
 from canals to consumers. 
 
 Piedmont. — This last application was a feature peculiar to Pied- 
 montese legislation, and found place in the Sardinian code, in 
 articles 666 and 667, some points of which are worthy of expla- 
 nation and remark. 
 
 Generally, the management of irrigation is such in Italy that, 
 whether water is delivered by volume, as per module, or accord- 
 ing to the use or duty assigned, or indeed, in all cases except when 
 a continuous stream has been contracted for, the periods for each 
 delivery are determined and adjusted in a schedule long before- 
 hand, perhaps at the beginning of the season, on each canal. 
 
266 ITALIAN IRRIGATION LEGISLATION. 
 
 The same outlets, the same ditches, may, at diflferent parts of the 
 year, different months, different days, or different hours, serve 
 different people, but it is known and recorded long beforehand 
 at what times each is to receive his supply. This being the case, 
 and the schedule being determined, should the water supply be 
 all engaged, and should, at any time, from any cause, a deficiency 
 occur, as by the breaking of a canal or temporary derangement of 
 any work, the loss of water had to be borne by the parties whose 
 turn it was to receive it, according to the schedule. They did 
 not have to pay for water which they did not get, but there being 
 no water, or a short supply, during the hours, days, or weeks, as 
 the case may be, for which their turn was set, they were the sole 
 losers so far as the effect of slack supply was concerned. They 
 could not be served with water at expense to the shares of other 
 consumers who had been booked for other hours, or receive water 
 at any other time, unless there was a surplus of supply over the 
 demand at some period, which could be turned to them. (See 
 article 666.) 
 
 In cases wherein water was not distributed by turns, but in a 
 continuous stream, another rule prevailed. Primarily, the princi- 
 ple of "first in time first in right" was applied: he whose engage- 
 ment or agreement for water was the oldest, received his full 
 supply so long as water lasted, while those whose contracts had 
 been made more recently had to suffer loss by the deficiency; and 
 so on down the scale as to time — the last one being the first suf- 
 ferer. 
 
 Then came in the principle of advantage by reason of situation. 
 Where privileges were of even date in origin, the one located high- 
 est on the canal of supply had the advantage to the full extent of 
 its quota, while the ones below, commencing with the furthest 
 from the head, had first to suffer reduction when the supply was 
 short. But, as will be noticed in the law, no one was expected to 
 pay for water which he did not get, and, if payment had been 
 made in advance, the irrigator had a right to reclamation for the 
 amount. (See article 667.) 
 
 These articles are now themselves transcribed for closer study: 
 
 "Article 666. The deficiency of water shall be borne by those 
 parties during whose period of rotation the said deficiency may 
 occur; saving their right to compensation for injuries, to diminu- 
 tion of water-rent, or its equivalent as above defined. 
 
 "Article 667. Among the diflferent employers, those individuals 
 
OBLIGATIONS OF CANAL OWNERS. 267 
 
 whose titles or rights of possession are most recent, shall first bear 
 the effects of the deficiency of the supply. Among employers 
 equal in the preceding respects, the deficiency shall first affect 
 those whose outlets are at the lowest levels; saving, in all cases, 
 the right of action for compensation against the parties causing 
 the deficiency." 
 
 r/if Kingdom of Italy. — Articles 651 and 652 of the Italian code 
 (see appendix II) correspond with the foregoing, numbers 666 and 
 667 of the Sardinian code, and closely follow them with one excep- 
 tion. 
 
 The second clause of article 652 differs from that of 667, in that 
 the expression does not clearly indicate that the principle of pri- 
 ority by reason of situation on a stream is to be applied. 
 
 AUTHORITIES FOR CHAPTER XI. 
 
 Be B»#o».— [Work cited as an authority for Chapter IX.] See, Vol. II, B. VII, 
 
 Ch. XXXVIII, Div. II, and Div. IV; Ch. XXXIX, Div. II; Ch. XL, 
 
 Div. I; and elsewhere as cited. 
 Smith.— [Work cited as authority for Chapter IX.] See, Vol. II, P. Ill, Ch. I, 
 
 Sees. 1, 12, 3, 4, and 5, and Ch. II ; P. IV, Ch. I, Sec. 3, and Ch. II, Sec. 3 ; 
 
 and elsewhere as cited. 
 Sardinian Code.— [Work cited as an authority for Chapter X.] See, Articles 560, 
 
 641, 642, mS, 614, 645, 646, 647, 664, 665, 666, and 667. 
 Italian Code. — [Work cited as an authority for Chapter X.] See, Articles 545, 
 
 620, 621, 622, 623, 624, 625, 626, 627, 649, 650, 651, 652, 653, and 654; and 
 
 also the annotations to each of these articles. 
 
268 ITALIAN IRRIGA TION LEGISLA TION. 
 
 CHAPTER XII.-ITALY'^'; 
 
 EEGTJLATION 01 DEAIITAGE AND WOEKS OOITNEOTED WITH 
 lERIGATIOir PEAOTIOE. 
 
 Section I. — Regulation of Works. 
 
 Construction of Works on Private Lands. 
 Distances from Boundaries of Estates. 
 Maintenance of Works— Free Passage. 
 
 Section II. — Rights and Obligations of Drainage. 
 Drainage Complications. 
 Principles of the Italian Laws. 
 Provisions of the Codes— Sardinian ; Italian. 
 
 Section III. — Sanitary Legislation. 
 
 The Unheeded Teachings of Experience. 
 Sanitary Effect of Unregulated Irrigation. 
 Regulation of Rice and Meadow Culture. 
 Sanitary Regulations — Modern Legislation. 
 
 SECTION I. 
 
 Regulation op Works Accessory to Irrigation Practice. 
 
 Distances to be Preserved from Boundaries. 
 
 In irrigation regions closely settled and fully developed, ques- 
 tions frequently come before the courts which are rarely, if ever, 
 met with in other countries, and thus arise necessities for provis- 
 ions of statutory law which would be altogether needless elsewhere. 
 Prominent amongst these questions are those relating to the rights 
 of individuals to do as they please with their own property or on 
 their own lands. The class of operations accompanying or form- 
 ing a part of irrigation practice, are peculiarly of a character whose 
 effects are not and cannot always be confined to the possessions of 
 those who carry them out. Indeed, the more important works 
 must necessarily be community works; in nearly all there is a 
 community of interest or a widespread effect, and even works for 
 
REGULATION OF ACCESSORY WORKS. 269 
 
 one's own benefit, solely, on one's own property, not infrequently 
 infringe upon the rights of one's neighbors to an extent that ren- 
 ders it necessary to impose restraint on the acts of individuals 
 in exeivising their rights of propertyship. Instances of this class 
 of legislation ha^-e already been cited in former chapters of this 
 report; notably under the headings concerning springs, and water- 
 rights, wherein the right to excavate, bore, or dig for water on 
 one's own property is limited by law out of consideration for the 
 rights of others having springs, wells, or water supply works on 
 adjoining lands. 
 
 We now come to certain provisions of law which limit the right 
 of indi\'iduals to construct canals and ditches for conducting 
 waters, on their own property. A moment's consideration shows 
 the necessity for the restrictions. The reasons may be summar- 
 ized as follows: 
 
 AVhen canals or sources of supply are situated, as often they- 
 necessarily are, near the boundaries of the tract on which they 
 lie (and which perhaps may be a narrow strip condemned, on 
 which to construct the work onh-), by reason of the permeable 
 nature of soils or subsoils, if parties owning the adjoining lands 
 were allowed to excavate a parallel work as close to the border of 
 their lands as they chose, the waters of the canal or source adjoin- 
 ing might thus be caused to percolate away into the new excava- 
 tion, perhaps at a lower level, to the great injury of him or they 
 who own the source which has produced, or canal which has 
 brought them. Or, by reason of the instability of the soil itself, 
 if persons were permitted to excavate as closely as they chose to 
 a boundary of their lands, the ground itself might be caused to 
 cave away from a canal bed or bank, fountain, or basin in adjoin- 
 ing lands, to the great loss of its owner. And, again, canals used 
 for carrpng waters, liable to the erosive eflfects of their currents, 
 if consti'ucted close to the bounds of one estate, may cut in upon 
 the lands of others, to their injmy; or, being in porous soil, im- 
 part undesired moisture to the lands of others, thus rendermg 
 them unfit for cultivation. As a consequence of experiences of 
 such effects, we find in the laws of northern Italy a number of 
 provisions intended to meet these cases, or to prevent the causes of 
 such conflicts. 
 
 Piedmont. — Amongst the provisions spoken of are the follow- 
 ing articles, of the Sardinian code formerly ruling in Piedmont, 
 
270 ITALIAN IRRIGA TION LEGISLA TION. 
 
 which, after the foregoing introduction, so far as our subject goes, 
 require no further explanation: 
 
 "Article 599. The ditches and canals which the proprietor of 
 an estate may excavate on his own land, shall be placed at a dis- 
 tance from the boundary lines of adjoining estates at least equal 
 to their respective depths, except in cases where local regulations 
 prescribe a greater distance. 
 
 "Article 600. The foresaid distance shall be measured from 
 the edge of the bank of the ditches or canals nearest the boundary 
 lines above referred to. This bank must always have a slope 
 equal to its height, or, in the absence of such a slope, it ought to 
 be provided with retaining works. 
 
 "Where the boundary of an estate is formed by a ditch pos- 
 sessed in common, or by a private road also common, or subject 
 to the servitude of passage, the distance shall be measured from 
 the crest of the bank, as above defined, to the edge, of either the 
 common ditch or road, nearest to the property of the party desir- 
 ous of excavating the new canal or ditch; the obligations regard- 
 ing the slope or revetment of the channel, remaining in full force. 
 
 "Article 601. Should the ditch or canal be excavated in the 
 vicinity of a wall possessed in common, the observance of the 
 foregoing distance is not necessary, but the party excavating the 
 said ditch or canal shall be bound to construct all such interme- 
 diate works as may be necessary for the protection of the wall." 
 
 It will be noticed that these rulings simply prescribe minimum 
 distances to be observed in the location of works. In the judg- 
 ment of the courts as advised by professional experts, in each case 
 a. greater distance might have been insisted upon, or other pre- 
 cautions enforced, as was indeed frequently the outcome in prac- 
 tice. 
 
 The Kingdom of Italy.— Aiticles 575, 576, and 577, of the Italian 
 code (see appendix II), follow closely the foregoing numbers 599, 
 600, and 601 of the old Sardinian code in wording as well as mean- 
 ing; there being only a slight difference in the framing of the sec- 
 ond one of the three, which really does not materially change the 
 meaning, except that the degree of slope required to the bank of 
 a ditch when adjoining a property Une is not determined in the 
 new law, as it was in the old; thus leaving this matter of detail 
 to administrative regulation or judicial decision. 
 
 Obligation as to Construction and Maintenance of Work. 
 
 A very important ruling, in the way of a regulation for the con- 
 struction and maintenance of canal works, was embodied in the 
 
REGULATION OF ACCESSORY WORKS. 271 
 
 Piedmontese law, in the form of an obligation upon the owner of 
 any ditch, canal, or water-course, to so plan, lay out, construct, 
 and maintain it, that neither the work itself nor the flow of its 
 water, should interfere with the free passage of travel on public 
 or private roads or paths, nor with the free flow of waters in and 
 efficiency of other canals or ditches, whether for irrigation or 
 drainage purposes. 
 
 Piedmont. — This provision was made in article 633 of the Sar- 
 dinian code, which was as follows; 
 
 " Article 633. In cases where waters flowing for the benefit of 
 individuals prevent the adjoining proprietors from passing freely 
 to their estates, or check the circulation of water in other irriga- 
 tion or drainage lines, the parties benefiting by the waters are 
 bound to construct and maintain in good order the bridges neces- 
 sary for intercommunication, in a sure and convenient manner. 
 They are farther bound to construct and maintain such culverts, 
 aqueducts, and other like works, as are required for the free prog- 
 ress of irrigation or drainage, saving an agreement or legitimate 
 title to the contrary." 
 
 The Kingdom of Italy. — In framing the new code for Italy, the 
 old Sardinian ruling was closely followed in this particular, as will 
 be seen from article 608 of the Italian code. [See appendix II.] 
 
 SECTION II. 
 
 The Rights and Obligations of Drainage. 
 
 Drainage Troubles in Italy. 
 
 More than in France, Spain, or any other country where irriga- 
 tion has been broadly practiced, in northern Italy the problems of 
 drainage have been ever present in the practical, legislative, and 
 administrative complications which have been developed by it. 
 This has been quite naturally brought about: for irrigated north- 
 ern Italy is a well watered country, both with respect to the num- 
 ber and volume of streams, which course from the adjoining 
 mountains across its plains, sometimes producing widespread and 
 disastrous floods even in the irrigated districts, and also in the 
 amount and regularity of its rainfall. And not only is the coun- 
 try thus well supplied with water by the streams from the moun- 
 
272 ITALIAN IRRIGA TION LEGISLA TION. 
 
 tains, and directly by the rains from the sky, but its subsoils 
 abound with flowing waters which break forth in many living 
 springs thickly scattered over wide regions of its plains. Irriga- 
 tion without drainage, and systematic and thorough drainage too, 
 in northern Italy, would very soon result over the whole country 
 in disaster: financial failure in agriculture, and a general depop- 
 ulation of the country, because of its unhealthfulness. Drainage, 
 then, is not only an essential to individual success in irrigated 
 cultivations, but it is a requisite to the maintenance of the health 
 of populations, and hence we find that it has received very close 
 attention not only as an art, but as a social and political problem. 
 And still again, in most cases, the waters of drainage are not 
 carried to waste — they are property, valuable for the irrigation of 
 other lands, and almost as much in demand for the purpose as are 
 those of springs or rivers. Authorities unite on this point, and 
 so, for present illustration, I cite only one. Baird Smith says: 
 
 "As the necessary complement to an effective system of irriga- 
 tion, arrangements for disposing of the drainage-waters connected 
 with it are essential. It will, I believe, be found in most cases, 
 and I know from experience it is especially so in northern India, 
 that imperfections of local drainage, as connected not so much 
 with the great topographical features of the countrj'-, as simply 
 with irrigation itself, within the limited area it afiects, are more 
 frequently the source of malaria and injury to the land than any- 
 thing else."— [Smith, Vol. II, p. 300. 
 
 In another place, speaking of troubles in the irrigation regions 
 of India, this same author has written: "A comprehensive and 
 authoritative system of drainage in connection with irrigation must 
 be matured, and duly sanctioned by government, before the exist- 
 ing evils can be wholly eradicated."— [Smith, \q\. II, p. 303. 
 
 Principles of the Laws. 
 
 Piedmont— The civil code which ruled in Piedmont contained 
 some very important provisions relative to rights and obligations 
 connected with drainage, yet there was much by way of regula- 
 tion of private and pubHc works, and the acts of individuals 
 governing and affecting drainage matters, that was left to the 
 discretion of the administrative authorities in the execution of 
 their general police power. 
 
 We find in the code express provisions on the following points: 
 (a) The right of natural drainage-way, which assured to the owner 
 
REGULATION OF ACCESSORY WORKS. 273 
 
 of lands the continuation of the privilege to have waters, draining 
 naturally from his estate, flow off on to lands below, as tliey by 
 nature were accustomed to flow, even though they injured the 
 properties l\-ing there. But this right was accompanied by a stip- 
 ulation that such waters were not to be increased artificially; and 
 at the same time by a prohibition upon the owner of the lower 
 lands not to interfere with their flow. (See article 551.) (h) An 
 obligation upon the proprietors of lands where were situated chan- 
 nels or embankments serving for or necessary to the preservation 
 of efiicient drainage, to keep such works in repair, (c) An obli- 
 gation on these proprietors to construct new or additional works, 
 such as might be necessary for the preservation or protection of 
 the existing structures, channels, or banks, (d) An obligation on 
 all land proprietors to keep the water-courses and channels through 
 their estates clear from such deposits or accunmlations of material 
 as might interfere with the free escape of the waters, and thereby 
 cause damage to their neighbors, (c) The right of interested par- 
 ties, suffering or threatened in their estates with damage by reason 
 of the necessit}' for repairs to works, the removal of deposits or 
 clearance of channels, situated on others' lands, to go on to such 
 lands, and themselves make the repairs, removals, or clearances, 
 f/j The right of the party thus in peril by reason of the necessity 
 for additional protective or other works, to go on the lands of an- 
 other and there construct them. (See articles 552, 553.) (g) An 
 obligation upon all land proprietors interested in the maintenance 
 of channels and embankments, or the preservation of free escape 
 for drainage waters, to contribute in proportion to the extent of 
 their interests, towards the expense of such maintenance and clear- 
 ances. Ch) The indi%ddual right of proprietors interested in such 
 works and channels to proceed for the recovery of damage result- 
 ing to them by injury to the works, or by obstructions made or 
 caused to form in the channels, against the party, or parties, caus- 
 ing such injury or formation. (See article 554.) 
 
 But the rights (e) and (j) were accompanied by the stipula- 
 tions: That, in exercising them, the property of others was not to 
 be injured. That, before exercising them, special authority should 
 be had from competent local administration, or judicial officers. 
 And that all interested parties be heard by such officer before the 
 authorization should be issued. And the declaration of these rights 
 
 18> 
 
274 ITALIAN I R RIG A TION LEGISLA TION. 
 
 m 
 
 was also accompanied by that of an obligation, on the part of par- 
 ties desiring to exercise them, to conform to administrative regu- 
 lations applying to the water-courses, or other channels, or works 
 of the locality. (See articles 552, 553.) 
 
 The foregoing points were embodied in the Sardinian code which 
 ruled in Piedmont, in the articles here presented for reference: 
 
 " Article 551. Lower lands are subject towards those which are 
 higher to receive all the waters which flow naturally, and without 
 the aid of artificial works, from such higher lands. 
 
 " The proprietor of the lower estate shall not raise any embank- 
 ment whereby this escape may be interfered with. 
 
 " The proprietor of the upper estate shall refrain from doing any- 
 thing whereby the servitude of the lower land may be aggravated. 
 
 " Article 552. When the channels or embankments which serve 
 to contain waters within an estate are broken down or destroyed, 
 or when variations in the course of the water render defensive 
 works necessary, and the proprietor of the estate fails to restore 
 the channels and embankments, or to construct the required works, 
 then those who shall suffer injury, or shall be in imminent danger 
 of it, can cause the works to be executed at their own expense; 
 they can avail themselves of this power, however, only on the con- 
 dition that the proprietor of the land on which the works are to be 
 constructed shall suffer no damage; they must, furthermore, re- 
 ceive beforehand the permission of the competent authority, to be 
 given after the parties interested are all heard ; and also must con- 
 form in all cases to any special regulations which affect the man- 
 agement of the waters. 
 
 "Article 553. The same rule shall apply when it is considered 
 desirable to destroy or remove any obstacle to the free escape of 
 waters, in the form of deposits or collections of other materials, 
 within an estate, or in a private water-course, the existence of 
 which threatens injury to adjoining lands. 
 
 "Article 554. All the proprietors who have an interest in main- 
 taining the channel and embankments, or removing the obstacles 
 referred to in the preceding articles, may be called upon to bear 
 their shares of the expense incurred, which shall be rated on each 
 in proportion to the benefit he receives from the works. In every 
 case the proprietors shall have the power of proceeding individ- 
 ually against the party or parties who may have caused the de- 
 struction or choking up of the channels referred to, for the amount 
 of the expenses incurred, and for compensation for damages 
 caused." 
 
 In addition to the preceding clauses expressly pertaining to the 
 subjects of the natural right of drainage, and the obligations or 
 rights of proprietors, relevant to the maintenance of drainage 
 work^ and channel-ways, the Sardinian code made provision for 
 
REGULATION OF ACCESSORY WORKS. 275 
 
 the acquirement on the part of indi\'idual land proprietors, of the 
 right, as a servitude, of conducting drainage waters across the 
 properties of others, and for the acquirement, by condemnation, 
 on the part of works declared to be of public utility, of titles to 
 the necessary strips of lands for purposes of construction of drain- 
 age works of all classes. These provisions and others relating to 
 rights of way for drainage will be treated of in the chapter about 
 rights of way for waters generally. Another branch of this class 
 of legislation is the regulations relating particularly to sanitary 
 matters, and which will be noticed in the next section of this 
 chapter. 
 
 Loiiibardy. — This subject of drainage was of great importance 
 in Lombard}'^ as well as in Piedmont, and commanded special 
 attention, of which some evidence will be found in the third di^'is- 
 ion of the general law of that country, concerning irrigation asso- 
 ciations, transcribed in the chapter wliich follows this; but it is 
 unnecessary to go into the details of the Lombardian legislation 
 or even re\-iew it generally, because of the similarity of its prin- 
 ciples to those already noted. 
 
 The Kingdovi of Italy. — The new code for all Italy, superseding 
 the laws for Piedmont and for Lombardy, makes equalh' full pro- 
 vision for the interest of drainage. (See appendix II.) Ai-ticles 
 536 to 539, inclusive, contain matter to almost exactly the same 
 effect as the articles 551 to 554 of the Sardinian code, already 
 analyzed. The subject of right of way for drainage waters, as 
 will be seen hereinafter, in the chapter on rights of way, is also 
 quite as fully considered. 
 
 SECTIOX III. 
 
 Sanitary Legislation. 
 
 The Unheeded Teachings of E.rperience. 
 
 Xo branch of legislation affecting irrigation interests, under the 
 several goverrmients of northern Italy, has been more often the 
 field of enactment than that ha^^ng for its object the preservation 
 or promotion of good sanitary conditions in irrigation regions; nor 
 has any other Une of irrigation legislation been subject to such 
 fi^equent fluctuations and amendments, or to such radical changes. 
 
276 ITALIAN IRRIGA TION LEGISLA TION. 
 
 The necessity for this class of legislation has been the result of 
 the gradual development of irrigation without proper system in 
 the arrangement of works and without due care in the manage- 
 ment of the waters and cultivations; it has been the natural out- 
 come of a practice wherein every individual has striven for his 
 own special advantage, and no consistently and constantly-acting 
 overseeing power has cared for the interests of all, by guiding or 
 controlling a little the actions of each. 
 
 To the reader of the annals and the observer of the develop- 
 ment of irrigation, reclamation, and drainage practices, it cannot 
 but seem that no people ever would or ever will profit by the 
 former experiences of others in the lines of their intended en- 
 deavors. In our day and country one daily sees or hears of pro- 
 jects, theories, or practices, being put forward, the like of which 
 have elsewhere long ago been tried and proven unprofitable, in- 
 adequate, or harmful. Personal experience or observation seems 
 to be the only teacher in these lines of knowledge, which those 
 who embark in hydraulic agricultural enterprise admit to their 
 counsel. Professional knowledge of or technical data concerning 
 what has been done elsewhere, with its results and lessons, it 
 would appear have no existence. Superficial observation and 
 blind experiment, guided by the illimitable self assertion of the 
 times, which a plethoric purse prompts or narrower views of self 
 interest stimulate, guide some of our most important enterprises; 
 others are reined by those who look to immediate self aggrandise- 
 ment, without reference to the legitimate outcome at all; still 
 others, by those who do not know but that the field of their expe- 
 rience is almost a virgin one, and that irrigation, for instance, is 
 a Californian invention. 
 
 Seeing that these great interests are here developing under such 
 influences, what must have been the surroundings of the growth 
 of irrigation in Italy several centuries ago, we may well imagine. 
 That the circumstances were unfavorable to the realization of the 
 best results, we may well understand; that the results in many 
 respects were very bad, there is ample evidence at hand. 
 
 Sanitary Effect of Unregidated Irrigation} 
 
 Not only is all irrigation, where conducted without adequate 
 natural or artificial drainage of the soil, and as ordinarily prac- 
 
 1 Marsh; Eept. Dept. Agri. 1874, p. 366; Smith, Vol. II, pp. 219-224,319-328, 
 and elsewhere m Vols. I and II; De Bnffon, Vol. II, pp. 151-161, and 339, et seq. 
 
SANITAR Y REG ULA TIONS. 277 
 
 ticed to effect an3d:hing like a full development of the capabilities 
 of lands, in the course of a few years, harmful and injurious to 
 the healthfulness of the irrigators and residents of the region irri- 
 gated, but certain cultivations in themselves are unhealthful, and 
 necessitate the use of waters in a manner which specially produces 
 an unsanitary condition of their neighborhood. Trouble of this 
 character made itself apparent in Italy during the fifteenth cen- 
 tury, and following upon the introduction of rice cultivation which 
 had been brought into the Venetian pro\dnces in the early part of 
 the century, from Spain. Now, the experience in Spain should 
 have constituted a lesson for the Italians, but it did not. Rice 
 had been brought into Spain by the ^Nloors full two centuries before, 
 and its cultivation had been the cause of most serious fever epi- 
 demics and such widespread alarm that regulative measures had 
 been enacted from time to time, and at other times the cultivation 
 had been prohibited altogether by royal decree, and then again 
 allowed under stringent rulings as to locality and the provision of 
 proper drainage. 
 
 In general terms, this same experience has been repeated in 
 Italy. The cultivation of rice was first introduced upon marshy 
 tracts unsuited for other cultivation, without expensive reclama- 
 tion and drainage, and at localities somewhat remote from thickly 
 settled districts. It then spread, by degrees, into the lands irri- 
 gated from the great canals, and in the best neighborhoods of the 
 country, approaching the gates of the large cities and the villas of 
 the upper classes of society. Fever epidemics became more and 
 still more prevalent, and manj- cases of low fever were always 
 present, even when not epidemic, so from time to time there arose 
 most violent opposition to rice cultivation at all, and there was a 
 constant demand for its regulation. 
 
 Legislative Regulation of Rice Culture. 
 
 Lomhardy. — In Lombardy the earliest irrigation sanitary regu- 
 lation of which there is record was promulgated in 1575. It took 
 the form of restricting rice cultivation to certain areas, and pro- 
 hibited it within certain distances of inhabited places. From that 
 time on to the beginning of this centm-y the records bristle \nth 
 regulations promulgated, modified, annulled, and reenacted. In 
 the territory of ^Milan, for instance, in 158;-! the cultivation of rice 
 was absolutely prohibited. In 1593 this was modified by a regu- 
 
278 ITALIAN IRRIGA TION LEGISLA TION. 
 
 lation forbidding rice cultivation within six miles of the city of 
 Milan and within five miles around every other town; and at later 
 dates these distances were successively increased and diminished 
 as the rice cultivators found favor by fair means or foul with the 
 rulers, and as the healthfulness of the country ijermitted popular 
 sentiment to cool off on the subject, or the unhealthfulness roused 
 the people to vigilance again. In 1630 a frightful pestilence swept 
 over the province of Milan. Rice cultivation was again prohibited 
 for a short time, but again became prevalent. At a later date the 
 distances from the cities, within which rice might be cultivated, 
 were reduced from "long" miles to the same number of "short" 
 miles, and these were to be measured from the centers of the 
 towns and not from the ramparts. And so matters ran on until 
 the beginning of the present century, when Napoleon, formulating 
 the experience of the past and calling to his council the best in- 
 formed people of the country, promulgated the regulation which 
 remained as the law of the land up to the time of consolidation of 
 the present government of all Italy, and then become the founda- 
 tion in part for the newer and present rulings. 
 
 Piedmont. — In Piedmont the sanitary regulation of irrigation 
 was first seriously attempted in 1608, when the cultivation of rice, 
 in any part of the kingdom, was prohibited, except it be by special 
 royal permit; and it was stipulated that lands to be used for rice 
 cultivation should be confined to those unfit for producing any 
 other crop, and should be situated at least about four and one 
 
 I half English miles from any town or village, and six hundred and 
 fifty yards from any road; that the consent of the heads of two 
 thirds of the families in the commune should be obtained in each 
 
 . instance; and, there should be an obligation on the part of the 
 holder of the permit to secure and maintain perfect drainage for 
 his fields, under the supervision of the government engineers. 
 There were heavy fines named for violators of this law, and other 
 provisions made for its enforcement. 
 
 This species of culture had already grown to considerable mag- 
 nitude in certain parts of the country, and there was much capital 
 interested in the lands and canals devoted to it, consequently 
 there was a perfect storm of opposition to the law. The chroni- 
 cler, hereafter to be named, says that '' comiDlaints rained down" 
 upon the government authorities, so that in 1663 the order was 
 modified so as to prohibit the cultivation of rice within four and 
 
S ANITA R Y RE G ULA TIONS. 279 
 
 one half miles of Tiirin, three miles around Vercelli, nine hundred 
 yards from other towns, and seventy-live yards from the roads. 
 Then, in 1667, the cultivation was absolutely forbidden in certain 
 parts of the country. And thus the historj' goes with alternate 
 prohibitions, limitations, regulations, and licenses from that time 
 down to the year I800, when a commission or committee of the 
 senate of Sardinia was appointed to inquire into and report on the 
 whole matter. This committee reported a history of the legisla- 
 tion of the subject, from which the foregoing brief recital has been 
 drawn, and it then expressed its opinion and made its recommen- 
 dations, in language substantially as follows: 
 
 " Three conclusions appear to us to be deducible from the rapid 
 re^-iew just given of the laws affecting rice cultivation, wliich have 
 grown up among us during the course of two centuries and a half. 
 
 ■"First, that the sole remedy against the insalubrity of rice irri- 
 gation, which has been applied in practice, has been to keep it at a 
 distance from inhabited places; but that the limit of this distance 
 has been increased or diminished in a manner wholly arbitrary, 
 and without reference to any theoretical principles or experimental 
 results which warrant the terms selected. We say this was the 
 sole remedy, because, although the laws ordain that free passage 
 shall always be insured for the water, no speeitic plans for drain- 
 age were either suggested or enforced ; and the districts where rice 
 cultivation prevails, remain still unpro^-ided with this important 
 means of securing their salubrity. 
 
 " The second inference which appears to the committee, no less 
 than the first, is, that a remedy which has been altered inces- 
 santly, and at brief intervals, cannot be regarded as a successful 
 one. since it must have failed to produce the results anticipated 
 from it by those who tried it in the various forms. 
 
 " Thirdly, it is clear that throughout the entire progress of om- 
 legislation it has alwaj'^s been found necessary in endeavoring to 
 Umit the extension of rice irrigation to respect the interests which 
 have grown up in spite of the laws, and to sanction the continu- 
 ance of the culture in places where it had been established for 
 
 considerable periods. 
 
 *********** 
 
 "The discontents and difficulties created have been such as 
 invariably to force the government to modify its orders and to 
 admit so many exceptions, as, in point of fact, rendered the laws 
 nearly inoperative. 
 
 " If, therefore, the ancient laws do not supply examples of suc- 
 cessful remedies which we can imitate: if, further, the facts on 
 which a definite law could be founded so as to secure the con- 
 fidence and respect of all parties concerned do not at this present 
 moment exist, the committee is of opinion that measures should 
 
280 ITALIAN IRRIGA TION LEGISLA TION. 
 
 be taken to collect such facts, and that all attempts at final legis- 
 lation should be deferred until this preliminary inquiry has been 
 satisfactorily completed. 
 
 " On the other hand, the committee is distinctly of the opinion 
 that certain conditions should be attached to permissions to form 
 new rice lands; and, pending the collection of facts on which a 
 final law may be based, they think that a temporary measure 
 may properly be sanctioned. They therefore recommend that 
 the project now submitted be passed by the senate, with the 
 modifications which have been suggested by the committee." — 
 [Smith, Vol. II, p. 326. 
 
 The measures recommended by the commission were enacted 
 into law, and remained as the rule of the country, until it was 
 merged into the present kingdom of Italy. The chief points in 
 this law will be given under the next subheading of this chapter. 
 
 Sanitary Regulations — Modern Legislation} 
 
 As I have before remarked, the necessity for regulation of irri- 
 gation, because of sanitary reasons, did not apply only to rice 
 cultivation, although these great contentions and oppositions have 
 come up over attempts to prohibit or put a limit on the extension 
 or continuance of the irrigation of this crop. The modern regula- 
 tions providing for the preservation of sanitary conditions in Lom- 
 bardy, specially applied to all meadow cultivations by irrigation, 
 as well as to the fields devoted to rice raising. I here present an 
 abstract of their principal points, and then pass on to the laws 
 proposed by the committee above quoted, and voted by the senate 
 of Sardinia for Piedmont. 
 
 Lombardy. — The following is an abstract of the principal points 
 of the irrigation sanitary regulation for Lombardy— promulgated 
 under a law of 1809. 
 
 The establishment of new rice fields without special permission 
 of the prefect of the department, was prohibited under pain of a 
 heavy fine upon both the owner of the land and the tenant. Per- 
 mits were granted for such establishments only on lands situated 
 at least five miles from the capital of the kingdom, three miles 
 from towns of the first class and fortified places, and one and a 
 quarter miles from towns of the second class, and five hundred 
 and fifty yards from the smallest towns; and these distances were 
 to be measured at right angles from the exterior limits of the 
 
 1 See, Smith, Vol. II, pp. 225-231, and 328-331; also, De Buflfon. 
 
S ANITA Ji Y REGULA TIONS. 281 
 
 towns. Cultivations of rice already existing within the limits 
 specified from the capital were to cease within three years after 
 the promulgation of the decree, and the lands be cultivated in 
 other crops, under pain of a heavy penalty. Those existing within 
 the limits prescribed from other places, were to be subject to fur- 
 ther regulation after due inquiry in the communes where situated. 
 All rice cultivations were to be conducted in accordance, as to 
 •drainage, with regulations prescribed for each case. 
 
 The establishment of meadows, whether constantly or periodic- 
 ally irrigated, was prohibited within the limits of thickly inhab- 
 ited places, and all such meadows were ordered abolished and the 
 cultivation changed before the expiration of the then present year. 
 Permits for the establishment of meadows were to be granted only 
 for lands situated at least eleven hundred yards from the walls 
 of the capital city, and five hundred and fifty yards from those of 
 other places; and in accordance with plans which were intended 
 to insure proper drainage of the fields and disposal of the drainage 
 waters. 
 
 Other regulations dated in 1817, prescribed the forms necessary 
 to be observed in applying for and obtaining these permits — 
 amongst which were the submission of plans of the fields to be 
 laid out, examination of them and of the grounds by the govern- 
 ment engineers and local authorities, publications of intention, 
 hearings of opposition, reports of engineers and local officers, etc. 
 
 Piedmont. — The law reported by the committee, and passed by 
 the Sardinian senate in 1855, and of which mention has been here- 
 tofore made, contained points as follows: 
 
 A registration of rice cultivations was to be enforced, and heavy 
 penalties were prescribed for the establishment or continuance of 
 rice irrigation on fields not registered. Rice fields established 
 before the year 1848 were permitted to remain; those established 
 after that date, except as by the law provided, were subject to 
 abolition, and their owners to fine and imprisonment. All rice- 
 cultivated lands were to be drained in accordance with plans to 
 be submitted to and approved by government authorities and 
 engineers. No new rice cultivation was to be allowed within cer- 
 tain prescribed limits of towns and cities of different classes, and 
 all rice-cultivated lands were to be surveyed for registration, and 
 their healthfulness assured so far as possible by proper drainage 
 and use of waters. These were the chief provisions of this Pied- 
 
282 ITALIAN IRRIGA TION LE GISLA TION. 
 
 montese law, but there were many others which related to forms 
 and details ofadministration. 
 
 The Kingdom, of Italy.— By a law of the 12th June, 1866,' the 
 present government of all Italy' determined that the cultivation of 
 rice should be permitted beyond certain prescribed distances from 
 collections of houses and under conditions as might be determined 
 in each province. This law provides that special regulations to 
 the above points being agreed upon by the municipal and sani- 
 tary boards of the province, and revised by the superior sanitary 
 council and the council of state, might be considered and adopted 
 by the provincial council and afterwards receive the sanction of 
 the King; and the law directed that such action should be taken 
 in each province within six months after its passage. 
 
 Any person desiring to cultivate rice is required to give notice 
 to the prefect of the province, according to fixed forms, and at 
 certain times of year, and this apphcation is immediately trans- 
 mitted to the proper council. This municipal council will, within 
 ten days, declare as to whether or not the terms of the established 
 regulations are to be complied with in the proposed new work, 
 and, if not, it will point out what mu.st be done. The applica- 
 tion and report of the council are then published and forwarded 
 through the various departments or branches of government, be- 
 ing subject to opposition and change until finally approved by the 
 King. Promptness of action is insured by a provision that should 
 the matter not be finally reported upon within one month after the 
 report of the municipal council, the cultivation of the rice cannot 
 be stopped for that year. The provincial authorities are given 
 power to stop all rice cultivations not conforming to the terms of 
 the law and regulations; and persons violating these may be sub- 
 jected to a fine as high as 200 lire for each ettari (about $16 per 
 acre) wrongfully cultivated. 
 
 Thus, the government of Italy has provided a law in general 
 terms, on this subject, and has left the initiation of details, as to- 
 specific regulations, to the several provinces, or states as we may 
 say, but still retains for itself the power of modification or sanc- 
 tion of whatever may be proposed. The regulations thus locally 
 proposed vary in a considerable degree, as is natural, and per- 
 haps necessary, under the diversified conditions of the country, 
 
 ^ Laws and Regulations, received from tlie ministry of public works, Italy. 
 
SANITAR Y REG ULA TIONS. 283 
 
 they should, but the tendency of the central supervision is to pro- 
 duce uniformity, and do away with unfsvir local influences and 
 prejudices. Enough has already been said to show the character 
 of regulations adopted in the principal irrigation provinces, so the 
 subject will not be pursued further in its connection with irriga- 
 tion legislation. 
 
 AUTHORITIES FOR CHAPTER XII. 
 
 Smith. — [Work cited as an authoritj' for Chapter IX.] See, Vol. II, P. IV ; Ch. 
 
 I, Sees. 2, 4, and 6; Ch. II, Sees. 4 and 6, and elsewhere. 
 De Buffon.—rWor'k cited as an authority for Chapter IX.l See, Vol. II, B. VII, 
 
 Ch. XXXVIII, Divs. I and iV, and Ch. XL; B. VIII, Ch. XLV, Div. 
 
 Ill; andCh. XLVI. 
 Marsh. — "Irrigation: its evils, the remedies, and the compensations." By Geo. 
 
 P. Marsh (D. S. Minister to the Court of Italy, author of "The Earth, 
 
 as modified by human action," etc.) See, Rept. Dept. of Agriculture, 
 
 1874. 
 Sardinian Code. — [Work cited as authority for Chapter X.] See, articles 599, 
 
 600, 601, 633, 551, 552, 558, 554. 
 Italian Code. — [Work cited as authority for Chapter X.] See, articles 575, 576, 
 
 577, 608, 536, 537, 538, 539, and remarks appended to each. 
 Laws and Decrees. — [Collection referred to as an authority for Chapter VIII.] 
 
 See, General Law of Public Works ; also. Law concerning Rice Culture. 
 
284 ITALIAN IRRIGA TION LEGISLA TION. 
 
 CHAPTER XIIL-ITALY 
 
 ■(5), 
 
 THE RIGHT 01 "WAY TO OOUDUOT WATEES. 
 
 Section I.— The Ancient and Modem Laws. 
 
 Ancient Laws, Milan, 1216; Venetia, 1455. 
 Piedmont— Code of Charles Emanuel, 1770. 
 Modern Laws— Lombardy, Laws of 1804 and 1806. 
 Piedmont— Sardinian Civil Code, 1837. 
 The Kingdom of Italy— Civil Code, 1865. 
 
 Section II.— Tftc Servitude of Right-of-Way for Wafers. 
 Nature of the Right as a Servitude. 
 Forms of the Question iireseuted. 
 The Eight of Aqueduct across Lands. 
 The Right of Aqueduct across other Canals. 
 The Right of Aqueduct by a Common Channel. 
 The Right of Aqueduct for Drainage Waters. 
 
 Section 111.— Condemnation of Way for Works of Public Utility. 
 Piedmont — Sardinian Civil Code. 
 The Kingdom of Italy— Civil Code. 
 Expropriation Laws. 
 
 SECTION I. 
 
 The Ancient and Modern Laws. 
 
 Eight of Aqueduct — Some Ancient Laws} 
 
 The necessity for a legal method whereby readily to obtain the 
 right to conduct water from a source or head of supply, across 
 lands the property of others, and to construct and maintain works 
 therefor on such lands, presented itself at a period very early in 
 irrigation experience in Italy; indeed, it is probable that the real- 
 ization of this point was transmitted to the Italians in some law 
 of custom from the experience of the Romans. 
 
 " From all time the conducting of water for irrigation has been 
 recognized as having been of special public use, which, without 
 
 See, Smith ; also, De Buffon. 
 
ANCIENT RIGHT-OF- WA Y LA WS. 285 
 
 giving so extensive a right as appropriation, justified a notable 
 curtailment of the rights of property." — [De Buffon, Vol. II, p. 267. 
 
 The mritns aquse (htctns of the Romans has reappeared in Italy 
 as the diritto d'acquedotto, and, so far as known, commencing with 
 the active extension of some great canal works, in the Milanaise 
 province in the twelfth century, as a friendly sufferance on the 
 part of landholders anxious to see the enterprise go on, it has de- 
 veloped into a well defined and thoroughly established feature in 
 the division of servitudes established by process of law. Although 
 thus allowed at a very early period, the right to cross the estate 
 of another with a canal or ditch was for a long time the subject of 
 grave dispute in northern Italy. The several provinces were not 
 of the same mind on the subject, nor yet were the various parts 
 of the different provinces, united. 
 
 Milan. — Commencing, as a custom, so far as known, in the Mi- 
 lanaise province of the country now known as Lombardy, we find 
 there the earliest recorded recognition of it in the form of law. 
 This is in a code dated in 1216, which contained articles on the 
 point, substantially as follows: 
 
 "1. Whoever has the right to obtain waters from springs or riv- 
 ers, or in any other manner whatsoever, may carry it through the 
 fields and farms of any individual, commune, or public corpora- 
 tion in this state, and also across the public roads. 
 
 " 2. To this end he may construct canals or channels and the 
 other necessary works, at the least possible inconvenience and in- 
 jury to the proprietors of the farms, paying one fourth more than 
 the true value of the land thereby occupied. 
 
 " 3. In addition he must repay all damages caused by the works, 
 according to the estimate of two practical men; provided, however, 
 that the compensation for damages shall in no case exceed twice 
 the value of the property damaged. 
 
 "4. He shall be bound to maintain in sufficient repair, at his 
 own expense, the bridges and drains required for the passage of 
 water, whether on the farms or across the roads, so that these latter 
 shall suffer no injury, especially in rainy weather. 
 
 " 5. The water may be conducted or caused to pass above or 
 below the canals previously existing, new channels of brick and 
 lime being made for it in such manner as that the water flowing 
 under shall not be mixed with that flowing over, or that flowing 
 in the preexisting canals. 
 
 " 6. The new charmels niust be maintained in such condition as 
 that the proprietor of the water at the upper levels shall saffer no 
 damage from the reflux of the same. The water shall have a free 
 and unobstructed course." 
 
286 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Old as is this law, it will be seen, as this matter in hand is traced 
 forward, that it contained all of the essential principles of a com- 
 plete code on the subject, and has only been amplified, but not 
 very greatly added to since. 
 
 Venetia. — In 1455 the venerable senate of the republic of "N^enice 
 passed a law on this point for application in its province of Verona, 
 whose provisions were as follows; 
 
 " Whoever shall obtain the right of establishing an irrigating 
 channel, may demand a passage for the water across the land of 
 any other person, paying, however, to the proprietor, twice the 
 value of the land occupied. This value shall be fixed by experts 
 chosen by the parties interested; and it shall be payable in ad- 
 vance, unless the proprietor of the land is willing to grant delay 
 of payment. 
 
 " On due appraisement and offer of payment the transfer of the 
 land is made obligatory, and should be effected by proper docu- 
 ments; but should the proprietor refuse, the administrative author- 
 ity may adopt compulsory measures, because the right to the 
 possession of the land for this purpose exists without reference 
 to the inclinations of individuals, corporations, or communities; 
 and possession obtained in the execution of the present statute 
 shall be held good and sufficient as against the grantee. 
 
 "In the case of a proprietor refusing all acquiescence in the 
 possession thus granted, and declining to receive the price of the 
 land fixed as above prescribed, this price shall then be deposited 
 with the authorities, and immediately thereafter the works of irri- 
 gation may be begun. When parties difl'er as to the proper posi- 
 tion of the channel, the experts must always select the place least 
 injurious to the property traversed; and the same rule must be 
 observed in case of disputes about the location of channels sanc- 
 tioned prior to the publication of this statute." 
 
 Piedmont. — Some ancient Piedmontese legislation on this sub- 
 ject is found in a clear form in the code of Charles Emanuel, 
 published in 1770, as follows: 
 
 "Every commune, corporation, or individual whatever, shall be 
 bound to grant a passage through their lands for waters legiti- 
 mately derived from rivers or fountains, whether for irrigation or 
 machinery. This passage shall likewise be granted through ex- 
 isting canals and water-courses, pro^dded always that this opera- 
 tion shall cause no injury to the proprietors of these canals, and 
 shall in no way impede the free course of their own proper waters. 
 Whoever claims a passage for his water-course across the property 
 of another ought to effect the same with the least possible injury. 
 The proprietor of the water shall pay the value of the soil occu- 
 
ANCIENT RIGHT-OF- WA V LA TVS. 287 
 
 pied, with one eighth in excess, as estimated by professional men. 
 He shall further repair all damages he may cause, or pay the full 
 value of the same. 
 
 "When a channel intersects another canal or water-course of 
 any kind, the passage shall be effected either above or below, by 
 means of appropriate works. The proprietor demanding passage 
 shall be obliged to deposit security for all damages which may 
 be caused by the said works to water-courses or canals previously 
 in existence. This precaution being observed, the proprietor of 
 the land cannot impede the execution of the works, but ought to 
 lend all practical assistance during the period of their construc- 
 tion. The definite settlement of the amount of compensation for 
 damages shall be made on completion of the works. In the event 
 of the construction of the water-course causing a marked dimi- 
 nution of the extent or value of a property, the party claiming the 
 passage shall be bound not only to pay compensation for all in- 
 juries as estimated by professional men, but also to purchase the 
 entire property, should its owner so desire." 
 
 Right of Aqueduct — Some Modern Laws. 
 
 Lombardy. — Following the very ancient Milanese code, which 
 has been transcribed under the preceding subheading as a matter 
 of interest because of its remarkable completeness, considering 
 the time of its production, in all times, down to the beginning of 
 this century, the right of way to conduct water was a prominent 
 subject for legislative and administrative consideration by the 
 various governments and rulers who held dominion in the states 
 of northern Italy. Particularly was this so in Lombardy; and 
 especially complete does the history appear to be of the various 
 phases which the question assumed, and the steps taken in con- 
 nection with it. Of all the lines of administration, however, that 
 which was under the guidance of Napoleon treated this subject 
 most fully, and in the most advanced spirit. The law for the 
 administration of the waters of the Lombardo-Venetian kingdom, 
 promulgated by him in 1804, was the most complete and satisfac- 
 tory to all parties interested that the country had ever had. And 
 this, together with administrative decrees made under it, and 
 dated in 1806, made up the system governing rights of way for 
 water. 
 
 In after years (1816), when under other rule, the Austrian civil 
 code was promulgated for this same kingdom, the good principles 
 of the Napoleonic law, and its predecessors on this point, were 
 overlooked, and great trouble resulted. It was considered that 
 
288 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Lombardy had lost a most essential feature of her administrative 
 legislation; and appeal after appeal went hence to the ruling 
 power to reestablish the ancient principles and regulations. Cases 
 wherein their absence wrought serious hardship to individuals, 
 and detriment to the agricultural welfare of the country, were 
 carried before the Aulic council, at Vienna; and finally, by the 
 advice of that superior administrative body of the Austrian gov- 
 ernment, the question was set at rest; and the former law of 1804, 
 and the several decrees on the same general subject which had 
 closely followed it, were reestablished by an imperial decree in 
 1820. 
 
 De Buffon says: "The deliberations of the Aulic council were 
 remarkable for their equity as well as for the enlightened views 
 expressed, including amongst other reasonings, the following con- 
 siderations: 
 
 " ' Running waters in that country (Italy) are necessary to the 
 nourishment of the land; they increase its fertility and assure the 
 products. * * * Where water is so useful and contributes so 
 powerfully to the growing of the products of the soil, doubts of its 
 influence on the public prosperity should not be raised. * * * 
 The new civil code should and does not oppose anything on this 
 subject contained in the former laws and regulations. * * * 
 Hence, under the terms of this Austrian code, they should, and 
 do, remain in force.' " — [De Buffon, Vol. II, p. 305, quoting the 
 decision. 
 
 The following are the provisions on this point of the law of 1804, 
 thus re-declared to be the rule for Lombardy: 
 
 " Article 51. Every individual is bound to cede the land neces- 
 sary for the channels, the rectifications of the directions, the alter- 
 ation of the courses, or the embankments of rivers, canals, or public 
 drainage channels; and, in general terms for all works connected 
 with water, which are designed for the public good, receiving 
 compensation for the same at a reasonable rate. 
 
 " Article 52. Whoever desires to make use of waters, public or 
 private, of which he is the legitimate possessor, for purposes of 
 agriculture, or for the movement of machinery and hydraulic 
 works, may carry them across the lands of others, paying the value 
 of the soil occupied by the canal, according to an estimate of the 
 same, with one fourth in excess; and coming also under an obli- 
 gation to maintain the said water-course, banks, works, etc.; and, 
 further, to indemnify the proprietor of tlie land for all damages 
 whatsoever which the said land may sustain. 
 
 " Article 53. Such water-courses should be carried across the 
 portion of the estate where, according to the judgment of practical 
 men, the least possible injury shall be caused to the proprietor, or 
 
ANCIENT RIGHT-OF- WA V LA WS. 289 
 
 possessor, reference being always had, however, to the convenient 
 derivation of the water." 
 
 In addition to the foregoing, the law of 1806, also reestablished 
 in 1820, contained the following provision on this subject: 
 
 "Article 16. Whoever desires to introduce water into a public 
 canal, with the view of taking it out again at a lower point, shall 
 submit his claim to the direction-general. It will be decided so 
 as to cause no injury to the rights of other parties. Objections to 
 such arrangement will be disposed of by the public administra- 
 tion." 
 
 These laws formed the basis and principal part of all legislation 
 on this subject in Lombardy down to the time of the promulgation 
 of the Italian code in 1865. 
 
 Piedmont. — Following the code of Charles Emanuel III, pub- 
 lished in 1770, and herein already transcribed, the legislation on 
 the right of way for waters in Piedmont was contained in the Sar- 
 dinian code of 1837. The very complete provisions of this code 
 are worthy of a closer examination than those of any law which 
 preceded it, and such examination will be given them in the next 
 section of this chapter, where the subject is arranged for comment. 
 
 The Kingdom of Italy. — The present law on this subject for all 
 Italy, is contained principally in articles of the Italian civil code 
 (see appendix II), which will be noticed in the following section 
 of this chapter together with those corresponding in the old code 
 of Sardinia. 
 
 SECTION II. 
 
 The Seevitude of Way to Conduct Waters. 
 
 Nature of the Right} 
 
 The great questions which came up so early in Italy in the 
 matter of right of way for water, were with respect to such right 
 when exercised as a servitude: cases of the legal occupation of 
 one man's property by another, for the purpose of leading water 
 across it in a canal or other conduit, without purchasing title to 
 the property itself. The exercise of such privilege was opposed 
 
 ' See, De Buffon, Vol. II, Ch. XLII, Ch. XLIII, p. 279, and Ch. XLIV, p. 307 ; 
 also, Smith, Vol. II, p. 149. 
 
 19' 
 
290 ITA. LI AN IRRIGA TION LEGISLA TION. 
 
 on the ground of its being subversive of the right of property: no 
 person, it was maintained, should have the power by simple and 
 summary process of law, to acquire a right to continuously occupy 
 for his purposes, any portion of the property of another. Such 
 occupation was virtually a dispossession of one's estate in favor of 
 another. The right of taking private property could only be exer- 
 cised in the interest of the pubUc welfare— for the purpose of pub- 
 lic use. Conducting water for the irrigation of private estates was 
 not a public use. The law defined what was a public use, and 
 made provision for the condemnation of private properties, and 
 the acquirement of title to them, when it was necessary to take 
 them for such use. These were the arguments against the "right- 
 of-aqueduct,'' as it was called. 
 
 On the other hand it was urged, that the application of water on 
 lands so far increased their productive capacity as to make such 
 employment a matter of great public concern and interest; that it 
 was a general necessity in the agriculture of the country; that it 
 could not be used without conducting it across intervening prop- 
 erties; that even the waters of public canals could not be distrib- 
 uted away from those canals without so conducting them in small 
 private canals; that in this connection, certainly, the conducting 
 in such small private ditches was a part of the system of the pub- 
 lic canal, and hence a part of the necessary machinery for the 
 public use of the waters; and that if conducting waters in a small 
 private ditch as a distributary from a public canal was the exer- 
 cise of a public use of the water, then the conducting of water 
 from a public stream in a similar ditch was equally an exercise 
 of a public use of it, and hence an act entitled to the privilege of 
 occupying any property for the purpose, on making due compen- 
 sation. 
 
 Form and Amount of Compensation} 
 
 These questions were hotly discussed for centuries in Italy. As 
 a general thing, the feudal system of land tenure was opposed to 
 the 'exercise of the right to conduct water; and upon its downfall 
 the servitude for this purpose of " aqueduct," and with it irrigation 
 enterprise, received a great forward impulse. It has never been 
 proposed to take property for right-of-way for a canal without due 
 compensation; on the contrary, the custom and law, as well, in 
 
 1 See, De Button, Vol. II, Chs. XLIl and XLIII ; also, Smith, Vol. II, pp. 147- 
 150 and 272. 
 
THE SERVITUDE OF AQUEDUCT 291 
 
 Italy has always been to pay for the simple right of using the 
 strip of land necessary for a canal, at its full value with the addi- 
 tion of a considerable percentage advance. The facts that a canal 
 or ditch across a property not only occupied a certain portion of 
 its area, but oftentimes occasioned its owner inconvenience, and 
 that the presence of the water might be injurious to the land, and 
 other similar considerations, were not lost sight of And, further- 
 more, it was conceded by the advocates of the right, that the use 
 of water for private purposes, although a necessary general use, 
 was not a public use in the true sense. 
 
 De Buffon says: "It resulted from these considerations, that 
 besides the recognition of the right as belonging to an irrigator, to 
 cross with his ditch the property of his neighbor, there was stipu- 
 lated in favor of the persons whose land was thus occupied an 
 equitable regulation which aimed to make amends for the differ- 
 ence of taking property for public use proper, and occupying it for 
 a purpose only indirectly for the public benefit. This rule con- 
 sisted in the payment of a certain stim greater than the value of 
 the land occupied, and the repairing of all damages occasioned 
 by or accessory to its occupation. 
 
 " The amount of the additional indemnity, which is character- 
 istic of the right of aqueduct as established by all modern nations, 
 is variable in its nature, and has been repeatedly modified since 
 its origin in the fifteenth century, and varied between its actual 
 value, and twenty to twenty-five per cent advance. In Lombardy 
 one pays one quarter more than the land occupied is worth; in 
 Piedmont one fifth more, as an indemnity for damage, on values 
 estimated in a friendly way on the opinions of experts." — [De 
 Buffon, Vol. II, p. 279. 
 
 Baird Smith says that, in the earliest form in northern Italj^, 
 the right of passage for waters across lands '' was granted on con- 
 dition that some certain supply of water should be allowed to the 
 proprietor of the land from the canal traversing his property, in 
 exchange for the occupancy of the soil covered by it, the use of 
 which was temporarily lost to him." And he remarks that it is a 
 curious circumstance that the same practice had been inaugurated 
 at the earliest stage of the modern development of irrigation under 
 English rule in India .^ In cases where water was not allowed in 
 exchange for the land occupied, the practice, in Italy, at first was 
 to pay only the value of the land covered by the works, and thus, 
 
 ^ The same custom formed a feature of irrigation development in early times 
 in California; and there now exist perpetual water-rights, in some quarters, 
 granted in return for a crossing of a field by a canal. 
 
292 ITALIAN IRRIGA TION LEGISLA TION. 
 
 rendered useless, but, as time wore on and canals became more 
 plentiful, this bonus has ranged in some quarters as high as fifty 
 per cent on the valuation of the lands. 
 
 Forms of the Right-of-Way Question. 
 
 The primitive question was as to the right of conducting water 
 across agricultural lands in a ditch; and supplementary to this 
 came that of the right to cross with one such conduit the path of 
 another, which acts in the early days of hydraulic works in Italy, 
 before the art of making " syphons " and other structures to facili- 
 tate the crossing was understood, and later when such works were 
 very expensive, oftentimes necessitated the mingling of the waters 
 in one channel and their subsequent separation. And, then, as 
 an outcome of this practice came up a question as to the right of 
 one person, by paying an indemnity, to conduct waters for his 
 benefit in the canal or ditch of another. In addition to these three 
 forms of the right-of-way problem, as connected with the matter 
 of conducting water for use in irrigation, the same questions came 
 up in connection with the right to conduct drainage waters from 
 irrigation, drainage waters from works where such waters had been 
 produced by other than natural causes, and drainage waters pro- 
 duced or accumulated naturally. 
 
 These varied natures, as to origin and purpose, of the waters to 
 be conducted, produced modifications in the treatment which the 
 questions have received, and in the rulings which have been made 
 and incorporated into law on them. These subdivisions of the 
 subject were for the first time all fully treated in the general laws 
 of a country, by the framers of the Sardinian code, which was, in 
 matters relating to irrigation, founded on experience in and the 
 necessities of Piedmont. The present code for all Italy largely 
 followed after this model, so that I am led to present the subject 
 upon the basis of the former law, and then, for each subdivision, 
 point out the comparisons to be made with the latter which has 
 taken its place. 
 
 The Right of Aqueduct Across Lands. 
 
 (Sardinian Code, Articles ti2'2, &'G, eZT, 629, 64O, 66S, and 673; Italian Code, Articles 
 SOS, 602, 60S, 605, 619, 648, and. 666.) 
 
 The provisions of the Piedmontese law, which specially related 
 to the simple right of way for waters across lands, were contained 
 in seven articles, as follows: 
 
THE SERVITUDE OF AQUEDUCT. 293 
 
 Ai'ttdes of the Sardinian Coa'c. 
 
 "Article 622. Every commune, corporation, or individual, is 
 bound to give a passage across their lands to water derived from 
 rivers, springs, or any other sources, by parties having a legal 
 right to the same, and wishing to employ it for irrigation, or for 
 the use of works. Farm houses, with the courts, threshing floors, 
 and gardens attached to them, are excepted from this ruling. 
 ********** 
 
 "Article 626. Whoever desires to carry water across the lands 
 of another is bound to prove that the quantity of water whereof 
 he is the proprietor is sufficient for the purpose to which it is 
 destined; that with reference to the circumstances of the neigh- 
 boring lands, the slopes and other conditions of the channel, the 
 course and the free escape of the water, the line of passage de- 
 manded by him is the most convenient, and at the same time 
 is that which will cause the least possible injury to the estates 
 affected by it. 
 
 "Article 627. The party desirous of carrjdng water over the 
 land of another is bound to pay in advance, and before the con- 
 struction of the canal is commenced, the estimated value of the 
 ground to be occupied, without deduction of the land tax, or any 
 other burdens which may be inherent to the soil, together with 
 one fifth of the said value in excess, and also compensation for 
 immediate damages, including those due to the division of the 
 estate into two or more parts, or any other deterioration which 
 may follow on the crossing of the land. 
 
 " In cases wherein the right of passage is claimed for any period 
 less than nine years, the amount to be demanded by the owner 
 shall be limited to one half the value of the land occupied by the 
 works, with the fifth in excess, and compensation for damages as 
 . above detailed. The claimant shall further come under obliga- 
 tion to restore ever5rthing to its original state on the expiration of 
 the term agreed upon. If the party who has obtained a tempo- 
 rary right of passage should desire to change it into a permanent 
 one, the pajonent of the half value of the land, and the other 
 terms annexed to the former, shall not be taken into account in 
 settling the conditions of the latter. 
 
 ********** 
 
 "Article 629. In the event of the party who has obtained the 
 right of passage for a certain quantity of water, desiring to in- 
 crease the same, he shall be bound to show, first, that his canal 
 has sufficient capacity to carry the greater volume, and that no 
 injury can result to the estate subject to the servitude. When 
 the introduction of the larger volume of water requires the con- 
 struction of new works, the nature and extent of these must be 
 determined, and the value of the soil to be occupied, according to 
 article 627, must be paid prior to the commencement of the said 
 works. 
 
294 IT A LI AN IRRIGA TION LEGISLA TION. 
 
 "Article 640. The servitude of taking water by means of a 
 canal, or other visible and permanent work, for use in agriculture 
 and industry, or for any other object, is included among the num- 
 ber of continuous and apparent servitudes. 
 
 ********** 
 
 "Article 663. The right of passage for water does not give to 
 the party exercising it any right of property, either in the land at 
 the sides or forming the bed of the spring or water-course; and the 
 land tax, with all other burdens attached to the soil, shall be borne 
 by the proprietor of the aforesaid land. 
 
 ********** 
 
 "Article 673. The servitude is extinct if not used for thirty 
 years." 
 
 Tilt Right of Aqueduct Across Lands — Noteworthy Points. 
 
 Piedmont. — The foregoing provisions of the Sardinian code are 
 replete with points worthy of special notice: 
 
 Observe that the right of passage is accorded even to every indi- 
 vidual across the lands of every other individual, municipality, or 
 corporation; and that it is accorded for waters derived from any 
 source whatever; but, under this law, only for the purposes of irri- 
 gation and motive power works. Take notice, at the same time, 
 however, that the right is extended only to those who have a legal 
 right to the waters, and that, hence, in opposition to any such 
 claim of right of way a land owner can force the would-be con- 
 ducter of the water to prove his claim of right to the water itself, 
 before he may exercise his privilege of acquiring a passage way 
 for it. (See article 622.) 
 
 Thus, the water-right claim itself was immediately put upon its 
 merits. There could be no canal until there was a determined 
 right to a definite amount of water to conduct in it; and such 
 rights, as we have seen, could only be acquired by regular issue 
 of privilege, or concession by the government, or by parties con- 
 trolling the use of, or owning, the water; or they could result from 
 ownership of a spring, or other water-source, such as a reservoir, 
 or from riparian proprietorship on a stream not considered of pub- 
 lic importance. Here, then, in these provisions on this collateral 
 branch of the water-right question, was a safeguard against the 
 establishment of works, and of diversions afterwards to be em- 
 broiled in litigation: the right to the water had to be proven before 
 a right for its passage could be acquired. Furthermore, notice the 
 fact that the right could not be acquired for trifling and insuffi- 
 
THE SERVITUDE OF AQUEDUCT. 295 
 
 cient quantities of water: the "proprietor of the" (right to use the) 
 "water" had to prove that he had a sufficiency of supply for his 
 purpose, before he could impose upon his neighbor's estate a servi- 
 tude of passage and the presence of a canal built by virtue of it. 
 
 " Very minute care was taken in the legislation of Piedmont to 
 secure at once the efficiency of works, and the minimum of injury 
 to lands on which they were established. Experience had shown 
 in this country that parties frequently excavated a small well or 
 spring on lands belonging to them; and, though the quantity of 
 water derived from it was very trifling, they claimed the right of 
 passage for it through irrigated fields, or in the vicinity of pre- 
 viously existing canals, with the view of drawing from these 
 sources, by drainage or percolation, an additional supply at the 
 expense of their neighbors." — [Smith, Vol. II, p. 271. 
 
 The provisions which stopped this sort of imposition were con- 
 tained in article 626, where we have found, also, the certain other 
 salutary items next noticed. The location and design of a canal 
 or other conduit for water across the lands of another, had to be 
 in conformity to good judgment, not only with respect to the par- 
 ticular service for which it was designed by its proposed con- 
 structer, but with all due regard to the continued convenient use 
 and fruitful quality of the lands designed to be crossed ; and the 
 determination of these points was, in common with all technical 
 and practical questions, connected with adjustments of irrigation 
 agreements, left to hydraulic or agricultural engineers, as experts.' 
 
 "It became further clear that merely to secure the proprietor 
 of the land from immediate pecuniary loss was not sufficient. In 
 fixing the directions of their irrigation channels, proprietors of 
 water might be influenced by various motives; they might desire 
 to pass through land previously irrigated, that they might have 
 the benefit of infiltration, or over land where there were indica- 
 tions of subterranean spring waters, of supplies from which their 
 canals would derive advantage ; or they might wish to benefit one 
 neighbor by carrying water near his land, or to injure another by a 
 contrary course. The government saw that it would be necessary 
 to place limits on this freedom of choice, and hence originated 
 the rule that prior to any special direction being determined for 
 the canal, CAddence must be laid before the competent authorities 
 that the line selected was the least injurious to all parties con- 
 cerned."— [Smith, Vol. II, p. 150. 
 
 Following out this line of policy, exacting a well determined 
 and defined right in each case where a passage is demanded for 
 
 1 See, Smith, Vol. II, p. 271. 
 
296 ITALIAN IRRIGATION LEGISLATION. 
 
 waters, article 629 of the code, as we may have noticed, recog- 
 nizes the fact that any such right was accorded only for a certain 
 quantity of water and no more, and that when this amount was to 
 be increased, further proceedings had to be conducted, and addi- 
 tional indemnity had to be paid. This provision was made neces- 
 sary by the fact that any material increase in the waters of a 
 canal necessitate its artificial enlargement, endanger its banks 
 and the adjoining lands by overflow, force its enlargement by 
 scouring out its beds and caving down its banks, or cause great 
 additional loss by percolation into the soil of its bed and banks. 
 
 The experience of the country had made these things apparent; 
 and it had also made apparent the fact that right of passage for 
 any limited supply of water having been acquired and paid for, 
 not infrequently its possessors would impose upon the land owners 
 by forcing the flow of the canal, either for temporary convenience 
 to supply some immediate necessity, or with the view of causing 
 a permanent enlargement of the channel, and thereby acquire 
 water-way for a volume of flow materially more thaii they had 
 demanded and acquired the right for at first. 
 
 As will be seen elsewhere in this report, by a provision of this 
 same code, the property owner, in consequence of this same line of 
 imposition practiced by conductors of water, had always the right 
 to demand that the grade plane and cross sectional dimensioiis of 
 a canal through his lands should be fixed at convenient and nec- 
 essary intervals along the line, by permanent and solid construc- 
 tions of masonry, or other unwearing material, so that, at any 
 time, should the canal bed be washed out at intermediate points, 
 it could be reestablished at exactly its former dimensions and 
 grade by means of the guide furnished by the masonry or other 
 solid structures along its line. These structures also served the 
 purpose of guides by which to reis'stablish the section and bottom 
 plane of the canal when each year, in case of silt deposits having 
 occurred, it became necessary to clear it out for the season's work. 
 
 As to conditions attached to the simple right of way for water 
 across lands, it remains only to notice the exception to the enforce- 
 ment of the servitude, which was in the case of passage across 
 gardens, dooryards, or the sites of houses. There was a vigorous 
 fight against this reservation in Piedmont, and, in fact, in some 
 former laws there was no such reservation, but the framers of the 
 Sardinian code took the view that only in cases of works declared 
 to be of public utility — under the right of condemnation and ac- 
 
THE SERVITUDE OF AQUEDUCT. 297 
 
 quirement of title to the land — should a man he disturbed in his 
 house or its immediate surroundings. 
 
 Covipensation for Right of Way. 
 
 Piedmont. — Under the terms of the Sardinian code the proprie- 
 tor who obtained a right of way for waters thereby acquired a right 
 to the use of the strip of land necessary for the purpose, but he 
 could devote it to no other use. He obtained no right of owner- 
 ship in the land itself. The owner of the property retained this, 
 and even had to pay the land tax on it for all time, although he 
 had no use of it. (See, Art. 663.) 
 
 The right of the possessor of the servitude of passage was " a 
 continuous and apparent servitude;" which meant that, unless 
 expressly limited in an agreement, it continued during every mo- 
 ment of all time, even though not exercised continuously — saving 
 the condition imposed on all such servitudes, whereby they were 
 forfeited by non-use for thirty years. (See, Arts. 640 and 673.) 
 
 But, although the right acquired was only one of use, and not 
 •of ownership of the land occupied by the canal or ditch, the pos- 
 sessor of it had to pay in advance the estimated value of the land 
 occupied, without deductions from any cause, together with one 
 fifth of its value in excess, for the right of occupation and use; 
 and besides that he had to pay a sum as compensation for dam- 
 ages to the balance of the estate crossed, by reason of inconven- 
 ience in its use, caused by the presence of the canal or ditch, or 
 by reason of any probable injury caused to lands by seepage, or 
 otherwise. (See, Art. 627.) 
 
 In consequence of this possible damage, also, as will be seen 
 elsewhere, the owner of a canal had to keep it in a certain state of 
 repair and efficiency, and to do all in his power, on demand, to 
 prevent percolations into adjoining lands. And not only had the 
 would-be conducter of water to pay for his original right to cross 
 an estate with his ditch, or canal, but he was limited to the right 
 to conduct the amount of water stipulated and in the canal de- 
 fined, and any exercise of right in excess of such prescribed privi- 
 lege had to be sanctioned by a renewed negotiation and agreement, 
 and obtained by an additional payment. (See, Art. 629.) 
 
 Finally, as may have been noticed, there were provisions for tem- 
 porary as well as permanent rights of way, which were made to 
 m.eet the convenience of tenants under lease of lands. Such leases 
 were usually of nine years' duration in Piedmont, and oftentimes 
 
298 ITALIAN IRRIGA TION LE GISLA TION. 
 
 a tenant would desire to obtain additional or other waters for a 
 field for the period of his lease, only. To cover these cases the 
 second paragraph of article 627 made provision that the right 
 might be acquired for such period or less, by the payment of one 
 half the value of the land occupied, with the one fifth additional 
 and the resulting damage to the lands crossed, as before explained. 
 It is noticeable that a temporary right-of-way could not be con- 
 verted into a permanent one by the pa3rment of the other half 
 value of the land. Could this have been done, landlords would 
 have taken advantage of the necessities of their tenants, to acquire 
 permanent rights-of-way for waters for their estates, at half rates. 
 But the law did not allow this; so that tenants were put in a 
 position to deal on better terms with landlords, when additional 
 supplies of water were required for an estate which they were 
 farming. 
 
 This completes all necessary remarks on the articles of the Sar- 
 dinian code relating to right-of-way for waters across lands by 
 independent channels. It is now well that the provisions of the 
 new code for all Italy be examined for comparison on this point, 
 before going on to the next classification of the right-of-way matter. 
 
 The Kingdom of Italy. — The rulings of the new Italian code that 
 take the place of those of the old Sardinian, upon which comment 
 has just been made (articles 622, 626, 627, 629, 640, 663, and 673), 
 are contained in its articles 598, 602, 603, 605, 619, 648, and 666, 
 to be found in appendix II, and to which reference may be made 
 in continuation of these points concerning " The right of aqueduct 
 across lands." 
 
 The Right of Aqueduct Across Other Canals. 
 
 (Sardinian Code, Articles 624 «"(? <J''5: Italian Code, Articles 600 and 601.) 
 
 This question came up at an early period in the development of 
 irrigation in Italy, and for a long range of time it was decided on 
 the basis of the question of conducting water in a common chan- 
 nel, which is next spoken of herein. The waters at a point of 
 crossing of two canals or water-courses were taken into a common 
 channel for a short distance, if it was desired to cross almost 
 immediately, and then separated into two channels again by some 
 structure designed to repartition them proportionately. Thus this 
 necessity for the crossing of streams or canals was probably the 
 form which the question of a common channel took in its earliest 
 
THE SERVITUDE OF AQUEDUCT. 299 
 
 stages, and the mingling of waters for tlie short space at crossings 
 possibly suggested the mingling for purposes of economizing in 
 conducting it for long distances. 
 
 Be this as it may, as more fully explained under the next sub- 
 heading, the practice of uniting waters of separate owners and 
 again partitioning them, gave rise to so muclv trouble, that the 
 construction of special works to effect crossings of streams, without 
 such mixing, was stimulated; and with success in this practical 
 solution of the question tame denial, in the laws, of the right to the 
 mingling of waters; and the bare recognition of the right to cross 
 one canal with another, in the way most suitable to the locality, 
 and under certain restrictions, that, except in rare cases, defeat 
 the practice of mingling altogether, is all that is left of the former 
 right to cross as one chose. 
 
 ArticJfis of the Sardtnian Code. 
 
 "Article 624. It is also permitted to carry water across exist- 
 ing canals and water-courses in such manner as may be most 
 expedient, and best adapted to the locality, and to the condition 
 of the said lands and water-courses. It is necessary that the 
 works to be constructed for the above mentioned purpose shall 
 not stop, check, or accelerate, or in any other way change the 
 course or the volume of the water flowing in the canals or water- 
 courses. 
 
 '"Article 625. In carrying water across public or district roads, 
 or across rivers or torrents, the special rules of the department of 
 roads and waters' shall be observed." 
 
 The Right of Aqueduct Across other Works — Noteworthy Points. 
 
 Piedmont. — The true meaning of the foregoing article 624 is 
 only appreciated when we thoughtfully read the conditions at- 
 tached to the apparently free right which it gives the owner of 
 one canal to construct his channel-way across the work of another, 
 and when we know something of the interpretations which have 
 been given it, and the practice under it. The passage, as we 
 observe, must be effected "in such manner as may be most ex- 
 pedient and best adapted to the locality and to the condition of 
 the canals and water-courses," but the works to be constructed 
 in eflfecting the crossing " shall not stop, check, or accelerate the 
 speed of, or in any way change the course or the volume of the 
 water" crossed. 
 
 ' The civil engineering bureau of the government. 
 
300 ITALIAN IE RIG A TION LE GISLA TION. 
 
 Now, no crossing of one flow of water by another in the same 
 channel could be effected under these conditions: anything like 
 a direct flow across wovld "change the course" of the current 
 sought to be crossed; except under special arrangements involv- 
 ing a change of grade of such water-course, such an attempt would 
 " check " its current above and " accelerate its speed " below; and 
 any attempt at thus crossing, at all, would increase its volume 
 and then diminish it again. Furthermore, any use of a common 
 channel is virtually prohibited by articles 623 and 628, which are 
 to follow under the next subheading; and the crossing of waters 
 through other waters involves a mingling of the two, a use of a 
 common channel, and a re-separation, even though the distance 
 of flow together be the shortest possible. The fact is that this 
 article (624) was intended to do away with crossings involving 
 mingling of waters, and the conditions as to the manner of the 
 crossing and its adaption to the condition of the several works, 
 contained in the first clause, were intended to regulate the con- 
 struction of S3rphons under or aqueducts over these water-courses 
 in effecting the passage. 
 
 The Kingdom, of Italy. — In continuation of this subdivision of the 
 topic, attention is now asked to appendix II, where in articles 600 
 and 601 of the new Italian code will be found the items of the 
 present law which supplanted those contained in 624 and 625 of 
 the old Sardinian code upon which I have just commented, and 
 where I have brought the subject of " The right of aqueduct across 
 other canals " down to date. 
 
 The Right of Aqueduct by a Common Channel. 
 
 {Sardinian Code, Articles 623 and 628; Itnlinn Code, ArUcle.i 599 and 6O4.) 
 
 The right to make use of an existing channel or canal, in which 
 to conduct waters — mingling them with waters of other ownership, 
 and then reclaiming and separating out an equal or equivalent 
 quantity, and diverting or drawing it off at some point below — is 
 one which found place amongst the customs of the Italians at a 
 very early period. 
 
 Lomhnrdy. — At the time of the construction of the greatest of 
 the ancient canal works in this valley — a truly monster canal, 
 built during the twelfth and thirteenth centuries — there had been 
 several other works of considerable magnitude, together with their 
 
THE SERVITUDE OF AQUEDUCT. 301 
 
 branches, carried through the. region to be traversed by the new. 
 The art of hydraulic construction had not yet accomplished the 
 building of large size syphon tubes under, or aqueducts for great 
 volumes of water over existing water-courses, and such works, too, 
 would have been exceedingly expensive for the times. Necessity, 
 at this time, brought about the practice of uniting the waters of 
 the old works crossed with those of the new works constructed, 
 and then separating them again at points below, according to the 
 gauging of outlets, or the proportioning of channels. 
 
 This is looked to as the beginning on a large scale of a practice 
 which grew into almost a fixed custom in Lombardy, and for a 
 long time was regarded as embodying one of the principles of the 
 customary law of irrigation. It never found place, as a servitude 
 to be laid on private works, in the written statutes of Lombardy, 
 however, and its practice brought about such disputes over the 
 measurements on the repartitioning of waters thus mingled, that 
 the building of structures to avoid the mingling, by dipping one 
 canal down under the other, or carrying it around and over it at 
 lower points, was greatly stimulated, and the common use of chan- 
 nels, without common and free consent, was prohibited. Thus, 
 article 5 of the Milanese code, transcribed in the first section of 
 this chapter, though not explicitly so, is virtually a prohibition of 
 the mingling of waters in a common channel. 
 
 But, in the meantime, there had grown up a very wide range of 
 practice in this, mingling and repartitioning method of crossing 
 and conducting waters of different owners, and the annals of 
 Italian irrigation literature are plethoric with accounts of litiga- 
 tions to which it gave rise. The advance in hydraulic art — in the 
 measurement of waters — has, however, made these troubles less 
 frequent, as the practice became more perfect and less open to 
 objection. 
 
 The privilege of introducing waters into the government canals 
 and then reclaiming them at a point below, was one specially open 
 to abuse and eagerly sought after. De Buffon, speaking of the 
 privilege granted to individuals by the Austrian rulers of Lom- 
 bardy, to introduce water into the royal canals, and then reclaim it 
 at a lower point, says " that having all the appearance of an equi- 
 table concession, the right has hardly ever failed to degenerate 
 into an abuse." The absence of means and even of the possibility 
 of accurate gauging of the amount taken in, and a just partition- 
 ing off of the amount taken out in return, and the opportunity, 
 
302 ITALIAN IRRIGATION LEGISLATION. 
 
 through the absence of continuous guarding, to take more than 
 was due, was an incentive to the desire to obtain the privilege. 
 
 " Had such means existed at the times of which we write, de- 
 mands for the introduction of private waters into the grand canals 
 would have been less frequent. Justice and good sense are in 
 accord in rejecting the idea of similarity between the simple con- 
 ducting of water over the property of a neighbor, and the exercise 
 of a right to make use of his canal already existing." 
 
 Damage caused by the construction of a canal across lands may 
 be readily estimated and liquidated, but the injury which may be 
 inflicted by one dishonestly inclined, upon the owner of a canal 
 by introducing his waters therein and then reclaiming them at a 
 point below, is a cumulative one past all finding out, and not to 
 be estimated at all in dollars and cents alone. 
 
 " The owner of a canal, upon whom it is sought to impose such 
 a servitude, may well reply: Our waters would be so mixed that 
 independently of the injury you could cause me in retaking from 
 the canal more water than you had turned in, you oblige me to 
 keep a constant surveillance over you while doing so, and you 
 compel me to keep up a perfect understanding with you in regard 
 to the maintaining, clearing, and stoppage, or continuance of flow 
 in the canal, on terms upon which we probably could not agree; 
 in a word, you impose on me a perpetual community of interest 
 which I have not sought, but opposed." — [De Buffon, Vol. II, pp. 
 282-286. 
 
 The modern legislation of Lombard}^ contained this one provis- 
 ion on the subject in hand, and this was embodied in the decree 
 or law of 1806, to which reference has heretofore been made. 
 
 ''Article 16. Whoever desires to introduce water into a public 
 €anal, with the view of extracting it again at a lower point, shall 
 submit his claim to the direction-general. The case will be decided 
 in accordance with article 4 (i. e.. so as to cause no injury to the 
 rights of other parties). Objections to this arrangement shall be 
 disposed of by the public administration." 
 
 It will be noticed that this article applied only to the introduc- 
 tion of water into the public canals of the state, and that it set up 
 no basis of a right of servitude in connection with such license, 
 but made it a mere privilege, to be extended or not extended, 
 according to circumstances and the judgment of the superior ad- 
 ministrative officer in charge of the works. It formed no basis for 
 the assertion of right to use a preexisting private canal, and as a 
 matter of fact, the right has never been asserted as a servitude in 
 
THE SERVITUDE OE AQUEDUCT. 303 
 
 modern times in Lombardy, and rarely asked, and less rarely 
 granted, as a privilege, in the case of the government canals. 
 
 Piedmont. — In Piedmont this right first found place in the laws 
 of the latter part of the sixteenth century, but not until the last 
 part of the eighteenth did it assume a definite and somewhat com- 
 plete form in the legislation of the country. The edict of Charles 
 Emanuel, published in 1770, and heretofore quoted, established 
 the right in such broad and sweeping terms that great trouble 
 resulted, and it became necessary to abolish it. The framers of 
 the Sardinian code, long afterwards (1837), followed out this last . 
 line of policy in the wording of the following articles: 
 
 Articles of the Sardinian Code. 
 
 "Article 623. The canal required for the water shall be executed 
 entirely at the expense of the party claiming the right of passage, 
 and he shall have no right whatsoever fo demand the said passage 
 through canals previously in existence, and destined for the use of 
 other waters. The proprietor of any farm, however, whereupon a 
 canal carrying water of which he is the legal owner already exists, 
 may prevent the opening of a new canal on the said farm, by offer- 
 ing to give a passage to the waters of another through the preex- 
 isting channel, always provided that this can be done without 
 manifest injury to the party claiming the right of passage. 
 ********** 
 
 "Article 628. Any one availing himself of an ofl:er made under 
 the terms of article 623, to allow his supply of water to flow through 
 the canal of another, is bound to pay, in proportion to the volume 
 of water introduced by him, his share of the value of the land 
 occupied by the works, of the excess and compensation above (in 
 article 627) fixed, and, further, to defray in the same proportion 
 the costs for repairs, maintenance, and every expense which the 
 introduction of said water may have rendered necessary." 
 
 The Right of Aqueduct by a Common Channel — Noteworthy Points. 
 
 Piedmont. — As a commentary on the last two articles of the Sar- 
 dinian code, I quote the words of Baird Smith, as follows: 
 
 " The vexed question of the right of passage through previously 
 existing channels has been very judiciously disposed of by the 
 Sardinian legislation. To have continued this right to the pos- 
 sessor of water in the absolute manner established by the ancient 
 legislation of Piedmont, would, as experience had already shown, 
 have led to constant and harrassing disputes. The edict of 
 Charles Emanuel, on which the right spoken of was founded, had 
 been followed by repeated lawsuits; and though the judicial tri- 
 
304 ITALIAN IRRIGA TION LEGISLA TION. 
 
 bunals had necessarily decided all cases in accordance with its 
 provisions, the senate of Turin had especially recorded its opinion, 
 that the law was one of great severity. It is also recorded that 
 there was scarcely ever a single case in which the results of the 
 union in the same canal, and the, subsequent division of the water 
 belonging to two different proprietors, were satisfactory to both." — 
 [Smith, Vol. II, p. 270. 
 
 De Buffon, also, has written of the necessity for, and justice of, 
 this portion of the Sardinian code. Here are his sentiments: 
 
 " The power of acquiring a right of way for waters through exist- 
 ing canals, which, as we have seen, was admitted by the ancient 
 legislation of Piedmont, has, for good reasons, been left out in the 
 formation of the new code. * * * The authors of this code 
 found, with reason, that it was unjust to impose upon proprietors 
 the obligations to receive strange waters into their canals, races, 
 or ditches, as experience had proven that such mingling as resulted 
 therefrom seldom failed to, lead to litigations, disastrous to all in- 
 terests."— [De Buflfon, Vol. II, p. 329. 
 
 Analyzing for ourselves articles 623 and 628, we find the right 
 of passage through the canals of another expressly abrogated — 
 whoever acquired a right of way across lands under article 622, 
 already considered, under article 623 had to construct the works 
 for carrying the water entirely at his own expense; except in the 
 case where the owner of the land to be crossed, possessing a canai 
 which could serve for the accommodation of the waters desired 
 to be conducted, might, in order to save his land from being cut 
 by another channel, offer to accord the right to use his canal. 
 Then article 628 makes provision for his compensation, if his offer 
 is accepted, for the use of his work and the occupation of his land. 
 
 The Kingdom of Italy. — Following this subject of " The right of 
 aqueduct by a common channel," I now invite attention to articles 
 599 and 604 of the new Italian code, found in appendix II, and 
 which took the place for all Italy of the foregoing 623 and 628 of 
 the old Sardinian code for Piedmont. It will be seen that the 
 present provisions are substantially the same as those of the Sar- 
 dinian code, so that further comment is unnecessary. 
 
THE SEE VI TUBE OF AQ UED UCT. 305 
 
 The Right of Aqueduct for Waters of Drainage and for Warping.^ 
 
 (Sardinian Code, Article 630; Italian Code, Articles 609, 610, 6m.) 
 
 The right of passage for waters of natural drainage has always 
 been recognized as a servitude over lower lands, due to their situ- 
 ation; but the right to discharge natural drainage waters on to 
 lower lands at points other than where their original course led 
 them, or to increase the volume of drainage waters artificially, has 
 been the subject of legislation. 
 
 Lomhardy. — The chief parts of the modern laws of Lombardy on 
 this point were embraced in article 54 of the decree of 1806, which 
 first declared that " lower lands are bound to give passage to waters 
 flowing from higher levels." It will be noticed that this was a 
 declaration of a right of servitude, not only in favor of natural 
 drainage waters, as was the case in other codes spoken of, but it 
 included all waters draining from higher lands, thus including 
 waters which may have been caused to flow down by artificial 
 means, or which had been brought to the lands by artificial works. 
 Not, however, to injure the owners of such estates as might be 
 subjected to this servitude, the second paragraph of this article 
 contains the following provision; Referring to articles 51, 52, and 
 53, which relate primarily to rights-of-way for waters for irriga- 
 tion, but are also made to apply to rights for drainage waters, and 
 which contain obligations on proposed conductors of water, to pay 
 for the privilege, etc. This article 54 further says: 
 
 " In addition to the obligations imposed by the preceding arti- 
 cles, the proprietor of the upper lands is bound to defray the cost 
 of such drainage channels as may be necessary, and of such works 
 of defense as may be required to protect the lands through which 
 the waters pass; as, also, to repair any damage which at any time 
 the lands may sustain. The preceding article does not affect 
 special agreements between proprietors, nor rights of servitude ac- 
 quired by process of law." — [See, Smith, Vol. II, p. 158. 
 
 This above is an example of most extended application of the 
 servitude of drainage from higher to lower property. Seeing that 
 it includes the right for all waters from the higher estate, whether 
 naturally running off or not, in with those produced naturally, 
 and puts the burden of receiving them upon the lower estate, as a 
 
 1 See, De BuflFon, Vol. 11, pp. 194-200, and 333; also, Smith, Vol. II, pp. 158, 2,8, 
 and elsewhere. 
 20' 
 
306 ITALIAN IRRIGA TION LEGISLA TION. 
 
 natural servitude. In Italian the word colatura is used as a name 
 for surplus waters which have been used in irrigation — the drain- 
 age waters from irrigated fields ; and where rice and meadow lands 
 are cultivated the quantity of these colaturas is very large, amount- 
 ing in some cases to more than half as much water as is originally 
 applied to the land. The right of passage was accorded in Lonv 
 bardy for colaturas upon the same terms as the original waters for 
 irrigation. They were themselves used again in irrigation, and 
 were held to differ in the eyes of the law in no respect from waters 
 directly derived from a primary source, such as a river or spring. 
 
 Piedmont. — The following article of the Sardinian code em- 
 braced the modern legislation of Piedmont specially applicable 
 to the matter of "The right of aqueduct for waters of drainage 
 and for warping:" 
 
 "Article 630. The terms established in the foregoing articles 
 for the passage of water apply equally to the case of the proprietor 
 of a marshy estate, who desires to improve the same either by the 
 process of warping (colmata) or by the excavation of one or more 
 channels of drainage. Should opposition be made to the estate by 
 parties having rights to the water on or flowing in any way from 
 the same, the tribunals, in deciding, ought to have due regard to 
 sanitary and agricultural interests, and also to the use made of 
 the water by the objecting parties." 
 
 Herein we notice the importance attached not only to drainage, 
 but also to the process of colmatage, spoken of on page 91, ante, 
 and elsewhere, that they should be placed on the same footing 
 with irrigation in the matter of acquiring right to passage for 
 waters to effect their purpose. 
 
 " It is held that the drainage or the improvement, by the process 
 of warping,'^ of marshy localities has an influence on the general 
 good of the community scarcely inferior to that of irrigation itself, 
 and that he who is prepared to invest his capital in changing 
 miasmatous swamps into fertile fields is entitled to priAdleges at 
 least equal to those afforded by the laws to the proprietor of water 
 employed in increasing directly the products of agriculture and 
 industry."— [Smith, Vol. II, p. 268. 
 
 The second paragraph of the foregoing article (630) applies to 
 cases where rights to the use of drainage waters drawn from lands 
 in a marshy state, which have accrued by use or otherwise to the 
 benefit of some one situated below, are to be interfered with by 
 
 ' Colmatage (French), or colmata (Italian). 
 
THE SERVITUDE OF AQUEDUCT. 307 
 
 the owner so improving the estate by more thorough drainage as 
 to intercept, stop, or change the outfall of the drainage waters; 
 and the existence of the law is an evidence of the thoroughness 
 of the system which thus usefully employs in irrigation even the 
 waters of marshes and swampy tracts to an extent that would 
 require and bring about the passage of a special clause in the 
 protection of such rights. The right of way for drainage waters 
 from irrigation (colaturas) is also assured by the provisions of 
 this Sardinian code, seeing that the privilege is accorded for all 
 waters to which a legal right is had by the person who desires to 
 conduct them, and seeing that these waters are devoted to re- 
 application in irrigation or some other useful purpose. 
 
 The Kingdom of Italy. — In conclusion of this subject of " The 
 right of aqueduct for waters of drainage and for warping," the 
 attention is now directed to articles 606, 609, 610, 611, 612, 637, 
 654, 655, and 656, Italian code (see appendix II), which contain 
 the relevant matter of the present law, and which are offered in 
 conclusion of the remarks already made under this subheading. 
 
 SECTION III. 
 Right of Aqueduct for Public Waters. 
 Condemnation for Purposes of Public Utility.^ 
 
 (Sardinian Code, Articles 441 and 44^; Italian Code, Article 43S.) 
 
 Piedmont. — Articles 622 to 629 of the Sardinian civil code, as 
 we have seen, provided for the establishment of a right of way for 
 waters through the estates of others. The right to be acquired 
 under these articles' was a simple servitude upon the property 
 crossed, and did not give the owner of the canal or water any 
 right of ownership in the strip of land occupied by his work. 
 The application of these principles was intended to provide for 
 cases even of the most insignificant kind — where any one had a 
 piece of land large enough to make a garden patch worth irri- 
 gating, and water enough to take to it for the purpose. 
 
 In the construction of great works, whether of a private or pub- 
 lic ownership, intended to irrigate considerable areas of land, the 
 
 1 See, De Buffon, Vol. II, pp. 333-337; also, Smith, Vol. II, pp. 274^278. 
 
308 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Sardinian government recognized the presence of the element of 
 public utility in the project, and provided in its code for the ac- 
 quirement, by condemnation, or the exercise of what we term the 
 power of eminent domain, of an absolute property right in the 
 lands occupied by the canal and its necessary accessory struct- 
 ures. The following are the provisions spoken of: 
 
 "Article 441. No one can be compelled to cede his property, or 
 to allow another to make use of it, unless for objects of public 
 utility, and on receipt of a just compensation, payable in advance. 
 
 " The works of public utility, and the property to be occupied 
 by the same, are determined under provisions emanating from the 
 sovereign. 
 
 " The rules to be followed in the aforesaid cases shall be fixed 
 by special laws and regulations. 
 
 "Article 442. When the parties cannot agree before the admin- 
 istrative authority on the account of the indemnity to be paid, the 
 disputes shall be decided by the legal tribunals." 
 
 Following this, and in 1839, a long special law was passed regu- 
 lating this matter of expropriation of private property for purposes 
 of public utility, the chief provisions of which are as follows: 
 
 "Article 1. Works of public utility are those executed on ac- 
 count of the royal domain, of the State administrations, of prov- 
 inces, and of communes. Such works, and the property to be 
 taken possession of in the execution of the same, shall be deter- 
 mined under article 441 of the civil code, by letters patent issued 
 under the advise of the council of state. 
 
 "Article 2. Works executed by associations or single indi- 
 viduals may also be declared of public utility by appropriate 
 letters patent, whenever their importance Or their influence on the 
 development of the general prosperity is such as to warrant this 
 character being attributed to them." — [See, Smith, Vol. II, p. 274. . 
 
 This law made provision in minute detail for the conducting of 
 the sale of the lands to be occupied by the works: First, prescrib- 
 ing in thirty-seven articles the steps and conditions of procedure 
 when the arrangement could be amicably consummated between 
 the parties, with the mediation of the intendants of the provinces; 
 and then, in twenty-three additional articles, specifying the forms 
 of procedure, etc., to be had before the courts in carrying out the 
 enforced sale, if an amicable agreement could not be arrived at. 
 
 The general object was to insure a fair compensation for the 
 ground occupied, and for the injuries or inconveniences occasioned 
 by its use for the purpose desired, to be estimated upon the basis 
 
RIGHT OF WAY FOR WATERS. 309 
 
 of the returns from the land for the ten years preceding the date 
 of the proceedmgs, or on other data equally exact for the purpose. 
 
 The first estimates were to be made under the direction of the 
 administrative authorities; but upon appeal to the courts, if de- 
 manded by either party at interest, new estimates were made, 
 under the direction of the courts, by engineers agreed upon ami- 
 cably by the disputants, if possible, or, otherwise, appointed by the 
 court itself. 
 
 This law was commented upon and put in operation by a num- 
 ber of administrative regulations, which further explained the 
 forms of procedure to be had and the application of the articles 
 of the law. As to just what construction was to be placed on the 
 term "public utility," the following clauses are in point: 
 
 "Whenever the limit of simple private interest, whether in the 
 case of corporate or individual proprietors, is passed, and the work 
 is designed for public ser^-ice, the declaration of public utility may 
 be claimed without reference to the special nature of the work 
 itself. 
 
 " Therefore, canals and ditches, provided they have a material 
 influence upon public prosperity, become included among those 
 works, on behalf of which the declaration of public utility may 
 be made. 
 
 " In fact, although the ci\'il code has established certain special 
 rules for canals and ditches, with the view of facilitating their con- 
 struction by private parties, it does not thence follow, that, when 
 they present all the characteristics of other works of public utility, 
 the benefits secured by the laws to such works should be denied 
 to them. 
 
 "It is, therefore, to be concluded that when projected canals 
 have the characteristics of works of public utility, they shall be 
 so declared, with the view of appljdng to them the provisions of 
 the law on dispossession." — [Trans., Smith, Vol. II, p. 277. 
 
 These articles of the laws and administrative regulations so very 
 fully and clearly explain this branch of the subject that comment 
 is unnecessary. 
 
 Tlie Kingdom of Italy. — In conclusion of this subject of " Con- 
 demnation of right of aqueduct for works of public utility," atten- 
 tion is asked to article 438 of the Italian code, in appendix II, 
 where it will be seen that the law on this point for all Italy is sub- 
 stantially the same as it was for Piedmont under the Sardinian 
 code ruhng. In the matter of condemning property for purposes 
 of public utility, the present Italian government has an extended 
 
310 ITALIAN IRKIGA TION LEGISLA TION. 
 
 law which however it is unnecessary here to quote from for the 
 purposes of this report. Its principles follow in the same line as 
 those already so fully noted. 
 
 Resume — Right-of- Way. 
 
 To review, in one paragraph, the hearing of all that has been 
 said about the rightrof-way laws in Piedmont, it may be said (1), 
 that any person, association, or corporation, having a valid right 
 to any certain amount of water sufficient for and to be applied to 
 a declared useful purpose in agriculture or in the creation of power 
 by water-power works, could acquire the use of the strip of land 
 necessary upon which to construct a canal or other conduit to 
 convey the water from the place of its source to the point of its 
 intended use, as a simple servitude, by observing due forms of 
 demand, paying just compensation for lands and damages in ad- 
 vance, and engaging to so use and maintain his works as to cause 
 no avoidable damage to the owners of the lands traversed; and 
 (2), that when the use of the water was such as to be of pubUc 
 benefit, authority might be had wholly to condemn, pay for, and 
 acquire title to the strip of land necessary upon which to locate 
 the work) and (3), that "public utility" in the case of irrigation 
 meant the use of waters by a number of individuals, a neighbor- 
 hood, or community of irrigators. 
 
 Of this Piedmontese system De Buffon wrote: 
 
 " It takes but little reflection to realize that the modern legisla- 
 tion of Piedmont on the subject in question, is as complete and 
 satisfactory as could be desired. Furthermore, the results of it 
 are more convincing than reflection on the laws themselves could 
 be. It maybe said that agriculture cannot hope to be more truly 
 and efficiently protected than it is in this country, especially by 
 the facilities which legislation has given for the extending of irri- 
 gation."— [De Buffon, Vol. II, p. 337. 
 
 In the light of what has now been said on this subject, a care- 
 ful reading of the provisions of the present Italian law to be found 
 all together in appendix II to this volume, and heretofore referred 
 to by number, will show that the Kingdom of Italy has a most 
 complete and ample Right-of-Way law, and has profited by Pied- 
 montese and Lombardian experience in this regard. 
 
RIGHT OF WAY FOR WATERS. 311 
 
 AUTHORITIES FOR OHAT'TKR XIII. 
 
 De /}»rf'(i».— [Work cited as an authority for Chapter IX.] See, Vol. II, Book 
 ' YIII, Chaiis. XLII to XLV; Book IX, Chap. XLVIt, Div. II, and 
 
 Chap. XL VIII: also, see Vol. I, Book II, Chap. VII, Div. I. 
 Smi(7i.— nVork oited as an authority for Chapter IX.] See, Vol. II, Tart IV, 
 
 Chap. I, See. '1\ Chap. II, See. '1, and elsewhere in Vols. I and II. 
 SnniiiiIdH Code. — [Work cited as an authority for Chapter X.] See, Arts. 441, 
 
 442, Ol'2-630, (i40, (i(i3, and 073. 
 Italian Code. — [Work cited as an authority for Chapter X.] See, Arts. 4S.S, 598- 
 
 1)05, liOSKllL', H19, 648, and G(i6, and remarks appended to each. 
 
312 ITALIAN IRRIGA TION LEGISLA TION. 
 
 OHAPTEE XIV-ITALY'^'; 
 lEEIGATION OEGAiriZATIOU AND EEGULATION. 
 
 Section 1. — Irrigation Organization. 
 
 Causes of and Necessity for Organization. 
 Social Tendency o£ Irrigation in Italy. 
 Formation of Irrigation Associations. 
 General Law of 180S— Lombardy. • 
 
 Sectiok II.— Organization and Management : Piedmont and Lombardy. 
 The General Association "West of the Sesia— Piedmont. 
 General Organization and Management. 
 The Government and the Association. 
 
 Section III. — Organization of Associations : Kingdom of Italy. 
 
 The present Law for all Italy; Civil Code provisions. 
 Voluntary Association of Landholders. 
 Compulsory Formation of Associations. 
 Present Law for all Italy : Special Law provisions. 
 Organization : Laws of 1873 and 1883. 
 
 SECTION I. 
 
 Irrigation Organization. 
 
 Qauses of and Necessity for Organization.^ 
 
 As heretofore written, the canal works of Italy, for the most part, 
 had their growth in times when only rulers, governments, rich 
 civil and ecclesiastical corporations, wealthy nobles, and large 
 landholders could afford to undertake such enterprises. There 
 was no such thing as companies or associations of small farmers 
 taking water out on their own account for their own use. The 
 river channels and topography and climate of the country were 
 such that the diversion of waters necessitated the construction of 
 great works, built solidly of costly materials, at heavy expense; so 
 there were but few small private canals, and no cheap works of. 
 
 ' See, De Buffon ; also, Smith and Marsh. 
 
IRRIGATION ASSOCIATIONS. 313 
 
 diversion from the natural streams, such as it has been possible to 
 construct and maintain in California. 
 
 Then again, the landholdings were much consolidated into few 
 hands in years long gone by, and the practice of irrigation has 
 tended to make the rich richer and the poor poorer — to further 
 increase the size and diminish the number of farms, and reduce 
 the farm workers from the grade of small landholders to those of 
 renters of and laborers on other people's property. Thus, the 
 canals are owned by the government, by wealthy nobles, ecclesi- 
 astical and municipal corporations, and very generally not by the 
 irrigators, and the waters are commonly sold by volume accord- 
 ing to established units of measure and standards of measuring 
 devices. The lands are generally held by rich non-working 
 owners, and are farmed by irrigation under the management of 
 professional superintendents, or are divided into small tracts and 
 leased, for terms, generally, of nine years duration, to the real 
 working irrigators of the country. 
 
 Social Tendency of Irrigation in Italy. 
 
 Besides the authors, after whom, in a general way, I have writ- 
 ten the foregoing paragraphs, the writings of another deserve 
 special consideration on this point. I quote from a paper written 
 by the late Hon. George P. Marsh, for many years United States 
 minister at the court of Italy, an author of learning, observation, 
 and thought in the special line of the physical, social, and moral 
 effects of man's greater occupations on the earth's surface. Speak- 
 ing of the effects of irrigation generally in Europe, but from per- 
 sonal observation, more particularly, in Italy, where the paper 
 was written, this author says: 
 
 " With an important exception,' which I shall notice hereafter, 
 the tendency of irrigation as a regular agricultural method, is to 
 promote the accumulation of large tracts of land in the hands of 
 single proprietors, and consequently to dispossess the smaller land- 
 holders." 
 
 He then gives some reasons for this, which I shall desire to 
 present in a later part of this report, so will not transcribe them 
 here, but I go on with his narration of the facts to our point; 
 
 ^ This exception is in the case of several of the irrigation regions in the south 
 of Spain, where the water rights have been held by the peasant proprietors 
 from the time of the Moors. 
 
314 ITALIAN IRRIGATION LEGISLATION. 
 
 " European experience shows, as might be expected from what 
 has just been said, that under such circumstances, as well as where 
 waters belonging to the state are farmed and relet by private 
 individuals, water-rights are a constant source of gross injustice 
 and endless litigation. The consequence of these interminable 
 vexations is that the poorer, or more peaceably disposed land- 
 holder, is obliged to sell his possessions to a richer or more litig- 
 ious proprietor, and the whole district gradually passes into the 
 hands of a single holder, or family, or corporation. Hence, in 
 the large irrigated plain lands of Europe, real estate is accumu- 
 lated in vast tracts of single ownership, and farming is conducted 
 on a scale hardly surpassed in England, or even on the boundless 
 meadows and pastures of our own west. * * * * 
 
 " The small cultivators who sell their paternal acres must either 
 emigrate, and so diminish the resident population, or sink from 
 the class of land owners to that of hired laborers on the fields 
 which, once their own, are their homes no longer. Having no pro- 
 prietary interest in the soil they till, no mastership over it, they 
 are, as I have said elsewhere, virtually expatriated, and the mid- 
 dle class, which ought to constitute the true moral as well as phy- 
 sical power of the land, ceases to exist and enjoy a social status as 
 a rural order, and is found only among the trading and industrial 
 population of the cities." — [Marsh; see. Report Department of 
 Agriculture, 1874, pp. 364-366. 
 
 Although this picture of experience is in a general way true for 
 the irrigation regions of central Spain, of Prance, of Belgium, and 
 other central European countries where irrigation is practiced on 
 a large scale at some notable localities, it is specially true for Italy 
 and particularly of Tuscany and the regions of the valley of the 
 Po, which we are now considering. With these antecedents and 
 this tendency of canal enterprise and irrigation practice, grew up 
 the gravest conflicts between the irrigators and holders of water- 
 rights— the canal owners. The small land proprietors and irri- 
 gators found that singly they could not hold their own: they must 
 organize locally, and, as a body in each neighborhood, district, or 
 subdistrict, treat with those who supplied them with water. This 
 necessity brought about the demand for a law prescribing a form 
 for such organization, and recognition as legally constituted bod- 
 ies. And, hence, as a modern outcome, we find the law which 
 is next transcribed. 
 
 Formation of Irrigation Associations — Lombardy. 
 
 The association principle, of which this codification was the out- 
 come in Lombardy in the early part of the present century, is of 
 
IRRIGATION ASSOCIATION IN LOMBARDY. 315 
 
 quite ancient origin, but its full development in the form we now 
 find it was due to the genius of Napoleon, under whose dictation 
 the original text of the Lombardian law was promulgated. It was 
 a general law governing the organization of land owners, for pur- 
 poses of drainage, reclamation, or irrigation. And its application, 
 as will be seen, was committed largely to the government admin- 
 istrative authorities. 
 
 General Law of Association — Lomhardy. 
 1. — Organization of As.sociation.s. 
 
 " 1. All proprietors interested in special hydraulic works shall 
 be formed into such number of associations as may best suit their 
 common interests and the territorial divisions of the kingdom. 
 
 " 2. All existing associations shall be preserved, with such mod- 
 ifications or additions as may appear desirable. 
 
 " 3. The list of associations shall be definitely published during 
 the course of the following year. 
 
 " 4. The associations are subjected to the control of the prefect- 
 ure, and shall exercise their functions according to such rules and 
 regulations as may be prescribed by the superior authorities. 
 
 " 5. The properties benefiting by one drainage or irrigating canal 
 constitute a district. 
 
 " 6. All the proprietors of estates situated within a district, con- 
 stitute an association. 
 
 " 7. If the extent and circumstances of a canal should so re- 
 quire, it may be divided into several sections; each section may 
 have its own district, and each district its own association. 
 
 " 8. Each association shall be represented by a delegation. 
 
 " 9. The number of delegates shall be determined by the direc- 
 tion-general, in proportion to the wants of the district. 
 
 " 10. The proprietors in each district shall elect the members 
 of the delegation by ballot. To this end the prefecture shall con- 
 voke the proprietors at a specified time and place. The assembly 
 shall be presided over by the prefect, the vice-prefect, or one of 
 their deputies. If the number absent shall not equal a third of 
 the total number of the proprietors, those actually present shall 
 select the delegates from three lists composed of the larger pro- 
 prietors. . 
 
 " 11. One delegate shall be removed from the delegation bien- 
 nially. The retiring delegate shall be selected by lot from among 
 those first elected ; afterwards the senior member shall retire. The 
 retiring delegate may be reelected indefinitely. 
 
 " 12. The delegation has a president, whose tenure of office lasts 
 for one year. All the delegates succeed to the presidency in due 
 order. Among those first elected, the majority of votes in the elec- 
 tion shall regulate the order of succession. Subsequently, the rule 
 of seniority shall be observed. 
 
316 ITALIAN IRRIGA TION LEGISLA TION. 
 
 "13. The delegation shall determine the days of its ordinary 
 meetings. The prefect, the vice-prefect, and the president can, on 
 necessary occasions, summon extraordinary meetings. The pres- 
 ident shall cause the decisions of the delegation to be executed 
 in all cases where no special member has been nominated for this 
 purpose. 
 
 " 14. The ordinary duties of the delegation are to superintend 
 the canals with their outlets and banks, as also the works of such 
 other canals as may traverse or surround their district; to main- 
 tain all these in repair, and to collect the funds necessary for these 
 objects. 
 
 " 15. The delegation shall decide on all matters within its pow- 
 ers by simple majority of votes. 
 
 " 16. When new projects interesting to the entire district come 
 under discussion — such as the construction of new canals, the 
 enlarging or prolonging of old ones, the formation of outlets or 
 tunnels under rivers, or similar works involving extraordinary 
 outlay — then the whole of the proprietors of the district shall be 
 convoked, and shall proceed to the election of as many extraor- 
 dinary as there are ordinary delegates. 
 
 " 17. The union of the additional with the regular delegates 
 forms an extraordinary delegation, which shall decide on the pro- 
 posed works and the means of executing them. 
 
 " 18. The result of the deliberations of the extraordinary dele- 
 gation shall be submitted for approval to the direction-general. 
 On the works and means of execution receiving the approval of 
 the superior authorities, their completion is intrusted to the ordi- 
 nary delegation. 
 
 " 19. Each delegation shall have an accountant and a cashier. 
 
 " 20. In such districts as have relations with foreign powers, the 
 conventions and customs in, present force shall continue. 
 
 " 21. In cases of new canals, or improvements of land by drain- 
 age or warping, the districts and associations shall be formed in 
 accordance with the foregoing rules. 
 
 II. — Superintendence of Works. 
 
 " 23. There shall be nominated for the superintendence of the 
 canals, outlets, and embankments, belonging to a district, such 
 number of guards as the delegation may consider necessary. 
 
 " 24. The delegation shall prescribe police rules for the regular 
 protection of these works. 
 
 " 25. The ordinary engineer shall visit triennially, and oftener 
 if requisite, all the canals in his department. He shall examine 
 the interior condition of all the fixed works; note their wants, 
 defects, or abuses; propose to the delegation the appropriate re- 
 pairs; and shall inform the engineer-in-chief of the whole, wbo 
 will then report to the direction-general. Should the delegation 
 not be prepared to execute the works suggested, the engineer-in- 
 ordinary will report accordingly to the engineer-in-chief, who will 
 
IRRIGA TION ASSOCIA TION IN LOMBARD Y. 317 
 
 then submit the question to the direction, with his observations 
 and opinion upon it, for the decision of the superior authorities. 
 During such visits the condition of new land improvements should 
 be especially noted. 
 
 " 26. In times of floods, or inroads of waters, the extraordinary 
 guard reserved for such occasions shall be bound, in operating on 
 any works belonging to any particular district, to act in accord- 
 ance with the wants and usual customs of the localities. 
 
 III. — Works on Canals of Drainage. 
 
 " 27. With the view of showing clearly the interior condition of 
 the principal canals, fixed marks shall be established at every 
 fourteen hundred feet along their banks, on which shall be shown 
 the depth that each section of the channels ought to have.' This 
 depth shall be shown in local measures, with the equivalent Ital- 
 ian measures, on each of the marks above referred to. 
 
 " 28. Each delegation shall fix a certain minimum dejjth for 
 each canal within its district; and when silting up above this 
 plane takes place, recourse should immediately be had to excava- 
 tion. The depth in question should be approved of by the engi- 
 neer-in-chief. 
 
 " 29. The clearances of the canals should be effected twice a 
 year at least. 
 
 " 30. Should it happen that, by any river breaking its embank- 
 ments, portions of canals are blocked up, the delegation should 
 instantly reestablish the same. 
 
 IV. — Disbursement and Collection of Funds. 
 
 " 31. A preparatory estimate of the expense required for the pub- 
 lic and communal canals included within a district shall be made 
 by an engineer or other qualified party. The same course shall 
 be followed in all cases of extraordinary works. 
 
 " 32. The delegation shall prepare annually an assessment list, 
 the basis of which shall be the amount of annual public burdens 
 on each property, and the estimates of the probable expense re- 
 quired for the works, as given by the engineer. 
 
 "33. This assessment list shall be submitted for the approval 
 of the prefect, who shall forward the same for the consideration of 
 the magistracy of waters. On receiving the sanction of the pre- 
 ceding parties, the assessment shall be enforced according to ex- 
 isting agreements and customs. 
 
 "34. Where no special agreements or common customs exist, 
 the proprietors subject to the assessment shall be arranged in dif- 
 ferent classes, according to the amount of benefit they derive re- 
 spectively from the works. 
 
 " An engineer-in-chief, selected by the president of the delega- 
 tion, shall propose the classification of the proprietors and the dif- 
 ferent proportions in which the separate classes shall contribute to 
 the expenses. 
 
318 ITALIAN IRRIGA TION LEGISLA TION. 
 
 "This proposal shall be made public, so that the proprietors 
 may present any objections that they may have to it, before the 
 provincial delegation within a term to be fixed by this body. The 
 provincial delegation, with the concurrence of the provincial assem- 
 bly, shall report on the case to the government. On receipt of the 
 approval or alterations of the superior authorities, the quota fixed 
 for each class of proprietors shall be distributed among the indi- 
 viduals composing this class, in proportion to the revenue survey 
 valuations of their respective properties. 
 
 " 35. In collecting this assessment the cashier shall exercise the 
 same powers as are prescribed by the laws for the collection of the 
 direct taxes. 
 
 " 36. The fines imposed on parties breaking the existing regula- 
 tions belong to the association, and shall be deposited in the treas- 
 ury of the same; Whatever profits may in any way accrue shall 
 be similarly deposited in the treasury, at the disposal of the dele- 
 gation. 
 
 " 37. The cashier shall make payments on orders signed by the 
 president, one delegate, and the accountant. He ought to be re- 
 quired to furnish a sufficient amount of security. He is appointed 
 by the presiding body, on its own responsibility. The entire 
 amount of each rate imposed shall be placed to his debit five days 
 after it has become due, whether it has then been received by him 
 or not. 
 
 "38. At the end of each year the superintending body shall pre- 
 sent to the provincial delegation the accounts of the expenditures, 
 "with a statement of the debits and credits of the treasury; and 
 when these have been approved by a vote of the provincial assem- 
 bly, they shall be published, and a copy forwarded to the govern- 
 ment. 
 
 " 39. In case of several channels, which cannot conveniently be 
 included within one district, having a common escape-canal or 
 other works, the expense required for the protection and mainte- 
 nance of the said works shall be divided among the districts using 
 them, in proportion to their respective interests in them, excepting 
 always any agreements in force to a different effect. 
 
 "40. If the defense of an embankment concerns several dis- 
 tricts, the expense of repairing it shall be divided among them 
 according to their respective interests, saving agreements in force 
 to the contrary. 
 
 V. — General Provisions. 
 
 "41. Associations of proprietors interested in drainage, land 
 improvement, or irrigation, are subject to the inspection of the 
 provincial delegations, and are placed under the guardianship of 
 the political administrative authority. They exercise their duties 
 according to the rules and regulations prescribed by the superior 
 authority. 
 
 "42. All works appertaining to associations shall be made by 
 
IRRIGA TION ASSOCIA TION IN LOMBARD Y. 319 
 
 regular contracts. To proceed otherwise, and to execute the 
 works by daily labor, requires an express order from the govern- 
 ment, who will decide on the case and the necessity. In con- 
 tracting for the annual repairs of the works the contracts shall be 
 made for nine years. The government may alter this arrange- 
 ment under special circumstances. 
 
 "43. The channels shall be furnished, not only with the appli- 
 ances necessary for opening or closing them with facility, but 
 also with supplies of all the materials which may be required 
 to strengthen and protect them in time of floods. All arrange- 
 ments that concern the defense of embanked rivers are under 
 charge of the engineer-in-chief and his subalterns. 
 
 "44. Where the respective titles do not otherwise provide, the 
 volume and the special regulations for each outlet from the rivers 
 shall be fixed in such manner, as that no injury may result to the 
 interests of any of the proprietors belonging to the district. The 
 same care shall be observed in the use of turbid waters employed 
 in operations of improvement by deposits. 
 
 "45. Objections made by the proprietors within a district to the 
 proceedings of the presiding body shall be considered by the pro- 
 vincial delegation which, having verified the facts and submitted 
 them to the provincial council, shall decide each case accord- 
 ing to its merits. If the objections should involve points of great 
 irnportance, the provincial delegation shall submit them to the 
 government, and shall await its instructions before coming to any 
 decision. 
 
 "46. Each delegation shall present to the provincial delegation 
 a project of regulations for the careful protection of all the matters 
 committed to its charge. These regulations shall not have force 
 until approved of by the protecting authority." — [Smith, Vol. II, 
 pp. 170-178. 
 
 SECTION II. 
 
 Organization and Management of Irrigation Associations. 
 
 The General Association of Irrigation west of the Sesia — Piedmont. 
 
 To illustrate the application of the formation of irrigation socie- 
 ties in Piedmont, I bring forward the special case of the organiza- 
 tion and operation of the General Association of Irrigation west of 
 the Sesia. As already written, all of the canals, of which there 
 are quite a large number, in a certain great district east of the Po 
 and between the Dora Baltea and Sesia rivers in Piedmont, were 
 the property of the government. These were managed and main- 
 tained, as explained in the preceding chapter, under the direction 
 
320 ITALIAN IRRIGA TION LEGISLA TION. 
 
 of a bureau of civil engineering attached to the ministry of finance; 
 but the waters were farmed out on leases to contractors who under- 
 took to distribute them to the irrigators, collect the rents, and pay 
 the government specified sums annually. The arrangement was 
 thus written of in 1855; 
 
 " In the hands of the farmer of the canal revenues, are vested 
 the powers of entering into the contracts for water with all cul- 
 tivators — of fixing in communication with them the annual rent 
 to be paid, and the manner in which the supply of water is to 
 be used and measured. In a word, the whole interior economy, 
 so far as the granting of water is concerned, is under the control 
 of this party, who has his own private agents spread over the 
 country to watch his interests and carry into execution his orders, 
 all disputes being submitted to the decision of the ordinary tribu- 
 nals."— [Smith, Vol. I, pp. 119-122. 
 
 In view of this state of things, and remembering the matter 
 upon this special point — ^the effect of irrigation industry on land- 
 holdings — transcribed from the writings of Marsh, in the first 
 section of this chapter, we see the incentive to organization of the 
 irrigators of this region, and are prepared to appreciate the im- 
 portance of their association, which was formed for the purpose 
 of doing away with the evils of the system of water-leasing by 
 government to contracting " middle-men," and re-leasing or sell- 
 ing to the irrigators. The general idea was the formation of a 
 society composed of all the irrigators, themselves to lease the 
 waters in bulk from the government canals, and distribute them 
 to themselves as irrigators. 
 
 The society was founded by government under the act of July 
 3, 1853, and owes its origin to count Cavour, at the time minister 
 of finance of the Sardinian government, and a man to whom, on 
 account of his liberal and advanced ideas and patriotic actions, 
 northern Italy looks as a benefactor. The organization had for 
 its object at starting, "to lease, administer, and employ in gen- 
 eral, according to an economical and natural system of irrigated 
 cultivation, the waters of the crown canals derived from the Dora 
 Baltea (river), in terms of the agreement made with the state 
 finance bureau, for the irrigation of the respective properties of 
 the shareholders, with the power of extending successively the 
 benefits of the. association, even to the mutual assurance against 
 losses by hail, fire, and such like, and to other social objects of 
 mutual profit." 
 
ASSOCIATION IN PIEDMONT. 321 
 
 By the agreement referred to, the government leased to the asso- 
 ciation all the waters, in volume about 1 ,750 cubic feet per sec- 
 ond at maximum flow, of the crown canals in the region spoken 
 of, which is about twenty miles square, for a period of thirty 
 years; making, however, certain reservations in favor of owners 
 of old rights long ago acquired in perpetuity, which reservations 
 amounted to an aggregate volume of 793 cubic feet per second. 
 The lease took efl'ect on January 1, 1854, expired the first of the 
 past year (1884), and has been renewed on substantially the 
 same terms. 
 
 I have made and hereinafter present an analysis of this agree- 
 ment, but now ask attention to an account of the orgaiiization and 
 internal working of the society. The statutes and regulations of 
 the society comprise three hundred and seventy-nine articles, cov- 
 ering seventy-six pages octavo. The following is an abstract of 
 the principal points contained in these; 
 
 Organization and Management of the Association. 
 
 " In each commune, or parish, irrigated by these canals, there is 
 a society termed a censor zio agrario, composed of all the proprie- 
 tors within the parish who take water for their lands; or in cer- 
 tain cases a consorzio may be composed of proprietors of adjoining 
 small parishes. Each consorzio elects by universal suffrage one or 
 two deputies, according as it uses a discharge of less or more than 
 30 modules (61.4 cubic feet per second) in its irrigation. These 
 deputies form an assembly for the general administration of af- 
 fairs. They must be themselves members of the society, over 
 twenty-five years of age, "sufficiently acquainted with agriculture," 
 and men of good character. They receive no salaries as deputies, 
 nor are they allowed to hold any paid office under the societ3^ 
 They are elected for three years, and may be reelected. They meet 
 regularly twice a year, on the fifteenth of March and fifteenth of 
 November, and half their number form a quorum. They elect 
 from among themselves a president and vice-president, whose 
 functions last for three years, and each year they choose also an 
 honorary secretary and two assistants. They pass the accounts of 
 the year, settle how much is to be paid by each consorzio, what 
 salaries their employes are to have, listen to suggestions for the 
 benefit of the society, and in short generally direct and control the 
 whole of its business. The rules passed by the assembly are bind- 
 ing on all the members of the society. To help them in forming 
 decisions they have a legal and an engineering adviser. 
 
 2r 
 
322 ITALIAN IRRIGA TION LEG I SLA TION. 
 
 The Direction-General. 
 
 "From among themselves the assembly elect three committees: 
 the direction-general, the committee of surveillance, and the coun- 
 cil of arbitration. 
 
 "The first is the committee of management of the affairs of the 
 society. It consists of a director-general, three members, a secre- 
 tary, and an assistant secretary. If the director-general Ukes he 
 may appoint a colleague, with the approval of the assembly, to 
 take his place in case of illness or absence. The director-general 
 may call on the assembly to dismiss any of the members of his 
 committee, or he himself may suspend them for not doing their 
 duty. He has in every way to watch over the interests of the soci- 
 ety, to see to the conduct of its servants, and to give them rules 
 for their guidance, to direct any works, to disburse expenses, to 
 arrange with the government (or with the canal company) for the 
 amount of water required at each point, to see generally to the 
 distribution of the water over the irrigated district, to carry on all 
 communications with the government, and in short to be general 
 manager. The director-general receives an allowance of $1,800 a 
 year, from which he is expected to pay a number of small charges; 
 and each member of his committee receives a certain salary. This 
 committee has its headquarters at Vercelli, and renders an account 
 of its proceedings at each meeting of the general assembly. 
 
 " The committee of surveillance is ' the eye of the assembly over 
 the direction-general,' and has to see that it carries out faithfully 
 its duties towards the society. It consists of three members, of 
 whom the oldest presides. They meet once a week, and each time 
 receive a ticket which entitles them to a small allowance as fixed 
 at each general assembly; in 1866 the whole amount being only 
 $170. Should they think necessary, they may call an extraordi- 
 nary meeting, and make a report of their proceedings. 
 
 The Council of Arbitration. 
 
 "The council of arbitration has for its object: 'first, to settle all 
 disputes regarding affairs of the society which may arise between 
 the members and the society, or between the society and its serv- 
 ants; second, to decide cases of breaches of the rules and disci- 
 pline of the society; third, to assist the society in actions before the 
 courts; fourth, to give their advice on whatever may be referred 
 to them by the director-general; fifth, to fix and settle in case of 
 dispute the compensation for the passage, outlet, or any other obli- 
 gation or damage occasioned by the flowing, distribution, employ- 
 ment, recovery in drains, and escape of the waters of the society, 
 with its members or among the con&onioi, or members with each 
 other.' This council is composed of three members of the assem- 
 bly, who must be resident in Vercelli, and are elected annually. 
 They receive no regular pay, but get certificates of attendance at 
 meetings, like the committee of surveillance, and these certificates 
 
ASSOCIATION IN PIEDMONT. 323 
 
 entitle them to a small remuneration, of which the whole amount 
 in 1866 was $243." 
 
 Their decisions are made by vote of the majority. There is 
 always the power of appeal from them to the ordinary courts of 
 justice; and to admit of this appeal, the execution of sentences 
 is deferred for fifteen days after being promulgated, unless in 
 cases where, for the sake of the crops, it must be carried out at 
 once. After fifteen' days, if no appeal has been made, the deci- 
 sions of the council are looked on as final. When necessary the 
 council summon a lawyer or an engineer to their assistance. All 
 charges of this council are paid by whoever loses the case. The 
 director-general is not allowed to carry on any lawsuit on the part 
 of the society without the previous sanction of the council of arbi- 
 tration. 
 
 Finance and Superintendence. 
 
 "The money transactions of the society are under a cashier, 
 who has to give a security for $4,000, and who is responsible for 
 all connected with the cash. His chest has three keys, of which 
 he keeps one, the director-general another, and the third is held 
 by the largest shareholder of the society who is a member of the 
 general assembly and happens to live in Vercelli. Money is issued 
 on the checks of the director-general, and once a month he and 
 the member who keeps the third key of the cash-box count the 
 cash, and audit the cashier's books. 
 
 "To effect the distribution of the water, the area irrigated is 
 divided into a certain number of districts (at first only four but 
 increased since) , in each of which there is an overseer in charge 
 of the irrigation, termed the delegato, who receives his orders from 
 the director-general, and several guards or water-bailiffs, termed 
 acquaiuoli. These officers patrol the water-courses; see that the 
 modules are discharging their proper amount; that the water that 
 passes off the fields is not running to waste, but is caught in the 
 catch-water drains, from which at a lower level it can be again 
 utilized (a point attended to with admirable care in the Pied- 
 montese irrigation), and do all the other ordinary duties con- 
 nected with their position. Neglect of duty or disobedience of 
 orders subjects them to fines, reduction of salary, or dismissal." — 
 [Moncrieff, pp. 230-234. 
 
 The Government and the Association. 
 
 An Analysis of the Lease of Waters to the "General Association of Irrigation West 
 of the Sesia," Piedmont, 1884- 
 
 For the purpose of bringing out as (ilearly as possible the rela- 
 tions existing between the government and this great irrigation 
 
324 ITALIAN IRRIGA TION LEGISLA TION. 
 
 association, I have made an analysis of the agreement between 
 them, and, doing away with superfluous verbiage, have brought 
 the essential points together under the headings which have 
 seemed adapted to the matter and calculated to convey the best 
 idea of its scope and bearing, as follows: 
 
 Water Rights and Privileges. 
 
 The government granted to the association, for a period of 
 thirty years, the exclusive right to the use and control of the 
 waters of the three large state canals, Ivrea, Cigliano, and Rotto, 
 derived from the Dora Baltea river, to the extent of such volume 
 as might be necessary to properly irrigate the districts of Vercelli, 
 Casale, and Biella, wherein were situated the lands owned by the 
 members of the association. At all times the volume of water to 
 be delivered was to be limited by the total capacity of the canals, 
 which was 870 modules, or 1,750 cubic feet per second, and by 
 the previous engagements of the state to deliver, of this amount, 
 387 modules to holders of old grants-in-perpetuity of water-rights. 
 
 The supply of water furnished was to be negotiated for each 
 irrigation season in advance — the summer season being held to 
 commence with the spring equinox and end with the autumn 
 equinox, and the winter season to embrace the balance of the 
 year — and, with the exceptions noted, the supply during each 
 such irrigating season was to be delivered by the three canals in 
 proportion to their respective capacities, and maintained at a 
 steady flow equivalent to the amount engaged. During the sum- 
 mer — the season of abundant supply and the season of greatest 
 demand — the volume delivered was to be governed by the de- 
 mand of the association made before the thirty-first of January 
 preceding, and by the limitations already spoken of. 
 
 The government reserved the right of closing the canals for neces- 
 sary repairs according to custom during the spring and before the 
 first of April, at which date, unless some extraordinary obstacle or 
 reason prevented, the waters were to be let in. With this special 
 exception, and the general exceptions which follow, during the 
 term embraced by the winter season water was to be kept flowing 
 in the Ivrea canal to a depth of 4.6 feet, in the Cigliano to a depth 
 of 4.3 feet, and in the Rotto to a depth of 2.6 feet, according to the 
 official gauges in the canals respectively; and the amount thus 
 conducted was to include the winter supply due the old grantees 
 of water-rights as well as that at the disposal of the association. 
 
A SSOCJA TION IN PIEDMONT. 325 
 
 Should it become necessary at any time during the year to exe- 
 cute extraordinary repairs to either of the canals, or the headworks 
 in the river supplying them, the association was obliged to suffer 
 the loss of water for the time, without claim to rebate on its pay- 
 ment for the season. Should the supply of water in the river at 
 any time fall short of the amount sufficient to supply the flow 
 demanded, the deficiency was to be divided between the canals in 
 proportion to their summer volumes of flow, and be borne by the 
 association without recourse for loss. 
 
 The state was restrained from issuing privileges to any other 
 person or association, for the diversion of water from the Dora 
 Baltea or Po, for irrigation in either of the three districts included 
 within the area to be served by this association. The state reserved, 
 however, the right of using the three principal canals, or either of 
 them or the secondary branches, for the irrigation of other dis- 
 tricts, provided this could be done without diminishing the supply 
 required by the association. The state also reserved the right of 
 collecting the surplus drainage waters from irrigation, below the 
 lands of the members of the association, and of re-disposing of 
 them for irrigation in the lower district of the Lomellina. 
 , The water was leased to the association for the use of its mem- 
 bers, and not for sale to persons not members, and except in cases 
 of urgent demand when a casual watering might be given the 
 lands of some outsider, the association was prohibited from taking 
 more water than its members required, and from delivering it to 
 others than members for use. In the event of the government 
 authorizing or causing a canal to be built from the river Po, so. 
 as to command the districts to which the agreements related, the 
 association was to have the privilege of taking the waters of the 
 Po, in place of those of the Dora Baltea, at an advanced rate of 
 payment, as elsewhere spoken of.' 
 
 Management of the Waters and Works. 
 
 The management of the diversion of the waters from the rivers, 
 and of the upper portions of the canals down to the point of gaug- 
 ing in each, was to be wholly in charge of the government agents; 
 the gauging was to be in charge of the government engineers, and 
 thenceforward in the canals the association was to take charge of 
 the flow of the waters and their distribution, except as might be 
 
 ^ Such a canal was afterwards built, as will be shown in the next chapter. 
 
326 ITALIAN I R RIG A TION LEGISLA TION. 
 
 necessary in effecting repairs to works, as will hereafter be. seen. 
 The unit of measurement in the distribution as well as the original 
 delivery of the waters, was to be the module defined and legalized 
 by article 643 of the (Sardinian) civil code, and equivalent to 
 2.047 cubic feet per second. The association was to apportion 
 and deliver to the holders of the old water-rights the quantities of 
 water due each, to the aggregate volume of 887 modules during 
 summer, as they had been delivered in the past, and according to 
 a schedule annexed to the agreement. Should the association 
 fail to deliver these waters, the state reserved the right to take 
 charge of the works, and deliver them. 
 
 The state, at its own expense, was to preserve and protect the 
 three principal canals and all structures immediately connected 
 with them. The work of ordinary maintenance and repairs, on 
 all irrigation works, was to be performed by the agents and engi- 
 neers of the state, yearly, at the expense of the association. The 
 state assumed the responsibility of managing the main works only 
 to an extent sufficient to deliver the waters at the points of main 
 distribution. Beyond that, the association was to conduct the 
 operations and bear the expense of every kind necessary for deliv- 
 ering, distributing, and employing the waters leased, and also th^ 
 expense of maintaining proper drainage facilities to save the sur- 
 plus waters after use. 
 
 Water-Power. — Revenue and Rents. 
 
 The state also accorded the association the use of the royal 
 establishment and mills of Salasco, to be used by it in the admin- 
 istration of the works, and in cleaning and handling the grain, 
 rice, and other produce paid by the irrigators for water rents. The 
 society was to keep the establishment in repair, and be responsi- 
 ble for loss by fire or otherwise. The water-power of the canals, 
 beyond that necessary for the above named establishment, and 
 beyond that necessary for the existing or new mills of the members 
 of the association, devoted for their own private use, was reserved 
 to the state. [The introduction of new machinery into the Salasco 
 establishment by the state, and its use by the association, was also 
 the subject of articles of agreement, but these it is unnecessary to 
 summarize here.] 
 
 The annual dues from the holders of old water-rights were to 
 remain as before, payable to the state. All other income from the 
 
ASSOCTA TION IN PIEDMONT. 327 
 
 use of the waters delivered to the association, except that which 
 might be derived by the state from the use or disposal of water 
 power, as elsewhere explained, was to be to the benefit of the asso- 
 ciation. The association was accorded full power to fix its rates 
 for water to be delivered to its members as consumers. In return 
 for the use of the waters, the association was to pay the state for 
 the water used by it during the summer season, at the rate of about 
 $80 per cubic foot per second. Payment to be made before the 
 thirty-first of December of each year, and to be collected the same 
 as taxes. 
 
 General Conditions. 
 
 All the waters, rights, etc., were turned over to the society as 
 they existed, the society assuming all responsibility in their man- 
 agement, except as stipulated to the contrary in the agreement; 
 and only in the case of their proving profitless by reason of abso- 
 lute failure of water, or a raging plague, or a war being waged in 
 the locality, could the association have recourse against the state 
 for a remission of its dues. The state by its engineers was to pre- 
 pare and cause to be published at the joint cost of itself and the 
 province of Vercelli, a hydrographic map in detail of the whole 
 region covered by the agreement. The state reserved the power 
 to appoint a special commissioner to represent it in the councils 
 of the association, and to care for its interests generally under the 
 agreement. This commissioner was not to have any vote in the 
 assembly or syndicate, but was simply to have a voice to speak for 
 the state when necessary. The association was required to deposit 
 a money bond equivalent to about $60,000, to be held bj'^ the state 
 as a guarantee of the good faith of the association and the pay- 
 ment of its dues. But for the first year the association was to be 
 permitted to use this sum for working expenses if necessary; or in 
 after years in case of great necessity, of which the state adminis- 
 tration was to be the judge, and upon an agreement made at the 
 time to return it within a limited period. [There were other pro- 
 visions about the extension of the works by the state, and the Use 
 of such new works by the association, which it is unnecessary to 
 summarize here.] 
 
328 ITALIAN IRRIGATION LEGISLATION. 
 
 SECTION III. 
 
 Organization of Irrigation Associations. 
 The Present Law for All Italy. 
 
 The Sardinian code did not contain any provision for the for- 
 mation and management of irrigation associations. A law similar 
 to that of the former kingdom of Italy, promulgated at the order of 
 Napoleon, and hereinbefore transcribed as the law of Lombardy, 
 made such provision in detail for Piedmont, and, as we have seen, 
 the great irrigation association of the country was recognized by a 
 special law sanctioning the lease of the waters of the crown canals 
 to be used under its management. 
 
 When, in 1865, the code for all Italy was formed, however, there 
 was incorporated in it a number of articles which declared the 
 liberty and power of forming associations, specially for such pur- 
 poses as irrigation and drainage, and formulated the principles to 
 be observed in the management of their affairs. These are to be 
 found in articles 657 to 661, inclusive, under the title, " In what 
 way servitudes are to be exercised," and in articles 673 to 684, in- 
 clusive, under the title, "Of community of property." (See Ap- 
 pendix II.) I write from these rulings an abstract which is pre- 
 sented under the two subheadings next following: 
 
 Voluntary Association of Landholders. — Civil Code, 1865. 
 
 Where in a natural irrigation, reclamation, or drainage district, 
 a community of interest exists such as to clearly render coopera- 
 tion amongst the landholders advisable, in order to effect the de- 
 sired purpose of irrigation, reclamation, or drainage, as the case 
 may be, these owners may form an association to jointly act in the 
 matter. For such free association it is only necessary that the 
 assent of the members be had in writing, and that the by-laws 
 under which they propose to operate be similarly recorded. (Art. 
 657.) 
 
 Such organizations are governed by the action of a majority of 
 their members, who represent at the same time a majority interest 
 in the property entered and benefits of the association. Thus, to 
 constitute a majority there must be, not only more than half of 
 the parties at interest, but these parties must represent more than 
 
FRESENT LA W OF ASSOCIA TION. 329 
 
 half of the total property interest signed for in the association 
 itself. (Arts. 658 and 678.) 
 
 The resolutions and determinations of such a majority are bind- 
 ing upon a dissenting minority in the association. Assessments 
 may be levied, which become a lien on all the property repre- 
 sented in the association, and collectible the same as taxes. If at 
 any time a majority, as already defined, cannot be had for or 
 against a proposed measure, or if the determination of a majority 
 may threaten detriment to the interests at stake, the judicial au- 
 thority of the province may look into the matter, and, if necessary, 
 appoint some one to administer the affairs of the association. 
 (Art. 678.) 
 
 No one can be compelled to remain a member of such an asso- 
 ciation; but lands which have been entered as being represented 
 cannot be withdrawn during the period for which they are entered, 
 up to a Umit of ten years. Thus, any person joining such an asso- 
 ciation is admitted as the representative of his certain specified 
 property in the district, and thereupon is entitled to representation 
 as an individual, and also as the owner of a certain interest, pro- 
 portioned to the whole as may have been agreed on. He may 
 thereafter himself withdraw; he may sell, lease, or hypothecate 
 his interest to others, who may represent it in the association, or 
 he may leave it without representation; but the property itself is 
 held to the agreement for at least ten years, unless the judicial 
 authority, on due hearing, may be shown the justice of releas- 
 ing it. (Articles 681 and 679.) Furthermore, no individual own- 
 ing a part of a property thus joined in common interest can be 
 allowed to withdraw, even by the courts, if the part so withdrawn 
 be such as to defeat the purpose of the association. (Art. 683.) 
 
 Each individual member of such an association may proceed 
 against each other individual member, and compel him to con- 
 tribute his share towards the proper maintenance of their com- 
 mon interest, unless the directory of the association releases those 
 proceeded against, or they release themselves by an abandonment 
 of their interest. (Article 676.) But no individual can make 
 any change in the property owned in common, no matter how 
 much to the advantage of all it may appear to be, unless the 
 others consent. (Article 677.) The proper preservation of a 
 common interest does not necessarily imply a change, however; 
 so that each individual can be held to sustain the acts of every 
 
330 ITALIAN IRRIGATION LEGISLATION. 
 
 other individual associate, wherein it can be shown that such acts 
 are necessary for the preservation of their joint interest. 
 
 Such an association can only be dissolved at the end of the 
 time for which it was formed, or by resolution of a majority ex- 
 ceeding three fourths, or when a dissolution may be effected with- 
 out serious detriment to the interests involved. In the first case, 
 when such associations are formed for definite periods of time, 
 the fact of formation binds all the property for that time; and, 
 hence, until its expiration, except in the cases which follow, the 
 association cannot be dissolved. In the second case, the majority 
 required is not only more than three fourths the individuals of 
 the association, but, also, a representation of more than three 
 fourths the interest involved. In the third case, the question — 
 as to serious detriment to interests involved — is always to be 
 decided by the courts; so that, an association being formed, to 
 dissolve it before the time, an application has to be made by par- 
 ties interested, and the courts have to be shown that no inter- 
 ests are to suffer by the dissolution, before it will be authorized. 
 (Article 660.) 
 
 Compulsory Formation of Associations. — Civil Code, 1865. 
 
 The foregoing embodies the general idea of a free association, 
 where all the parties voluntarily join in the movement. But the 
 law does not stop here: We find in article 659 that the "judicial 
 authority" — ^that is, the judges of the superior court of the province 
 (an appeal being open to a higher tribunal) — "when it is a case 
 of the exercise, the preservation, or the defense of a common right, 
 of which it is impossible to make a division without serious in- 
 jury," may order the formation of an association of all owners of 
 lands in any such district, when a majority of them shall have 
 demanded such organization, and the others shall not, on being 
 heard, have been able to show good reason why the action should 
 not be taken. 
 
 Now, " a case of the exercise, the preservation, or the defense of 
 a common right, of which it is impossible to make a division with- 
 out serious injury," may be presented in an irrigation district, and 
 it is almost always presented in a drainage or reclamation district. 
 These points are judged of by the courts, and, as I have in several 
 places heretofore explained, the courts are guided in their decis- 
 ions on such matters by the opinions of engineering experts, limited 
 in number under the orders of the courts, nominated by agree- 
 
PRESENT LA W OF ASSOCIA TION. 331 
 
 ment, if possible, amongst the parties interested, or, in default of 
 such agreement, then appointed by the court itself. 
 
 Here, then, we have a result: Where a community of interest 
 exists in a district of country such that in order to manage its 
 irrigation or effect its reclamation or protection from floods, it is 
 necessary, in justice to all owners and each parcel of property, 
 that all combine in an association for the common protection or 
 the exercise of a common right, if a majority of the owners of the 
 property, representing a major part of the property owned, make 
 application to the proper tribunal to have an order issued for the 
 purpose, and, after a due hearing of all parties, it appears to the 
 court, that the interests should be combined, an order will be issued 
 compelling such combination. The minority can be forced into 
 the association; and, being in, as we have seen, the minority are 
 subject to the rulings of the majority; but in the cases where asso- 
 ciations are thus formed under orders of a court, the resolutions of 
 the majority are subject to revision by the court. (Art. 659.) 
 
 Here we find a rule parallel to that which we have before noted 
 as an established principle in France. The principle of compul- 
 sory action where an interdependence of interest clearly demands 
 it in order that a common good may be subserved. As has been 
 said, reclamation districts almost always present such cases. The 
 French apply the rule only in cases where "the water is an en- 
 emy." The Italian law is somewhat broader in its wording, so 
 that a proposed irrigation district, even, might present the condi; 
 tions which would warrant the compulsory association of the 
 owners of its lands, on the petition of a proper majority of them. 
 
 Irrigation Organization — Law of 187S. 
 
 In 1873 was promulgated a special law concerning irrigation 
 associations, which supplements the provisions of the civil code, 
 already given and discussed, and fills a space in the subject of 
 public works legislation not treated of by the general law of March, 
 1865. Chapter IV of title III of this public works law which has 
 already been written of, related to associations for artificial drain- 
 age of lands, but there was not any provision specially relating to 
 irrigation associations. The law of 1873 was intended to supply 
 this deficiency. It is substantially as follows: 
 
 The provisions of the civil code, articles 657, 658, 659, 660, and 
 661, are made the basis of the system. Every irrigation associa- 
 
332 ITALIAN IRRIGA TION LEG IS LA TION. 
 
 tion is required to specify in its regulation or ordinance, made 
 necessary by civil code, articles 657 and 659, the exact extent 
 and limits of the land that it proposes to irrigate, the means 
 whereby it is intended to provide for the undertaking, the condi- 
 tions of admission of its members, the manner of its administra- 
 tion, and the powers assigned to its administrative officers. The 
 responsibility of members is limited to the amount which each 
 pays into the society, or which is determined in the ordinance 
 adopted. Associations may specify in their ordinance means or 
 methods of arbitration between members and between members 
 and the association, but the right of appeal to the ordinary courts 
 is reserved. Associations which can show that the area of their 
 irrigated lands exceeds 20 ettari (about 50 acres) may by royal 
 decree be accorded the power and privileges of the official tax col- 
 lecting system to collect the contributions of members. The official 
 fees on documents filed by irrigation associations within four years 
 of their organization are practically abolished . The increase in the 
 value of lands consequent upon the construction of works and 
 irrigations by associations formed under this law, and comprising 
 more than 20 ettari in area, is exempted from taxation for thirty 
 years. Communities and provinces which, either alone or asso- 
 ciated with other provinces or with private individuals, undertake 
 works of diversion and utilization of public waters, are accorded 
 the privileges and favors of the present law, and existing associa- 
 tions are preserved and protected. 
 
 Irrigation Organization — Law of 188S. 
 
 Finally, in 1883 the last law relating to irrigation associations 
 was enacted as a supplementary enactment to that of 1873. Its 
 provisions are substantially as follows: 
 
 Irrigation associations formed after the promulgation of the 
 present law must have as a part of their constitution a regular 
 schedule of all the lands to be irrigated, and this schedule must 
 be continuously kept corrected to date as modifications or changes 
 may be made. In cases wherein no description by metes and 
 bounds is at hand, a topographical description and an outline 
 sketch of the tracts may be temporarily substituted. The royal 
 government is authorized to establish by decree the regulations 
 and forms according to which these schedules are to be made. 
 Associations are granted further privileges for the collection of as- 
 
PRESENT LA W OF ASSOCIATION. 333 
 
 sessments by the government tax collecting organization. All 
 lands within the perimeter of the associated district are subject to 
 the servitude of right-of-way for works of the association, but the 
 right of appeal to the courts for the decision of special points is 
 reserved. 
 
 The financial bureau of government is authorized to make loans 
 to irrigation associations. The minister of agriculture is author- 
 ized to offer premiums a,nd other substantial rewards and encour- 
 agements for examples of irrigation practice by associations and 
 communities, and also for works of storage, new works of diver- 
 sion, and canals to conduct water for irrigation. Under certain 
 conditions the same offers may be made to private individuals in 
 competition. Diversions of water greater than 30 modMles are 
 ranked as first class; those less, as second class. 
 
 AUTHORITIES FOR CHAPTER XIV. 
 
 Monci-ieff. — [Work cited as an authority for Chapter VII.] See, Chap. XV, and 
 Appendix D. 
 
 Smith.— [Wori: cited as an authority for Chapter IX.] See, Vol. II, P. IV, Ch. 
 I, Sec. 5; Ch. II, Sec. 5, and elsewhere. 
 
 Marsh. — "The evils, remedies and compensations of Irrigation;" by Geo. P. 
 Marsh (U. 8. Minister to Italy). See, Report, Department of Agricult- 
 ure, 1874, pp. 362-381. 
 
 Italian Code.— [Work cited as an authority for Chapter X.] See, Articles 657- 
 660, and 673-684. 
 
 Laws and Regulations. — Law concerning Associations of Irrigation, passed 
 March 29, 1865 ; also. Law supplementary to the above, and concern- 
 ing the extent of Irrigation Practice, passed December 25, 1883; and 
 Circular to Prefects, issued thereunder. Comprised in a collection of 
 Laws and Decrees received from the Hon. Minister of Public Works, 
 Italy. 
 
334 ITALIAN IRRIGA TION LE GISLA TION. 
 
 CHAPTER XV.-ITALY"^i 
 
 lEEIGATION ENTEEPEISE. 
 
 Seotioh \.— Forms of Enterprise— Examples of Canal Construction. 
 The Association Principle not Applied. 
 Ancient and Modern Enterprises. 
 The Great Modern Work— CavouT Canal. 
 Organization— Management— Failure of the Company. 
 
 Section II.— Concessions to Capitalized Companies— Cavoiir Canal. 
 The Cavour Canal Concession. 
 Obligations of the Company. 
 Condition of the Concession. 
 Privileges to the Company. 
 Benefits to the Company. 
 
 Section III. — Governmental Policy and Encouragement. 
 General Policy as to Public Works. 
 Tax Rebate on Land Valuations. 
 Competition in Irrigation Enterprise and Practice. 
 Hydrographic and Agricultural Surveys of Italy. 
 
 SECTION I. 
 
 Forms and , Examples of Canal Enterprise. 
 
 The Association Principle Not Applied.^ 
 
 Although, as I have endeavored to show in the chapter preced- 
 ing, the principle of association has long been very fully developed 
 and applied in northern Italy, in the matter of organization for 
 the use of water in irrigation, it has not until quite recently been 
 thus availed of for the management of enterprise in main canal 
 works. The property owners, both poor and rich — the peasantry 
 and gentry, and even the nobility — ^have participated in the for- 
 mation, and now maintain the organization of associations, over 
 almost all irrigated Lombardy and Piedmont, having for their 
 
 ' See, De Buflfon, generally; acknowledge, also, letters from Hon. Geo. P. 
 
 Marsh. 
 
CANAL ENTERPRISE. 336 
 
 object the leasing in bulk, and distribution among their mem- 
 bers, of the waters of the canals. But the canals themselves are 
 almost without exception the property of the state, of municipali- 
 ties, of ecclesiastical bodies, of corporations, of (in each instance) 
 a few rich and powerful noble families or wealthy landholders. 
 
 The association principle, of which I speak, in northern Italy, 
 was born of and derived its strength from the necessities of the 
 people for protection: on the one hand, protection from the floods 
 of water which, spreading out from the great rivers, have so fre- 
 quently devastated the lower parts of the fair valley of the Po; 
 and on the other hand, protection from irrigation water monopoly 
 which long ago implanted on the higher lands, spread its blight- 
 ing influence even more widely than did the floods theirs. 
 
 It was early realized that association, unification of effort — if 
 not voluntary, then by compulsion — was absolutely necessary in 
 the low lying districts, in order to compass a respectably efficient 
 resistance to the spreading of the army of flood waters which the 
 Alps and the Apennines periodically sent forward towards the sea. 
 The march of these floods was just as much an invasion of the. 
 country as was the advance through the fields of any of the armed 
 and ruthless hordes of men, which northern and middle Europe 
 have so often in historic times sent trooping over the plains of the 
 basin of the Po. 
 
 As organization was necessary to resist the human flood (but, 
 alas, Italy, because disorganized, has not always effectively inter- 
 posed such resistance) , so united effort on a broad scale was nec- 
 essary to control the over-running of waters, in this sarpe country. 
 That the object of this organization has not always been accom- 
 plished is a matter which need not concern us here. The facts are 
 recognized, that many thousands of acres of a most productive 
 country have been cultivated for centuries, under the protection of 
 works controlled and maintained by district organizations of the 
 people, under government supervision, that the country could not 
 have been inhabited otherwise than by successful defensive war 
 against the invading armies of waters, and that experience shows 
 the general scheme of organization, and operation, so far as the 
 political problem goes, to be the best ever adapted to a measur- 
 ably free people; and we can well understand its increased degree 
 of adaptability under social and political conditions grounded on 
 an advanced position of freedom and intelligence of the masses. 
 
 Commencing, probably, in this necessity for protection against 
 
336 ITALIAN IRRIGA TION LEGISLA TION. 
 
 floods, associations of landholders in districts were formed for pro- 
 tection against the exactions of the owners of the waters and rights 
 to use waters in irrigation on the higher lands; and the very fact 
 of the application of the principle of this form of organization 
 being made all over the country for the purpose of unifying in 
 districts the interests of the many irrigators, and thus treating for 
 and managing the waters, is sufficient proof of the antecedent fact 
 of the necessity for such action — a necessity founded in the fact of 
 the ownership of the canals and waters by those who did not them- 
 selves use or personally direct their application. 
 
 As a natural consequence of this turn in events the proprietors 
 of the canals have themselves organized in the several districts, 
 and great clashings and conflicts of interest have resulted; but 
 when opposing interests are thus locally organized they are easier 
 to deal with by third parties, and so the government as the mediator 
 in this instance, and through these organizations formed under 
 general laws, exercises that supervision which now keeps com- 
 parative quietude and admits of a corresponding degree of pros- 
 perity. 
 
 Canal Works and Enterprises} 
 
 With very few important exceptions, the main canal works of 
 northern Italy were built so long ago and under political and 
 social conditions so different from those which are present in our 
 country, and even in Italy at this day, that we find but little of a 
 positive nature, in the forms of enterprise under which they were 
 carried out, by the study of which we may profit. There was, at 
 the dates of early works, no legislation with respect to irrigation 
 enterprise, and no administration worthy of the name. The fol- 
 lowing notes will convey an idea of the origin of the great works 
 of the country: 
 
 Lombardy. — Eleventh century — Ancient works of the Romans 
 in and about Milan, restored and extended. 
 
 Twelfth century — Further extension of these works. The monks 
 of Chiaraville obtained rights to the waters of the Vettabbia, and 
 utilized them. Construction of the great canal of the Ticino; of 
 the canal of Battaglia, and of Reno, and of many others. This 
 was a period of great activity in the construction of works. 
 
 ' 8ee, De Buffon, Vol. I, Ch. I, and, also, pp. 123, 134, 153, 162, 180, 193, 227; 
 also, 8mith, Vol. I, pp. 100-102, and 196-202.' 
 
CANAL ENTERPRISE. 337 
 
 Thirteenth century — The grand canal — Naviglio Grande — even 
 yet the largest in Lombardy, was completed. The canal Muzza 
 and other great works carried out. 
 
 Fourteenth century — The Naviglio Cavico, deriving its supply 
 from the Oglio, constructed. The great canal from Pavia to Milan 
 built. 
 
 Fifteenth century — The canal Martizana commenced and fin- 
 ished within a few years — an exceptional case. The canal Breg- 
 nardo also promptly carried out in a reasonably short time. 
 
 Sixteenth century — The great lines of irrigation were extended, 
 and many minor and secondary works built. The canal of Pa- 
 derno, the only main work of importance, commenced; but it was 
 not finished until late in the eighteenth century. 
 
 Seventeenth centxary — Dominion of Spain over the country from 
 the last century. Great activity in irrigation works of detail, and 
 systemization of practice; but no new large works. 
 
 Eighteenth century, and to the middle of the nineteenth — No 
 new large works of irrigation in Lombardy, except the new canal 
 of Pavia, executed in the time of the former kingdom of Italy, in 
 the early part of this century, by order of Napoleon. 
 
 Piedmont. — Fourteenth century — Most ancient existing impor- 
 tant canals built. Early part of century: The Roggia or Gat- 
 tinara canal built. The canal Busca and Santirana, from the 
 Sesia, and the canal Langosco, from the Ticino, built in the latter 
 part of the century. 
 
 Fifteenth century — The canals Rotto and Dorea, from the Dora 
 Baltea, built. Also, the canals Commune of Gattinara, Mora, and 
 Sforzesca, had their origin in this period. 
 
 Sixteenth century — The only important work due to this cen- 
 turj', in Piedmont, is the canal Coluso. 
 
 Seventeenth century — The canal Ivrea restored, after having 
 been destroyed. 
 
 Eighteenth century — The canal of Cigliano, with its branches, 
 was constructed. 
 
 Nineteenth century (early part) — The canal of Charles Albert 
 constructed. 
 
 With one important exception, which is to be written of in the 
 next paragraphs, the canals above named constitute almost all 
 of the important works in the great irrigated region east of the 
 
 22' 
 
338 ITALIAN IRRIGA TION LEGISLA TION. 
 
 Po, and supplied from its tributaries, for although there are very 
 many secondary and branch canals, and an immense number of 
 distributaries, the main works are not numerous but large. The 
 topography of the country has not admitted of cheap works, and 
 the early policy of the government did not encourage opposition 
 enterprises. 
 
 The Great Modern Work — Cavour Canal? 
 
 Remembering what has been said in the introduction preced- 
 ing the ninth chapter of this report, about the form and size of 
 the valley of the Po and the distribution of its water-ways, we are 
 prepared to see at once the bearing of the Cavour canal problem. 
 There had been a number of canals brought from the rivers which 
 enter the valley of the Po from the Alps and course across the 
 great plain of Piedmont to the main stream running easterly at 
 its foot, but previous to 1844 the idea of calling upon the Po itself 
 to contribute a portion of its waters to this field of irrigation in- 
 dustry, it appears, had not been seriously entertained. The prob- 
 able great cost of the work had deterred even an examination of 
 the project, so it was not fully realized until about the date men- 
 tioned, that the scheme was financially feasible. 
 
 A canal on this route would have to cut across the natural 
 drainage lines and, also, other canals of the country, and these 
 were so formidable as obstacles to a great artificial water-way, 
 that it probably appeared in capacity to be an undertaking be- 
 yond reach. It was as though a canal as large as the five largest 
 in this state combined in one, was proposed to be constructed 
 from Red Bins' on the Sacramento river, around the eastern mar- 
 gin of the Sacramento valley, crossing the Feather, Yuba, and 
 Bear rivers, and the intervening creeks magnified into torrents, 
 and also half a dozen or more other large canals and any num- 
 ber of medium sized and small ones. This was about the aspect 
 of the Cavour canal project. The water-way was to give passage 
 to 3,885 cubic feet of water per second, and diminishing in capa- 
 city at successive main points of distribution, it was to extend 
 from the Po at Chivasa, at the head of the main valley, as it were, 
 around the north side of the valley to the Ticino, one of the prin- 
 cipal rivers entering the plain from the north. 
 
 When in 1854 the project had been quite thoroughly examined 
 
 ^ See, Moncrieft', Chap. XIV. 
 
THE CAVOUR CANAL ENTERPRISE. 339 
 
 and estimated upon, it was the intention of the Sardinian govern- 
 ment to carry it out as a public work, seeing that a large part of 
 the country which' it would command was already partly supplied 
 by government canals, and yet the supply of water was short and 
 a great demand existed for an additional amount. But the Cri- 
 mean war crippled the resources of the government, so that when 
 a company of English capitalists proposed to take the matter in 
 hand, the government assented, and, hence, resulted the conces- 
 sion to the Company General of Italian Irrigation, in 1862, of which 
 an abstract will be given in the next section of this chapter. 
 
 The principal object of the work was to supply water to the great 
 canals already existing, particularly at the season of low stage of 
 the rivers from which they drew their supply, at which season the 
 Po had a surplus of water to spare. The originally estimated cost 
 was $7,070,000. The contract for the canal was let for $8,875,000. 
 Contingent expenses, damages, and other matters raised the total 
 estimated cost to $10,660,000. The purchase of the crown ca- 
 nals — a part of the agreement, as will hereafter be seen — and 
 expenses accruing before income was realized, brought the total 
 sum to be paid out by the company up to $16,600,000. The nom- 
 inal capital of the company was $16,000,000, but although the 
 government guaranteed the interest at 6 per cent on that amount, 
 from the time the work was opened, the stock of the company 
 never went nearly to par, its actual resources never exceeded $12,- 
 200,000, so that it failed, and the works were thrown back on the 
 hands of the government. Nevertheless, and although the project 
 had so sad an outcome for the stockholders, the canal was built, 
 and is a most noble work, and the original transaction between 
 the government and the company affords an instructive example 
 in policy of the government towards irrigation enterprise. 
 
 SECTION II. 
 
 Concessions to Capitalized Companies. 
 
 The Cavour Canal Concession,} 
 
 The history of irrigation in Italy does not afford many exam- 
 ples of concessions for purposes of irrigation in such form that they 
 
 ^ See, MoncrieflF, Appendix C. 
 
340 ITALIAN IRRIGA TION LEGISLA TION. 
 
 can be studied in details from the standpoint of the political econ- 
 omist. The general ideas of the policy of the Italian governments 
 have been already outlined in this report, but there is no such 
 stock of practical examples to be drawn from for illustration in 
 detail, as we have found in France. Nevertheless, there have 
 been some concessions of late date worthy of mention and anal- 
 ysis, but with the exception of that to the Company General of 
 Italian Irrigation, for the construction of the Cavour canal, there 
 is no data at hand in a form which enables me to make use of it 
 in the necessarily hurried preparation of this report. 
 
 This Cavour canal concession was embodied in an agreement 
 between the government ministers of finance and of agriculture, 
 and six individuals standing for the company, and in a law bear- 
 ing date of August 25, 1862, sanctioning this agreement. 
 
 I have made an analysis of these documents and grouped their 
 principal points under headings as follows: (1) Obligations of the 
 company; (2) Conditions of the concession; (3) Privileges to the 
 company; (4) Benefits to the company; and in this form the mat- 
 ter is now presented. 
 
 An Analysis of the C'o^icession for the ^^Company General of Italian Irrigation" to 
 Construct the Cavour Canal — 186^. 
 
 ( 1) Obligations of the Company. 
 
 The grantees became obligated as follows: 
 
 (1) To form a company for the construction and working of a 
 canal by which should be diverted constantly from the river Po a 
 quantity of water not less than 110 cubic metres (3,885.2 cubic 
 feet) per second (supposing such a discharge to exist in the river). 
 
 (2) To combine the waters of said river with those of the Dora 
 Baltea, for the irrigation of the Novarese, Lomellino, and Vercel- 
 lese districts, in accordance with the law of third July, 1858. 
 
 (3) To comply with the project of the government engineers in 
 every respect. 
 
 (4) To have the headquarters of the company at Turin. 
 
 (5) To organize within two months from the promulgation of 
 the law approving of the agreement. 
 
 (6) To submit the regulations of the company to the govern- 
 ment within a month from the promulgation of the law. 
 
 (7) To construct, entirely at its own expense, the said canals, 
 with all the works belonging to, in connection with, or dependent 
 
THE CAVOUR CANAL CONCESSION. 341 
 
 on them, for taking into and passing along the canals the constant 
 discharge of water mentioned ahove. 
 
 (8) To commence the works within six months from the pro- 
 mulgation of the law. 
 
 (9) To complete the canals in every way, within four years 
 from the commencement of the works, pro^ading for every occur- 
 rence, and preparing for every event, ordinary or extraordinary, 
 even of the greatest influence, without having power to exempt 
 themselves from the liabilities assumed, and without having any 
 claims to compensation or indemnity. 
 
 (10) To observe the contracts made by the government with 
 the Association General of irrigation to the west of the Sesia, and 
 those which were in force with other parties, and to satisfy the 
 burdens, cares, responsibilities, liabilities, and obligations belong- 
 ing to the said canals and property, the state considering itself 
 relieved from ever}^ species of annoyance that may arise there- 
 from. 
 
 (11) To respect existing grants of motive power for the service 
 of industrial establishments. 
 
 (12) To carry out, at the request of the government, the con- 
 struction of catch-water and branch canals, even as far as beyond 
 the right bank of the Po, near Casale, on the basis and guarantee, 
 and with the advantages agreed on for the principal work. 
 
 (13) To obtain possession of canals, springs, water-courses, and 
 portions of water, in the same manner and under the same terms. 
 
 (14) To raise a capital for the execution of the works, of 
 eighty millions of liras ($16,000,000), of which fifty-three mill- 
 ion four hundred thousand ($10,660,000) are reserved as a fixed 
 capital for the construction of the new canal, inclusive of interest 
 during the construction; twenty millions three hundred thousand 
 ($4,060,000) shall be laid out on the payment of the price of the 
 grant of the crown canals derived from the Dora Baltea and 
 Sesia, and the remaining six millions three hundred thousand 
 lirai ($1,260,000) on the purchase of canals and volumes of water 
 of private property, and on the formation of other canals. 
 
 (15) To submit for the approval of the government the projects 
 of all the new works contemplated in the grant. 
 
 (16) To execute the supplementary works at its own expense, 
 which the government deemed necessary to insure the constant 
 supply of the main canal, and also to pay all expenses in connec- 
 
342 ITALIAN IRRIGA TION LEGISLA TION. 
 
 tion with the government inspection, superintendence, and ap- 
 proval of the works. 
 
 (17) To be responsible for the preservation of the effects in- 
 cluded in the grant, with all things pertaining thereto, in the man- 
 ner and terms laid down in the list. 
 
 (18) To hand over to government all of the above mentioned 
 effects at the end of the grant, in a proper and fair state of repair. 
 
 (19) To gauge the waters of the canal to be derived from the 
 Po, and carried beyond the Sesia, above the head of the first out- 
 let of said waters, by means of a hydrometer, made according to 
 the best hydraulic rules, and referred to bench marks, in order to 
 give a discharge of not less than ninety cubic metres (3,178 cubic 
 feet) per second, except when there is a deficiency in the waters 
 of the Po, in which case, the company shall make up the differ- 
 ence with the waters of the Dora Baltea. 
 
 (20) To lease out when called upon, to a general association of 
 proprietors west of the Sesia, all the water which flows past the 
 gauge above mentioned, at a price to be determined on by the gov- 
 ernment in concert with the society. 
 
 (21) To supply with the waters which are not thus leased out, 
 the parishes, small associations and proprietors, at a price fixed 
 by government. 
 
 (22) To retain in its service on the crown canals, of which it 
 shall be given the use, at whatever salary the government shall 
 establish, those officials employed on the direction and care of the 
 said canals, who shall be specified in a hst, and also to pay the 
 annual salary of those on the reserve or retirement list, in terms 
 of the laws in force in such matters. 
 
 (23) To deliver the volume of water necessary for the irrigation, 
 of that piece' of land in the Lombardian territory Ij'ing above the 
 Grand canal of Milan, to its left, pro%'ided the government sees fit 
 'to prolong the canal beyond the Ticino. 
 
 (24) To pay to the widow and descendants of the late surveyor, 
 Francesco Rossi, who first pointed out the possibiUty of utilizing 
 the waters of the river Po, for the Vercellese and Lomellino terri- 
 tories, the reward that was promised to him while alive, namely, 
 the sum of 50,000 lira% ($10,000), in the manner and terms which 
 shall be fixed by government. 
 
 (25) To deposit in the state treasury as a guarantee, within 
 fifteen days from the day of the publication of the law ratifying 
 
THE CAVOUR CANAL CONCESSION. 343 
 
 the grant, a million of liras ($200,000) in paper of the Italian 
 national debt, at the par value; this deposit to remain until there 
 shall have been executed works for the construction of the canal, 
 to a value of ten millions of lira% ($2,000,000) . 
 
 (26) To observe all the conditions and securities necessary to 
 develop and harmonize the essential terms of the grant, and to 
 guarantee as far as possible the reciprocal interests of the state 
 and the company. 
 
 (^) Conditions of the Concession. 
 
 (1) That if the company used the royal canals which the gov- 
 ernment granted them, it must pay for the same canals and prop- 
 erty 20,300,000 liras ($4,060,000), to be paid to the treasury in 
 three equal portions, within twelve months of the promulgation of 
 the law, by means of bills on banks approved of by government, 
 payable at six, nine, and twelve months, which might be dis- 
 counted on the exchange of London. 
 
 The pa3Tnent of the said bills should be made to the treasury 
 immediately upon the promulgation of the law. 
 
 (2) That at the end of the said fifty years, the whole property 
 and free disposal of the canal should fall into the possession of the 
 state, without any sort of compensation being due to the company. 
 
 (3) That the additional works carried out by the company at 
 the request of the government, and the contracts for purchase, be 
 approved of by law. 
 
 (4) That the expenditure on the formation of new canals, 
 besides the main one, should be fixed by general consent, or 
 by means of arbitration, and that the cost of purchasing theni 
 should be according to what is agreed on with the sellers. 
 
 (5) That the company accept as definite the sum of 53,400,000 
 liras ($10,660,000), as an estimated cost, and assume in conse- 
 quence, entirely at its own risk and peril, whatever expenses there 
 may occur in excess on the construction of the works necessary to 
 insure the constant supply and the constant passage of the vol- 
 ume of water stated in § (1) p. 340, excepting the provisions with 
 regard to the cost of maintenance and repairs. 
 
 (6) That the coupons of the bonds issued by the company 
 should be countersigned by a government commissioner. The 
 sum raised by the bonds should be deposited in the public treas- 
 ury, to be issued to the company according to the actual require- 
 ments of the undertaking. 
 
344 ITALIAN IRRIGA TION LEGISLA TION. 
 
 (7) That the company provide in due time the necessary sum 
 on which the government guarantees the interest, and that it pay 
 to the said treasury a commission of 2 per 1,000. 
 
 (8) That the bank in London through which the government 
 pays the interest should give notice, fifteen days before they fall 
 due, of the coupons or bills which may have been presented for 
 payment. 
 
 (9) That the government have the right of supervising the 
 execution of the works, and of approving them before they are 
 carried out. 
 
 (10) That the government have the right, within four years 
 from the commencement of the work, of prescribing all the sup- 
 plementary works which may be necessary to insure the constant 
 supply of the main canal. 
 
 (11) That the government have the right of watching over the 
 proper execution of whatever forms a part of the present conces- 
 sion; as, also, of inspecting the management of the company in 
 its financial affairs. 
 
 (12) That stock should be taken by the government commis- 
 sioners, in contradistinction to the company, of all the effects in- 
 cluded in this grant, immediately after the company should have 
 undertaken the execution of it, in order to establish an efficient 
 control over them. 
 
 (13) That the amount of water-rates and the price of water- 
 power, except where otherwise specified by government, should be 
 fixed by agreement between the company and the government, 
 and that these must not be varied without consent of the govern- 
 ment. 
 
 (14) That the final alienation of the water which the company 
 was to have the right to carry across the Sesia must be approved 
 of by law ; and that in this case the profits of the sale should be 
 deducted from the capital of the company, and the state should 
 pay it the interest agreed on for the rest of the capital. 
 
 (15) That the obligation of the government guarantee be only 
 conditional, and should only take effect when the net income 
 should not amount altogether to the sum necessary to make good 
 the guaranteed interest and refund. (The net income consists of 
 the revenue of every description, including the rents and the re- 
 turns of the canals and of the property handed over by the state, 
 deducting all the charges for maintenance and repairs, both ordi- 
 nary and extraordinary, besides those for administration.) 
 
THE CAVOUR CANAL CONCESSION- 345 
 
 (16) That government reserved to itself the power of prolonging 
 the new canal beyond the Ticino, to benefit that portion, hitherto 
 unirrigated, of the Lombard territory lying above the grand canal 
 of Milan to its left, giving the preference of the grant of it to the 
 present company on equal conditions. 
 
 (17) That in questions arising between the company and the 
 government, on the meaning and execution of the present con- 
 tract, the decision should be referred to three arbitrators — the one 
 ■chosen by the company, the other by the government, and a third 
 by the president of the court of appeal sitting in Turin. The de- 
 cision, provided it do not exceed the limits agreed to by the con- 
 tending parties, should be final and obligatory. 
 
 (18) That after twenty years of the occupation have transpired, 
 it should be in the power of the state to redeem the grant, paying 
 to the company the capital corresponding to the mean net annual 
 income of the last three years, at the rate of five per cent, with a 
 deduction of the sum already refunded by the guarantee paid by 
 government. 
 
 (19) That the general approval of the plans were to be given by 
 government, within the year of the commencement of the canal. 
 
 (20) That the agreement be strictly limited to the expenditure 
 of bare capital of 80,000,000 of liras, and that it have its full effect 
 only when the sum in excess of the two capitals of 53,400,000 liras, 
 and 20,300,000 liras, is being advantageously laid out on the works, 
 -and on the purchase of those works mentioned before, as being 
 supplementary to the canal. 
 
 (S) Privileges to the Company. 
 
 On the foregoing conditions, the company should have privi- 
 leges: 
 
 (1) To introduce from abroad all materials necessary for the 
 construction and maintenance of the canal, with a reduction of 
 60 per cent on the customs duties, and to introduce free of customs 
 •duties those instruments and implements of work which the com- 
 pany might need to carry out the various operations of the canal, 
 under compliance with the conditions, which, for the security of 
 financial interest, might be established by the minister. 
 
 (2) To be exempt from all registration duties on deeds and 
 ■contracts, arising from an execution of the grant, and subject only 
 to the fixed duty of one lira. 
 
346 ITALIAN IRRIGA TION LEG I SLA TION. 
 
 (3) To use the royal canals derived from the Dora Baltea, with 
 the branches of the same, and everything connected with, or de- 
 pending on them, including the factories, mills, thrashing mills^ 
 and every other workshop there belonging to the state. 
 
 (4)' To enjoy the use of the said state canals from January 1st, 
 1883, up to the end of the grant, and after that date, the state 
 should resume full and free disposal of the same. 
 
 (5) To enjoy the use of the new canal to be constructed for fifty- 
 consecutive irrigating years, beginning from the year in which the 
 newly constructed canal should commence working, if opened 
 before the middle of April. 
 
 (6) To raise the capital required for the execution of the grants 
 partly by means of shares for the fixed sum of 25,000,000 liraa, 
 and partly by bonds bearing interest at six per cent, to the amount 
 of 55,000,000 liraB. 
 
 (7) To take the place of the state in carrying out the objects of 
 the grant, and to insist on the observance of all rules in force. 
 
 (8) To alienate, with the consent of the government, all or part 
 of the waters carried beyond the Sesia. 
 
 (9) To recover all rents of every kind due the company, in the 
 same way, and with the same privileges as the law directs for the 
 public taxes, by the appointed collector. 
 
 (If) Benefits to ihs Company. 
 
 (1) All works in connection with the canal were declared of 
 public utility. 
 
 (2) The profits of the new canals, besides the main one, should 
 belong exclusively to the company for the whole period of the con- 
 cession. 
 
 (3) On the cost of construction of the canal, and on the sum. 
 raised according to agreement, government guaranteed to the com- 
 pany: 
 
 (a) An annual interest of 6 per cent, to be paid only for the ob- 
 jects of the grant, from the day in which the fifty years began to- 
 be counted. 
 
 (6) A refund of .3444 lira per cent on the sum expended on the 
 canals to be derived from the Po, and on the royal canals derived 
 from the Dora Baltea and Sesia, and on the other items of the 
 balance of the capital a refund, in proportion to the number of 
 years not yet elapsed, of the grant. 
 
THE CAVOUR CANAL CONCESSION. 347 
 
 (4) Government engaged to prohibit the opening of new fonta- 
 nili (springs) along the projected canals for a distance of 300 
 metres from the main canal, 200 metres on the principal supply 
 canals, and of 100 metres on the main branches taken off the said 
 canals by the concessionary company. 
 
 (5) Government engaged to provide that the communes, prov- 
 inces, and responsible bodies be authorized to take that number 
 of shares and bonds of the company that they might see fit, con- 
 tracting loans to meet the payment of said shares and bonds, and 
 mortgaging their income for three years ahead for the payment of 
 the interests, and for the repayment of the capital, if it should 
 necessarily exceed the natural limits of their special taxes. 
 
 SECTION III. 
 
 Governmental Policy and Encouragement. 
 General Policy as to Public Works? 
 
 The Italian government, although of late years advancing 
 rapidly in the scale of enterprise, and upon a line of policy look- 
 ing directly to the development of the agricultural resources of 
 its territory, has not, to this time gone so far as has that of France 
 in the way of encouraging irrigation enterprise. Italy owns more 
 great works of irrigation than does France. But the present gov- 
 ernment has fallen heir to them from the governments and other 
 constructors of long ago. Where irrigation is most demanded in 
 Italy works were already constructed when the present govern- 
 ment came into power a few years ago. 
 
 Other great interests were demanding attention, so that the im- 
 provement of rivers and construction of drainage works has been 
 more in the line of governmental eflfort of late years than has the 
 extension of irrigation facilities. 
 
 Encouraging Irrigation Enterprise. 
 
 A most important item of encouragement to irrigation enter- 
 prises was embodied in the law of 1873, concerning the organi- 
 zation of irrigation associations, an abstract of whose principal 
 
 ' Letters from Hon. George P. Marsh. 
 
348 ITALIAN IRRIGATION LEGISLATION. 
 
 points has been presented in the last section of the chapter pre- 
 ceding the present. Therein ■ we find amongst other items of 
 encouragement, an exemption from taxes for thirty years, on 
 the increase in value of lands consequent upon the construction 
 of new irrigation works. Again, in the supplementary law, of 
 1883, concerning irrigation associations, also noticed at close of 
 last chapter, we find the financial bureau of the administration 
 authorized to make loans to irrigation associations, and other 
 items showing substantial government favors to irrigation enter- 
 prise. 
 
 Prize Competition in Irrigation Practice? 
 
 Another step made recently is worthy of special mention. It 
 will be remembered from a reading of a former chapter,^ that, in 
 1874, the French government, by decree, offered prizes for the best 
 examples of irrigation practice, as an encouragement for the eco- 
 nomical use of waters, and a means of acquiring information about 
 irrigation, to spread abroad among its agriculturists. 
 
 The Italian government followed closely in this line of policy, 
 and by a decree issued in 1879, offered prizes not only for the best 
 examples of irrigation practice, but also for the best examples of 
 agricultural drainage, of colwatage^ and of drainage and irriga- 
 tion combined. The following is the full text of the decree: 
 
 Royal Decree, which opens a prize competition for works of Drainage, of Irrigation, 
 and of Drainage and Irrigation, combined. June 19, 1879. 
 
 HUMBERT I, 
 
 By the grace of GOD and the good will of the Nation, 
 
 King of Italy. 
 
 In accordance with the resolution of the council of agriculture, 
 at its session of 1879, which provides for the arranging of a prize 
 competition for works of drainage, of irrigation, and of colmatage; 
 
 Conforming to the proposal of our minister of agriculture. 
 
 We have decreed, and do decree: 
 
 Article 1. There is opened a competition, with the following 
 prizes: 
 
 Two of 4,000 lire ($800) and a gold medal; two of 3,000 lire, one 
 with a silver medal; and three of 2,500 lire and bronze medals, or 
 a work of a,rt of equal value, in favor of a private individual, or 
 an association that executes in the interest of agriculture, and 
 with good results, creditable works of: 
 
 DocumentH from Hon. George P. Marsh. 
 ^ See, pp. 144-148, ante.. 
 Colmatage; see, foot-note, p. 91, ante. 
 
GOVERNMENTAL POLICY. 349 
 
 (a) Drainage. 
 (h) Irrigation. 
 
 (c) Drainage and irrigation combined, using for irrigation the 
 drainage water collected. 
 
 (d) Colmatage, alternating with cultivation. 
 
 Article 2. Drainage, sub-letter (a) of the preceding article, 
 must embrace an area of marshy land not less than fifteen eitari. 
 
 Irrigation, sub-letter f&J, an area not less than twenty eitari. 
 
 Drainage and irrigation combined, sub-letter fcj, an area not 
 less than thirty eWari. 
 
 Colmatage, sub-letter (A), an area not less than ten ettari. 
 
 Article 3. Drainage may be accomplished with open ditches 
 or any system of drain-pipes, but must be so complete as to make 
 the land well cultivable for winter wheat. 
 
 Article 4. Irrigation must be done according to rule, abundant 
 distributing ditches must be provided, so that water may perco- 
 late without too great resistance. 
 
 Article 5. Water derived from drainage works may be con- 
 ducted for irrigation, to lands at a considerable distance, but it 
 must be done in a regular canal which will not obstruct its flow. 
 
 Article 6. Crops irrigated may be diversified to suit the char- 
 acter of the lands. 
 
 Article 7. The explanations of the works entering into compe- 
 tition must be transmitted to the minister of agriculture, industry, 
 and commerce no later than March 30, 1880. The work must not 
 have been commenced before the present date, and it must be 
 competitive work, excepting colmatage in progress, of which the 
 following article (8) treats. 
 
 Article 8. The work, sub-letters (a), (h), or (c), must be com- 
 pleted no later than March 31, 1882. 
 
 Those, sub-letter (d), are divided into two classes: 
 
 (1) Colmatage in progress, by means of which (the colmatage 
 itself having been executed with good result) for two years at 
 least, preceding the time specified in article 7, a crop has been 
 raised each season after the drying. 
 
 (2) Colmatage not commenced at the time of the publication of 
 the competition, but regularly carried on with satisfactory result 
 to the date specified in the preceding paragraph of this article. 
 
 Article 9. The minister of agriculture, having received the state- 
 ments of the work to be entered in competition, will have the 
 condition of the land examined. 
 
 Article 10. The work finished in accordance with article 8, the 
 minister himself shall order another examination to ascertain 
 whether the competitor has satisfied the conditions of the competi- 
 tion. 
 
 Article 11. The results of the competition shall be presented 
 in proper form to the council of agriculture, which has power to 
 award the prizes. 
 
 Article 12. I order, that this decree, provided with the seal of 
 
350 ITALIAN IRRIGA TION LEGISLA TION. 
 
 state, be inserted in the official collection of laws and ordinances 
 of the kingdom of Italy, and command that every one interested 
 observe it and cause it to be observed. 
 Dated at Rome, June 19, 1879. 
 
 HUMBEKT. 
 
 This action is one in the interest of the individual cultivators, 
 and shows the Italian government to be alive to the importance of 
 the agricultural development of the country, and to realize the 
 part which irrigation, drainage, and colmatage must play in such 
 work. The object is, of course, in so far as irrigation is concerned, 
 "to incite irrigators, to thoroughness and system in the preparation 
 of their lands, and to care and economy in the use of waters, that 
 it may become known what can be effected by such means, and 
 thus not only new irrigations be encouraged but old ones remod- 
 eled and the better managed. This line of policy was reaffirmed 
 on a broader basis in the law of 1883, of which an abstract has 
 been presented in the last chapter. 
 
 Hydrographic and Agricultural Surveys of Italy. 
 
 Finally, the Italian government has in progress probably the 
 most thorough study of its water-courses and water supply system 
 that has ever been attempted for any country. Supplementing 
 this work comes the inquiry concerning the use of waters in irri- 
 gation, now being carried on under the law of December, 1883, 
 an abstract of which has been presented at the close of the pre- 
 ceding chapter. 
 
 Circular to Prefects.— Undex the terms of this law, in January, 
 1885, the minister of agriculture, industry, and commerce issued 
 a circular to the prefects of departments, instructing them sub- 
 stantially as follows: 
 
 Up to this time there never has been made a systematic and 
 ■complete examination and exhibit of the extent of lands irrigated 
 by the several irrigation works, associations, etc., and an estimate 
 of the possible future extension of irrigation in the kingdom. The 
 necessity for such an exhibit has become absolute. There is a 
 valuable outline map, but it has not been filled in with agricultural 
 details. This data must be systematically collected at once, and 
 ■each prefect is charged with inaugurating and directing the work 
 in his province. It is suggested that a commission composed of 
 the heads of the provincial engineering and agricultural bureaus 
 
GOVERNMENTAL POLICY. 351 
 
 be formed to formulate a scheme for the work. All existing avail- 
 able data is to be collected and a schedule made of it, and an 
 «stimate is to be made of the cost of completing the work, which 
 •estimate is to be forwarded to the minister, who will then give defi- 
 nite insti'uctions to insure uniformity of work and economy of man- 
 agement in all the provinces of the kingdom. 
 
 Thus the Italian government, after centuries of irrigation prac- 
 tice within its country, is still advancing with quick steps in the 
 increase of irrigation facilities. So that it is in a position, which 
 is continually being bettered, to deal with its waters and streams 
 in a business-like way. Knowing what waters there are, what 
 claims there are against them, what use is made of those diverted 
 to satisfy such claims, and what can be effected, the government 
 ■of Italy is in a position to advance its agricultural interests, with 
 a full understanding of the outcome of every proposed move; 
 a,nd to prevent by exposure of error those movements which must 
 result only in litigation and loss. It treats such questions as 
 ■every prudent business man would those of his affairs. 
 
 AUTHORITIES FOE CHAPTER XV. 
 
 De Bw/on.— [Work cited as authority for Chapter IX.] Vol. I, Chap. I, and 
 
 elsewhere. 
 Smith.— \yi0Y\ cited as authority for Chapter IX.] Vol. 1, pp. 100-102, 196-202. 
 Jlfono-ief.— [Work cited as authority for Chapter VII.] Chap. XIV. 
 Jlfo7-s7i.— Letters and documents received from Hon. George P. Marsh. 
 Jmws and Regulations. — Collection of laws and regulations received from Hon. 
 
 minister of public works of Italy, 1885, elsewhere acknowledged. 
 
lEKIGATION LEGISLATION AND ADMINISTRATION. 
 
 SPAIN. 
 
 23' 
 
SPANISH lEEIGATION LEGISLATION. 
 
 CONTENTS, 
 
 Chapter XVI,— Old General Water Laws— Origin of Laws and Customs, 
 Ownership and Control of Waters and Water-Courses, 
 
 Chapter XVII.— Old Local Water Laws and Customs — Valencia, Mui- 
 Tiedro, and Jucar, 
 
 Chapter XVIII,— Old Local Water Laws and Customs— Almansa, Ali- 
 cante, Elohe, Loroa, and Granada. 
 
 Chapter XIX, — New General Laws of Waters— Eight of Property in 
 W^aters and Water-Courses, and Eight to Use Waters, 
 
 Chapter XX, — New General Laws— Eight of Way to Conduct Waters- 
 Eight to Abut a Dam— Expropriation for Public Utility. 
 
 Chapter XXI, — New General Laws— Irrigation Administration and Po- 
 lice, Organization and Communities. 
 
 Chapter XXII, — Irrigation Enterprise and Governmental Policy, 
 
Spanish Ieeigation Legislatiok. 
 
 INTRODUCTION. 
 
 More than in Prance or Italy, or any other part of Europe, in 
 fact, in Spain artificial irrigation is an absolute necessity to a suc- 
 cessful diversified agriculture; indeed, in extended regions of that 
 country it is almost indispensable to success in any kind of valued 
 cultivation. The Iberian peninsula lies but little removed from 
 the highly heated and almost rainless countries of northern Africa, 
 and, partaking in a marked degree of those peculiarities of climate 
 which render them in great part desert, it resembles them also 
 in being a country almost without forests, and, but for irrigation, 
 would in some important quarters follow them but a few degrees 
 less extremely in unproductiveness, also. 
 
 " It was said long ago, and with justice, that Africa begins at 
 the Pyrenees;" and in truth the landscapes, climates, and produc- 
 tions of large parts of the great central plateau, and also of the 
 extended region along the east and south coasts of Spain, are decid- 
 edly more African than European. Climatically, at least, it may 
 be maintained that Europe ends with France, and that when the 
 bordering Pjrrenees are surmounted and central and eastern Spain 
 entered, an African climate is encountered. As irrigation has 
 developed in these regions under physical conditions more nearly 
 like ours of southern California than are those of any other coun- 
 try whose laws bear examination for our purposes, it is well that 
 we have some definite idea of the resemblances. 
 
 Central Spain, a region somewhat less than 300 miles square, 
 is composed of a series of great plateaus, separated from each other 
 and bounded north, east, south, and partly on the west by ranges 
 of mountains. These plateaus lie at elevations between 500 and 
 
356 SPANISH IRRIGA TION LEGISLA TION. 
 
 3,500 feet above the sea, and slope generally from east to west. 
 The mountains on the east present no continuous formation as a 
 chain, and rise to but moderate heights above the hills bordering 
 the plateau plains, but their eastern slopes are abrupt, and drop- 
 ping to near the level of the sea, leave a narrow fringe of plain land 
 between their feet and the Mediterranean, behind which they stand 
 as a high, rugged range. North of the plateau region, and lying 
 between it and the feet of the Pyrenees, is the valley of the Ebro 
 river, near two hundred miles in length and fifty to an hundred 
 in width, opening out upon the Mediterranean towards the east. 
 South of the plateau region lies the valleys of the Guadalquivir 
 and of its branch, the Genii, sloping in the opposite direction from 
 that of the Ebro, and opening out on the southwest coast of the 
 country. While south of these valleys last named lie the Sierra 
 Nevada mountains, between whose southern slopes and the Medi- 
 terranean is a narrow border of sloping plain lands, only somewhat 
 less wide and less continuous and connected than the seacoast 
 plain of the eastern face of the country. 
 
 Aside from the aspect of the country itself as graphically de- 
 scribed by authoritative writers of note, a glance at a good rainfall 
 chart of Europe and the Mediterranean region, serves best to im- 
 press one with an understanding of the province of irrigation in 
 central, eastern, and southern Spain. By such examination we 
 find that the great central plateaus receive, as a general thing, 
 less than 10 inches of rainfall per year, of which total less than 10 
 per cent falls during the summer months. The low plains of the 
 eastern coast region receive from 10 to 20 inches per year, of which 
 about 5 per cent falls in the summer. The south coast and the 
 valley of the (lenil receive 20 to 30 inches of rainfall, but only 
 about 5 per cent falls in summer; while the valley of the Ebro 
 receives about 15 to 20 inches, with only 10 per cent presented in 
 summer. 
 
 Compare for a moment these figures with some for France, from 
 the same chart. The driest regions of that country have from 10 
 
INTRODUCTION. 357 
 
 to 25 inches per year, with 10 to 20 per cent presented in summer. 
 In nortliern Italy the valley of the Po receives a total annual rain- 
 fall of 20 to 35 inches, of which 25 to 28 per cent falls in summer. 
 It is evident that these two countries, which, as we have seen, are 
 the localities of such great irrigation development, are far less in 
 need of irrigation than is Spain. 
 
 In truth, the less elevated parts of central Spain present a cli- 
 mate quite similar to that of interior California, while eastern Spain 
 has the characteristics of the Los Angeles coast valley of our State; 
 and the fact is, that the productions are almost identical in the 
 couplets above named. In central Spain wheat is grown by irriga- 
 tion, alfalfa is a standard grazing crop, also irrigated, while grapes 
 and temperate zone fruits are irrigated or not irrigated, according 
 to the peculiarities of special localities, or to the purpose for which 
 they are being cultivated. This is the case in our central Califor- 
 nian valley. On the low plains and in the valleys opening out 
 upon the plains on the east coast of Spain, citrus fruits abound, 
 olives flourish, the grape is cultivated principally for raisins, and 
 the presence of the date palm and other semi-tropical fruits, marks 
 the similarity to our plains and valleys of Los Angeles and San 
 Bernardino. 
 
 Central Spain is the scene of many irrigation works carried out 
 in a small way several centuries ago, and at intervals of time since 
 then, of a few large works dating about a century back, of still 
 another small number of large works dating within the present 
 generation, and of a considerable number of moderately large 
 works recently commenced or projected. The valley of the Ebro 
 is the scene of some modern works and of present progress in irri- 
 gation; and the valley of the Guadalquivir is a scene of ancient as 
 well as very recent irrigation enterprise. But the irrigated Spain 
 of which the world has heard the most is that handed down from 
 the times of the Moors iti the valley of the Genii in Granada, and 
 of the valleys and plains opening out on the east coast of the 
 country, where he the garden lands of Murviedro, Valencia, Al- 
 
358 SFANISff IRRIGA TION LEGISLA TION. 
 
 mansa, Alicante, Elche, Orihuela, Murcia, and other irrigated and 
 highly cultivated districts. 
 
 Unlike the case in the great irrigated valley of northern Italy, 
 already described, the irrigation districts of Spain are very much 
 scattered, and subjected to physical conditions varying amongst 
 themselves; and in a degree much more than in Italy or France, 
 irrigation has grown up in Spain under social and political condi- 
 tions much altered from time to time and differing in some quar- 
 ters of the country from those in other quarters. Because of these 
 reasons we find less unity in the several irrigation interests, and a 
 less degree of uniformity in the customs and laws which have 
 been developed in quarters; and, hence, the treatment which I 
 have been able to give my subject in the chapters which now fol- 
 low is less orderly and systematic than that which was possible 
 for the irrigation legislation of France and Italy. 
 
OHAPTEE XVI.-SPAIN/" 
 
 OLD GENEEAL WATEE LAWS. 
 
 Section I. — Origin of Laws, Customs, and Confiicting Systems. 
 Ancient Spanish Laws. 
 Growth o£ varied Irrigation Customs. 
 
 Section II. — Right of Property in Water-Courses and Waters. 
 Roman, Gothic, and Saracen Systems. 
 Public and Communal Properties. ' 
 
 Section III. — Control and Regulation of Waters and Water-Cours 
 Rivers and River Waters. 
 Small Streams and Riparian Rights. 
 Springs and Spring Waters. 
 Rain and Torrent Waters. 
 
 SECTION I. 
 
 Origin op Laws, Customs, and Conflicting Systems. 
 
 Ancient Spanish Laws} 
 
 Primitive Spain was conquered and held by the Carthagenians, 
 of whose laws and customs but little is known. To these suc- 
 ceeded the Romans, who, on the conquest of the peninsula prov- 
 inces, introduced in them their language, customs, and legislation, 
 -ftnd of which we are quite fully informed. During the decadence 
 of the Roman Empire of the west, Spain passed under the domin- 
 ion of various barbarian nations from the north of Europe, of 
 whom, after a long period of dispute for supremacy, the Goths 
 succeeded in overcoming all others and remained masters of the 
 country (A. D. 412). These Goths, at first permitting the Span- 
 iards to retain the Roman laws and customs, which it appears were 
 popular and then in use, afterwards gradually introduced others of 
 
 ' See, Compendium of the History of the Royal Law of Spain, from the 
 Institutes of Alvarez, translated in White, Vol. I, p. 352, et seq. See, also. White, 
 Introduction ; Rockwell, Preface ; and, Wallis, Chap. VIII. 
 
360 SPANISH IRRIGA TION LEGISLA TION. 
 
 their own, that harmonized with or supplanted those of the coun- 
 try. The first written Gothic laws bore date in the^ latter part of 
 the fifth century; the first extended code is indefinitely ascribed 
 to several parts of the seventh century, and is that pubhshed in 
 Latin during the twelfth century by the title of Uher Judicum, 
 and afterwards in Spanish as Fuero de los Juices or Fuero Jusgo. 
 This Judges Statutes is composed of the edicts of the Gothic Kings 
 and of the various councils of Toledo, partly founded on principles 
 of Roman law,^ with other enactments of unknown origin, and "is 
 held as the fountain or origin of the laws of Spain." 
 
 The Gothic monarchy in Spain was overthrown (A. D. 714) by 
 the Saracens from northern Africa and Arabia, who, in Spanish 
 history, are commonly known as Moors, and who introduced their 
 own customs and legal polity. But all of Spain was not held by 
 these people, so that in the provinces thus free the Gothic laws 
 continued in force for many years. Then came a period when 
 Spain was being gradually reconquered from the Moors by two or 
 three independent Spanish principalities; during which new cus- 
 toms and laws became established in difierent quarters of the 
 peninsula; and out of these came compilations or codes put forth 
 from time to time by the several rulers. Amongst these the Fuero 
 Viejo de Castilla (Old Statutes of Castile) was promulgated at the 
 end of the tenth or beginning of the eleventh century, which after 
 and with the Fuero Jusgo constituted the fundamental laws of Cas- 
 tile as separate from Leon. This code was successively added to 
 at various times until the middle of the fourteenth century, when 
 it was amended and arranged in the form in which it is now 
 found under the naines of Fuero de Castilla (Statutes of Castile), 
 Fuero de los Hijosdalgos (Statutes of Gentlemen), and Fuero de los 
 Fasanas (Statvites of Sentences). 
 
 In the Kingdom of Leon there was, after several minor codes,- 
 promulgated (tenth century) the Fuero Real (Royal Statutes); 
 but the old Fuero Jusgo of the Goths continued in force in all 
 relating to common law. After a long period of local wars and 
 conquests, another code of the same name, Fuero Real, was pro- 
 mulgated for the Kingdom of Castile and Leon, in the middle of 
 the fifteenth century, but this was partly overthrown by the oppo- 
 sition of the nobles and people, and the old Fuero Jusgo was again 
 put in force. Following these came the Leyes de Estilo (Laws of 
 
 ' Kockwell, p. 9. 
 
THE OLD CODES. 361 
 
 the Age) which reconciled differences and explained the Fuero 
 Real so that it remained in force. During the last part of the 
 thirteenth century the famous code called the Partidas was com- 
 piled, but it was not put in force until the middle of the fourteenth 
 century, because of the wars and disturbances, and for other im- 
 portant reasons which intervened. 
 
 " The Partidas was composed in a great measure of the laws of 
 Roman codes, of chapters from the canonical law, and authorities 
 of the holy fathers. It is evident that they likewise contain many 
 ancient laws of the kingdom, and that the customs and statutes 
 of the nation were consulted, the desire being to issue a perfect 
 legal code, and peculiar to our Spain. But this important object 
 was not attained completely." — [Alvarez: trans. White. 
 
 Following the Partidas, in the middle of the fourteenth century, 
 came the Ordenamiento de Leyes (Ordinance of Laws), whose stat- 
 utes afterwards passed into the final compilation hereafter to be 
 spoken of. In 1567 was promulgated the Nueva Recopilacion, the 
 first code of laws intended for all Spain as governed by the mod- 
 ern Spaniards. This compilation has been remodeled and added 
 to from time to time, until in 1805 it was again revised, promul- 
 gated, and ordered to be observed under the title of Novisima 
 Recopilacion de las Leyes de Espaila. This newest compilation of 
 the old laws, composed of twelve books, is recognized as the em- 
 bodiment of former laws operative at its date, and forms the basis 
 and body of the Spanish law to this time. 
 
 " There is perhaps no country in the world where enlightened 
 commentaries on the various codes were more needed than in 
 Spain. After the Saracen invasion from the ninth to the four- 
 teenth century, there were no regular systems of government and 
 jurisprudence. The Roman Civil Law, which was the basis of all 
 the modern codes of continental Europe, was not much regarded 
 until the famous compilation of the Partidas was digested and 
 arranged, founded principally on its maxims. The Visigoths pro- 
 hibited, under certain penalties, the use of the Roman laws, as 
 will be seen by the Fuero Jusgo, repeated in the Fuero Real." * 
 
 * * * "At one time such was the confusion in the codes of 
 Castile, and the difficulties in their administration, that they were 
 entirely abandoned, and the Roman law resorted to as the rule of 
 decision." — [White, Introduction, p. x. 
 
 As illustrating the importance of the newest general compilation 
 and the confusion in the Spanish laws, even after its promulga- 
 tion and at least up to the time of the first part of the last reign. 
 
362 SPANISH IRRIGA TION LEGISLA TION. 
 
 and just prior to the commencement of that revival in system and 
 order which will be traced in a future chapter, the following para- 
 graph from a very instrvictive and readable work, is in point: 
 
 " Since the promulgation of the Novisima Recopilacion, there has 
 been no collection of the laws printed which approximates or pre- 
 tends to completeness. The decrees of Ferdinand the Seventh and 
 of the different Cortes are, it is true, readily accessible in print, 
 but many radical changes have been wrought, by special orders, 
 resolutions, and interpretations, which lie buried for the most part 
 so deeply in the executive archives that, for all purposes of general 
 information, they had as well been affixed to the top of the old 
 tyrant's column. Indeed, the whole system of administration has 
 undergone so many shocks and revolutions during the present cen- 
 tury that it is not always easy to determine the precise location 
 even of the archives themselves, through which the course of any 
 particular legislation is to be traced. So many councils have been 
 modified, abolished, and recreated with new functions, and the 
 duties of all and each have been so often altered and transferred 
 that, even after ascertaining the date and origin of a decree or or- 
 der, it is next to impossible, often, to discover in what vortex of the 
 documentary chaos the authoritative original may be revolving."' 
 — [Wallis, p. 69. 
 
 But, in a measure taking the place of official compilations of the 
 laws and administrative acts generally, there were the writings of 
 several authors whose works came to be regarded as authoritative. 
 Among these was Escriche, whose Dictionary of Jurisprudence has 
 formed the basis for the last section of this chapter. 
 
 We will see in later chapters, under the heading " New Spanish 
 Water Laws," that, in so far as water-right and irrigation legisla- 
 tion is concerned, at least, a very clear and complete system has 
 since been evolved. 
 
 Growth of Varied Irrigation Customs. 
 
 The foregoing brief and partial outline of early Spanish histoiy 
 and the growth of laws in two of the petty kingdoms of the penin- 
 sula, prepares us in a measure for an appreciation of the many con- 
 flicting elements that have had to be reorganized or reconciled in 
 the formation of the more modern codes of the country. Even the 
 newest compilation of 1805, in the matter of waters and water- 
 courses recognized local laws and customs, and in great measure 
 made general rules subservient to them where well established 
 and in written form. These local customs, many of which received 
 
THE OLD CUSTOMS. 363 
 
 royal sanction at some time, were even more varied than the more 
 general written laws, but they were, locally, all powerful. 
 
 "Custom is unwritten law that has been introduced by use. In 
 order to be such, and not vicious, it is required that the usage be 
 that of the people, or of the greater part of them, for the space of 
 ten years, and that it be in harmony with the general utility. Two 
 uniform judgments or sentences are one of the proofs of custom. 
 A legitimate custom has the force of law; derogates the former 
 law that is contrary to it, and interprets the doubtful law; from 
 whence it is said that there is a custom beyond the law, contrary 
 to the law, and according to the law." — [Manuel del Abosado, Vol. 
 I, p. 3.— White, Vol. I, p. 360. 
 
 It is believed that most of the irrigation customs were of Moor- 
 ish origin, notwithstanding the fact that in the reconsolidation of 
 the , country and remodeling of its laws, everything of a general 
 nature which pertained to government under the hated infidels 
 was abolished; for individuals of this race, who renounced their 
 faith and adopted that of christian Spain, were permitted to retain 
 their property and their customs; and, taking advantage of this 
 privilege, many thousands of people of Moorish, blood, but gener- 
 ally those who were descendants of Moors amalgamated with some 
 of the peoples of Spain, but who had grown up and lived in the 
 Moorish provinces as Moors, remained, forming chiefly the popu- 
 lation of the parts of Spain overlooking and bordering the Medi- 
 terranean. Now, these provinces contained the irrigation regions 
 of the country, as at that time developed. There had been irriga- 
 tion practice in Spain long before the advent of the Moors, which 
 had probably been introduced by the Romans; but there is no evi- 
 dence upon which to ground a belief that the practice had been at 
 all general, or other than on a small scale and dependent, as was 
 most of the irrigation of Roman origin, on works constructed pri- 
 marily for the supply of the domestic and sanitary necessities of 
 people living in towns. At any rate, if there had been any large 
 works, or extended practice, or peculiar customary laws, the result 
 and outgrowth of Roman irrigation enterprise in Spain, the evi- 
 dence of these had been pretty much effaced from the country and 
 the habits of the people, by the effect of wars and the incoming of 
 other peoples. The Moors, no doubt, also found irrigation practiced 
 to some extent in Spain as the result of a recent transplanting of 
 custom by the way of southern European countries, or, possibly, as 
 a direct importation by maritime people, from the countries east 
 
364 SPANISH IRRIGATION LEGISLATION 
 
 and south of the Mediterranean; but they brought it anew by the 
 way of Africa from the same nurseries of the art, and by their intel- 
 ligence and industry made some portions of Spain celebrated for 
 their fertility and the beauty of the local landscapes. On the ex- 
 pulsion of the Moors, as I have said, the provinces retaining part 
 of the Moorish or mixed blood populations, were permitted to culti- 
 vate their fields and to operate their canals with the waters allotted 
 to them by the Moorish governments, and their customs were not 
 set aside by the general laws of the country. Thus the foundation 
 was laid for the present local customary laws in the irrigation 
 regions. The people clUng to their peculiar privileges. Old claims 
 were validated by special royal grants, and some new ones created 
 upon the same basis during the early periods of Spanish rule over 
 these irrigation regions of the Moors, but Spain, generally, made no 
 great progress as an irrigation country after the expulsion of the 
 Moors, for several centuries, and until the early part of the present 
 century. 
 
 Meanwhile, as has been said, the laws of the country had been 
 several times codified, from Gothic and Roman originals, and 
 from the acts of the rulers of that part of Spain not developed as 
 an irrigation country. Thus, irrigation found no prominent place 
 in these general laws, but was regarded rather as a local custom 
 of certain provinces cut ofif from the rest of Spain by the topo- 
 graphical configuration of the country, and from the rest of the 
 Spanish people by the diSerence of race and even of language; so 
 that its governance was largely left to local custom. But, gradu- 
 ally, the art grew in other parts of Spain. The attention of the 
 rulers was brought to it only as it very slowly developed by small 
 local and individual enterprise. Other local customs grew. Con- 
 fusion resvilted. And Spain has had for a century or more as 
 difficult a problem to solve in the formation of a general law of 
 waters that would be acceptable to the people of all the provinces, 
 as California can possibly have to put forth an irrigation code that 
 will meet the requirements and ideas of her various irrigating and 
 non-irrigating communities. 
 
 Studying this ancient branch of the irrigation system of Spain, 
 we find, then, two distinct lines to follow. First — The old general 
 laws of the country, principally as governing rights of property in 
 and the right to use water in irrigation; and, Second — The local 
 customs affecting the subject, and which are notable because they 
 
THE OLD CUSTOMS. 365 
 
 present certain important details and illustrate the development of 
 certain unique principles of administration that have since found 
 place in the new laws. 
 
 SECTION II. 
 
 Right op Property in Waters and Water-Courses. 
 
 Roman, Gothic, and Moorish Systems} 
 
 The legal history of property holdings in Spain begins with the 
 establishment there of the Roman law, of which in its relation to 
 water-courses and waters we have a review in the first chapter of 
 the present report. Then came the Goths whose laws were founded 
 in the despotic system ; but these people in Spain made no such 
 radical changes as were made by dominion of similar barbarian 
 people elsewhere. Their laws pure and simple were never estab- 
 lished in Spain, but, modified by the injection of principles of the 
 ci\dl law, gave precedence to such systems as that embodied in 
 the Fuero Jusgo. Amongst the chief innovations on their laws 
 made by these Goths, was that relating to land holdings: their sys- 
 tem of land tenure was not adhered to — the waters were regarded 
 as common and the rivers as public property — and not until their 
 overthrow by the Moors in the early part of the eighth century, 
 were the streams, rivers, and water regarded as the property of the 
 ruling powers. 
 
 'But the Moors themselves became in Spain a wise people. Their 
 rulers were far-seeing and liberal to their subjects. The value of 
 water when wedded to land was fully recognized. The agricult- 
 ural prosperity of the people was not undervalued; so that perpet- 
 ual rights to water for irrigation purposes were accorded to those 
 who were in position best to utilize it, and many extended rights 
 of this class became thus established, to be long afterwards recog- 
 nized by the reconquering christian rulers, by way of courting 
 the good will of the people who submitted to them. Thus during 
 those centuries while in Italy and France the waters were owned 
 principally by despots, in Spain, by a singular fatality, the first 
 great barbarian people who, after the Romans, held the country 
 for a very long period, virtually adopted the liberal Roman law of 
 
 ' See, White, Introduction ; Eooliwell, Preface; Ayniard, generally ; Hallam, 
 chapters " Feudal System," and " Spain." 
 
366 SPANISH IRRIGA TION LE GISLA TION. 
 
 waters; and the next invaders, of another class of despots from 
 another and widely different quarter, so far changed their barbaric 
 attributes as to become most wise dispensers of water privileges, 
 and encouragers of a liberal irrigation practice. Thus was irriga- 
 tion specially blessed in the matter of freedom from oppression of 
 rulers in Spain, until in the ninth century by a christian emperor 
 in a part of the country free from Moorish rule, the feudal system 
 was introduced.' But although this system obtained firm footing 
 in northern, western, and central Spain, it was stamped out before 
 the eastern and southern part of the country, embracing the great 
 irrigation regions of that time, was wrested from the hands of the 
 Moors. Old irrigated Spain, therefore, never was subjected to 
 feudal rulers; and, as a consequence, we find there no great water 
 holdings, like in Italy, oppressing the people and resulting in mo- 
 nopoly of lands, but, on the contrary, we find the waters attached 
 to the lands, the lands held in small parcels, and the people an 
 independent peasantry. 
 
 The Divisions of Property'' — Pueblo and Communal Properties.^ 
 
 The laws of the Partidas as given in the Institutes and also em- 
 bodied in the Recapilacion, show "the division of things with 
 respect to propertyship " to have been the same with the early 
 Spaniards as with the Romans before them:" running waters were 
 a common property of all men; and rivers, a public property of 
 the nation. A marked difference, however, is shown in the im- 
 portance accorded to things the property of a corporation or a 
 community, which in the Spanish is in excess of the Roman home- 
 rule system. This is accounted for by the greater importance of 
 the local commune or pueblo in Spain. 
 
 Under the Spanish custom, towns are communities holding vari- 
 ous kinds of property in trust for the people and for the benefit of 
 the town. The use of some of these properties was farmed out for 
 rents which constituted a large part of the municipal incomes. 
 Other classes of the common property were free to the use of every 
 citizen of the town, without rent, but such use was subject to reg- 
 ulation by the town councils, and to supervision by the alcaldes 
 
 1 White, p. 85. 
 
 2 See, Institutes of the Civil Law of Spain; White, Vol. I, Book II, Title "Of 
 Thing.s," pp. 70-84. 
 
 ' Dalloz, Vols. IX and X, word " Commune;" Merlin, Vol. II, word " Commun- 
 uiUe d' habitants;" Brooks ; White, The Institutes, etc.. Vol. I, pp. 70-84. 
 
RIGHT OF PROPERTY IN WATERS. 367 
 
 and their subordinates. Of this last class of property were the 
 waters intended for irrigation. Pueblos were towns specially incor- 
 porated by governmental license, having all the powers and priv- 
 ileges of ordinary communities in the matter of holding properties, 
 and others besides. Spain received the communal system of town 
 organization, with the attendant prerogative of holding communal 
 estates, from the Romans, who developed it with their system of 
 colonizing new provinces. 
 
 "All Roman towns originally possessed certain common prop- 
 erty, but the system of holding a domain or territorium took its 
 •origin in the Roman colonies, who, going into vacant countries 
 where the land had no owners recognized by them, and where 
 they were compelled to defend themselves in common from the 
 people upon whose domain they intruded, voluntarily held the 
 land in common, except their bouse lots which they occupied. 
 
 " When they invaded Spain and dispossessed the natives, they 
 introduced the same system there. When the Goths came they 
 made no change in the system; they divided the private lands 
 between themselves and the Romans, leaving community prop- 
 erty as it was." — [Brooks-Godfrey. 
 
 Common Property of Communities and Pueblos. 
 
 " These towns had nothing which can be considered in the light 
 ■of a charter. They were not incorporated, yet they possessed all 
 the rights and the powers of municipal corporations. They did 
 not derive these powers from any charter, grant, or concession, 
 but the rights and powers took their origin from the existence of 
 the town itself, and not from any act of sovereign power." — [Dal- 
 loz, Vol. 9, .p. 149. 
 
 " This patrimony of the communities of inhabitants, to employ 
 the expression of our ancient jurisconsults,' was independent of 
 the municipal constitution which might govern them. The in- 
 habitants formed a moral person capable of holding property, 
 whether they formed a commune or not. It was something in- 
 herent to the very existence of the community." — [Merlin, word 
 cited, parts 1 and 2. 
 
 The feudal system was antagonistic to this form of organization 
 and property holding, and spreading throughout southern Europe 
 generally swept away the communal properties of the towns, but 
 in Spain, notmthstanding the many invasions to which she was 
 subjected, and notwithstanding the supremacy of the Goths and 
 the long occupation of the country by the Moors, the communal 
 right survived. "The people being almost continually involved 
 in war, it was in a measure impossible for land or water to be 
 
368 SPANISH IRRIGATION LEGISLATION. 
 
 divided into individual possessions to any great extent. The 
 towns were the centers where protection was to be found from the 
 armed bands of marauders who infested Spain in one form or 
 another from an early date. The towns were required to guard 
 the country about them in common, and it was therefore natural, 
 that the land itself, and incidentally any other rights either of 
 water or otherwise appurtenant thereto, should be held by each 
 town in common to make it the common interest to guard and pro-. 
 tect it." — [Brooks. 
 
 The estates so held by each town were called its termino. This 
 termino was known by various names, according to the class of 
 property and use to which it was put. There were: (1) Monies, or 
 woodlands whence firewood were obtained; (2) Dehesas, inclosures 
 where cattle were herded; (3) Fuentes, springs of water for domes- 
 tic purposes and for irrigation; (4) Ejidos, gathering grounds — 
 open spaces around the gates and walls where the populace gath- 
 ered, for recreation and sometimes for thrashing grain; (5) Prados, 
 inclosed fields for pasturing cattle; (6) Pastos, open pasture lands; 
 (7) Aguas, waters and water-courses for irrigation; (8) Salinas, 
 salt springs; (9) Abrevaduas, places for watering cattle; (10) 
 Vadios, waste lands, or lands not otherwise named or classified ; 
 and (11) Propios, town lots, stalls, houses, shops, market places, 
 and squares. 
 
 Nature of Communal Property Holdings.^ 
 
 It is well to be exact in our understanding of this holding of 
 communal property. It was not the property of the inhabitants of 
 a community, either severally or collectively: the proprietor was 
 the community — the moral person formed by the collection of 
 inhabitants, but distinct from the individuals. These did not 
 exercise the rights of a proprietor upon the communal patrimony, 
 for it was administered in accordance with special rules. 
 
 " From the time that men have united in a common inclosure, 
 from the time that the city, or, to employ a more general expres- 
 sion, from the time that communities of inhabitants have existed, 
 communal property has been born. 
 
 "Whatever besides may have been the political or municipal 
 regime, it was necessary for those who hved near one another to 
 unite themselves for common buildings, temples, places destined 
 for exercises and public games. 
 
 " Universitates sunt non singulorum veluti qiwe en ckdtatibus sunt 
 
 ' Dallos, Vol. X, word "Commune," p. 117. 
 
RIGHT OF PROPERTY IN WATERS. 369 
 
 theatra stadia et similia, et si quce alea sunt communia civitatum. 
 (Instit, L. 2, Tit. 1, p. 6.) 
 
 "With the progress of civilization, the relations of citizens in- 
 creased, and at the same time the resources of tlie cities. Their 
 patrimony had to enlarge. IJnder the Roman legislation a great 
 number of laws had for their object to increase the property and 
 revenues of the towns. Trajan permitted them to receive heritages 
 in trust. Soon they were authorized to receive them directly. 
 Adrian accorded them the right to receive them in accordance 
 with the laws. (Ulpian fragm.. Lib. 24, Cap. 28.) 
 
 " The towns were often despoiled of their useful and productive 
 patrimony. They were so despoiled by the emperors, and even 
 later by the barbarians. The feudal regime established almost 
 everywhere, left them hardly anything. But from the time that 
 they became free, they worked to form a new patrimony. Their 
 first properties were ramparts, a common hotel, and a belfry or 
 tower inclosing the bell of the assembly and of the prison. They 
 found resources in the assessment of their inhabitants, in the 
 donations made by some rich citizens, liberalities which ought 
 to be more abundant and more frequent in favor of a new institu- 
 tion. The fines pronounced by the tribunals were for their profit, 
 and had to be applied to the maintenance of their fortifications. 
 Sometimes the king abandoned confiscated goods in their favor, 
 or authorized them to receive commissions on public 9,uctions, on 
 the sites for fares and markets, on the measuring and weighing of 
 merchandise. (Histoire admin, des communes de France, par M. 
 Ch. Dupin, p. 175.) 
 
 "The nature of communal Jomain carries with it, as we have 
 already said, notable differences, according to the destination of 
 the properties it treats of. Let us establish the differences which 
 exist in this respect between the various common properties. We 
 will distinguish at first the common properties into properties 
 patrimonial, and common properly speaking. The patrimonial 
 properties of a commune are those which it enjoys immediately 
 for itself, or in receiving for the profit of the communal treasury 
 the revenue which comes from it: such are the town hotels, occu- 
 pied by the mayors, the houses, buildings, and manufactories 
 which can belong to a community, and which would be let for its 
 profit, the rural domains in cultivation, and which would be let for 
 the same; the taxes and rents which would be due to it; the stock 
 of furniture, library, etc., which should belong to it. Common 
 properties are, on the contrary, those of which the community does 
 not enjoy or does not receive immediately the revenue itself, but 
 which are devoted to the common enjoyment of the inhabitants 
 because it is their natural destination. Such are pasturages where 
 beasts are sent, forests in which the inhabitants have the right to 
 cut wood. 
 
 "There is a second distinction to be made between the things 
 24} 
 
370 SPANISH IRRIGA TION LE GISLA TION. 
 
 which make a part of the private communal domain, and those 
 which belong to the communal or public municipal domain. The 
 latter comprises all the things which are not susceptible of private 
 property, but which are used for a public service, as churches, 
 streets, pubhc places, fountains, etc. It must not be confounded 
 with the public domain, properly speaking, which is composed of 
 the great highways, navigable or raftable streams and rivers, ports, 
 etc. (article 538, C. Civ.), for these portions of the territory are at 
 the charge of the state, which directs the great public services. 
 
 " The things which form a part of the public municipal domain 
 have the same character as those spoken of in article 538. But 
 we give them this denomination because that, for the most part, 
 they accrue from or are presumed to accrue from the communities, 
 that they are more particularly useful to the inhabitants of_ the 
 places in their neighborhood, and that on account of this utility 
 they are placed by the law in charge of the community." — [Dal- 
 loz. Vol. X, Sees. 1799 and 1800. 
 
 Pueblo and Town Water-Rights} 
 
 Thus, under the old Spanish law, waters were held by munici- 
 palities — pueblos or communes-^as a common property for domes- 
 tic use, irrigation, and other purposes, but while their utilization 
 was free to all inhabitants of the town, it was governed by munic- 
 ipal rules, and regulated and controlled by the town officials. 
 These waters were those of springs and other sources rising on the 
 municipal lands, the waters of small streams, the right to whose 
 use dated from immemorial time or had been acquired by pre- 
 scription, and waters of rivers acquired by prescription or by grant 
 from government. 
 
 There are several royal orders dated during the sixteenth, seven- 
 teenth, or eighteenth century, commanding the provincial author- 
 ities to encourage the towns in the use of waters. Now the town 
 holdings or terminos, were frequently extended regions of country 
 in the olden time, and "there was a great deal of municipal law 
 regulating the use of water, and officers to take control of it." So 
 that the general laws respecting water-courses were often over- 
 looked and unknown, as compared to municipal regulations and 
 customs on the subject. 
 
 Under these circumstances, where the use of water in one town 
 holding interfered with that in another, the dealings were as be- 
 tween the communities and not between the individuals. In the 
 eyes of the general law the community was regarded as the indi- 
 
 ' See, authorities already cited for this section. 
 
RIGHT OF PROPERTY IN WATERS. 371 
 
 vidual in such cases. Thus, there were in Spain, rivers or streams 
 whose waters were common property to all people of Spain, and 
 other rivers or streams whose waters were common to the inhab- 
 itants of certain towns or pueblos. The general laws of waters 
 were applied to the one, while local municipal laws or customs 
 ruled in the other class. All cultivable lands of the towns be- 
 longed to the towns until apportioned out to their inhabitants. All 
 running waters available for irrigation, within their terminos, be- 
 longed to the towns, notwithstanding apportionment. Hence, 
 there was no conflict by reason of riparian claims, for under such 
 circumstances there was no riparian right. As between different 
 grantees of land from the government, or as between communities, 
 this right was known, as will be seen in the next subdivision. 
 
 SECTION III. 
 
 Control .\nd Regulation of "Watee-Courses and ^^'ATERS. 
 
 Of Hirers and their Waters} 
 
 As distinguished from a torrent, a river "runs perpetually and 
 from time immemorial," while torrent waters flow "after abundant 
 rains, or the extraordinary melting of snow, in such way that they 
 only run a certain time, and leave their beds dry the greater part 
 of the year." — [Escriche, Rio.] Rivers belong to everybody in 
 commonalty, in such way that even those of a strange land can 
 make use of them the same as the natives and inhabitants of the 
 territory through which they flow.^ — [Escriche, Rio.'] 
 
 In the use of rivers, "individual good must yield to public util- 
 ity." Xo one may put in the channel or on the bank of a river any 
 structure which may impede navigation, and any such structure 
 put in place must be removed at the cost of its owner within thhty 
 days.' 
 
 When no injury may result to the community, any member 
 thereof may erect a mill or a water-wheel on the bank or immedi- 
 ately upon the river, in such way that the course of the water is 
 not affected by the construction. Should the land be of the public 
 
 ^ Escriche, words "Agua," "Acequia," and " Sio," and laws cited from the Novi- 
 siina Recopilacion. 
 - Nov. Rec: Law VI, Title XXVIII, Part III. 
 ' Nov. Sec: Law VIII, Title XXVIII, Part III. 
 
372 SPANISH IRRIGA TION LEGISLA TJON. 
 
 domain, the permission of the government must be had; should it 
 belong to the community, the permission of the council must be 
 obtained. In erecting and using such mill or other structure, the 
 use of other similar properties must not be interfered with in a 
 way to diminish their efficiency and value.'— [Escriche, Rio.\ 
 
 The waters of rivers, whether navigable or not navigable, which 
 of themselves or by junction with others follow their course into 
 the sea, are not and cannot be private property, but belong to the 
 public. — [Escriche, Agua, III.] 
 
 Unless the town or council destines the waters for its own use, 
 any person may take from a public river, by means of a ditch, 
 the water which he may require. Should the land belong to the 
 pubhc domain, or should it belong to the community, the permis- 
 sion of the government, or of the council, as the case may be, must 
 first be had; and prior rights of all others to the waters must first 
 be assured." — [Escriche, Rio. 
 
 From which it follows that no one could make a diversion with- 
 out its being determined whether or not others were to be injured, 
 and whether or not the town required the waters for its uses; and 
 that such diversions could only be made to the extent which the 
 person required for his own use. 
 
 No one may construct from a navigable river any ditch or canal 
 that may embarrass navigation; and should there be one already 
 made, either new or old, it must be stopped up or destroyed at the 
 cost of the owner, for the reason that public utility must be pre- 
 ferred to the good of individuals." — [Escriche, Acequia, and Agua, 
 III. 
 
 In utilizing the waters of rivers not navigable, but which join 
 and contribute to the volumes of those which are so, diversions 
 must be made in "such a way that there may be no want of water 
 for navigation." — [Escriche, Rio. 
 
 " But should the river not be navigable any resident of a town 
 through which it passes may take out a portion of its waters, and 
 construct a ditch for the irrigation of his lands, or to move his 
 mill or water wheel, or for other purpose that may interest him, 
 provided he does it without any injury to the common use, or the 
 destination that the town may have given the waters, and under 
 the understanding that if the ditch has to cross lands not his own, 
 of the royal patrimony, or of the municipality, the permission of 
 
 1 Nov. Rec: Law XVIII, Title XXXII, Tart III. 
 
 2 Nov. Rec: Law VIII, Title XXXII, Part III. 
 
 ■' Nov. Rec: Law VIII, Title XXVIII, Part III. 
 
CONTROL OF WATER- COURSES. 373 
 
 the owner, of the king, or of the municipal council will be indis- 
 pensable."^ — [Escriehe, Arequia. 
 
 The owners of lands bordering non-navigable rivers " may use 
 their waters for the benefit of their estates or industries," but 
 '' without injury to the communal use, or to the use which the 
 towns, on their transit may have put them," and " subject to the 
 modifications laid down in the laws, orders, and decrees spoken 
 of."— [Escriehe, Agua, III. 
 
 In 1788 the local general administrative officers of Spain and 
 of the Spanish possessions were instructed, by royal order, "to in- 
 crease the productiveness of the country by the use of all the 
 waters" that could be applied in irrigation to the benefit of the 
 lands of their respective towns; and for this purpose to "endeavor 
 to take out ditches from the rivers, tapping them at the most con- 
 venient points, and without interfering with their flow, or preju- 
 dice to the lower communal properties and districts;" taking care 
 to discover, bring to the surface and utilize, also, the waters which 
 flowed through the sands and gravel below the ground's surface.'' 
 — [Escriehe, Aceqvia. 
 
 In 1819, "with the object of promoting agriculture," by royal de- 
 cree, special inducements, privileges, and immunities were offered 
 to "municipalities, communities, companies, ecclesiastical bodies, 
 or private indi-siduals, who, conformable to previous authorizations 
 by the government, construct, at their own expense, ditches or 
 canals for new irrigations." The waters for these irrigations might 
 be taken " from rivers of great volume, or gathered together from 
 many rivulets or small sources to one point, or drawn out from the 
 bosom of the high mountains;" but in each case the project was to 
 be first sanctioned and the utilization authorized by the govern- 
 ment.' — [Escriehe, Aceqvia. 
 
 Notwithstanding the special encouragement offered to utilize 
 pubUc waters in irrigation, and the instructions to local adminis- 
 trative authorities to so use them for the benefit of their town lands, 
 and notwithstanding the general rules as to \itilization of waters 
 by communities and individuals, all diversions or utilizations were 
 subject to prior claims of use: " No individual or corporation can 
 divert from their source nor in their course, flowing waters or rivers 
 that from ancient times have irrigated other lands lower down, 
 
 1 Nov. Rec.: Law VIII, Title XXVIII, and Law XVIII, Title XXXII, Part III. 
 '' Nov. Rec: Law XXVII, Title VII. 
 ' Royal Decrees, August 31, 1819. 
 
374 SPANISH IRRIGA TION LEGISLA TION. 
 
 the which cannot be deprived of the acquired benefit, in favor of 
 others, who from the fact of not having utilized the waters before, 
 consecrated the right of those who did." ' — [Escriche, Acequia. 
 
 Of Small Streams and Riparian Rights.^ 
 
 As already remarked, the regulation of the use of waters of small 
 streams, such as were ordinarily used for irrigation in Spain under 
 the old system, was left very much to municipal ordinances and 
 ancient local custom, and of course these varied in different parts 
 of Spain, but Escriche made a code governing rights on these 
 streams, as applicable where no such ordinances or customs pre- 
 vailed, which he says is "founded on equity and the interests of 
 agriculture," and on the laws which he refers to. I present trans- 
 lated extracts, without comment except to call attention to the 
 fact that on several important points the new law of waters has cer- 
 tainly not been framed on this author's writings as an authority. 
 
 The first extracts are applicable to "running waters which may 
 not come under the head of those which nobody can utilize with- 
 out license or authority:" in other words, to the waters of such 
 small streams that neither the provincial nor the general govern- 
 ment had seen fit to declare navigable or floatable, or establish 
 regulations for, and which were not within the jurisdiction of a 
 pueblo or community where local regulations had been made or 
 enforced for the governance of the streams and use of their waters. 
 The author referred to wrote as follows: 
 
 "The waters of fountain heads and springs are the property of 
 the owners of the lands on which they rise or of the lower fields, 
 who have acqmred the right to their utilization, as long as they 
 remain within their precinct, but as soon as they flow out of it, 
 they become running waters, aqtia profluens, and belong, like all 
 common things, to the first who may occupy them, as far as he 
 needs them. 
 
 " The first persons who can make use of them are the owners of 
 the properties which they wash or cross. 
 
 " If running water passes between the properties of different 
 owners, each one of the latter can use it for the irrigation of his 
 property, or for any other object; not entirely, however, but only 
 in the part that belongs to him, because all have equal rights, and 
 consequently, they can prevent each other from taking more than 
 their respective shares. 
 
 1 Royal Order, April 5, 1839. 
 ^ Escriche, word ^'Agua," § ] 
 
 IV. 
 
CONTROL OF SMALL STREAMS. 375 
 
 "When the water passes within a property, the owner can use 
 it arbitrarily, for, since the hoth banks are his, he has not to sub- 
 ject himself to the interests of another riparian owner; but at the 
 outlet of his estate, he must return it to its natural or ordinary 
 channel, without ha\T[ng power to absorb it, or entirely consume it, 
 nor give it another direction, because it does not bdong to him as 
 a property, but only to the extent of the use which he can make 
 of it in its passage. 
 
 " Since, then, every riparian proprietor can use the water which 
 passes by the edge of his property to irrigate it, it is clear that he 
 can open drains, irrigating canals and ditches, and even construct 
 a dam or other structure to take and carry it to his property, pro- 
 vided he does not make it overflow the higher lands against the 
 will of their owners, or inundate the lower lands in a way that 
 may cause injuries, nor hold it in such a way that the neighbors 
 are deprived of their accustomed irrigation/ 
 
 " None of the riparian proprietors can construct works on the 
 property of another without his consent, nor even raise on it a weir 
 or dam to cause the waters to enter more abundantly on his prop- 
 erty; since all have the same rights, the works ought not to be 
 made, except in such a way that the water will be divided with 
 equality. 
 
 " But this principle of equality in the division of the waters is 
 subordinate to the interest of agriculture, which will regularly 
 demand that the greater quantity be devoted to the estates of 
 greatest extent, as the Roman law required. Nevertheless, as the 
 largest estate does not always need the greatest amount of water, 
 the maxim of the Romans ought not to be applied except under 
 certain restrictions. 
 
 "As the higher proprietors cannot absolutely deprive the lower 
 ones of the use of the water, but must restore it to its natural chan- 
 nel after having made use of it, except the inevitable loss caused 
 by the irrigation; in the same manner, in an inverse sense, the 
 own'ers of mills, water-wheels, fulling mills, factories, and other 
 industrial establishments, have no such right to all the water nec- 
 essary for the movement of their machines that they can deprive 
 totally of it the proprietors of the higher properties. 
 
 " Nevertheless, when it is a question of mills in a country where 
 there are few, and, on account of a drought they need all the 
 water, there ought. to be suspended on their account, for the com- 
 mon good, the irrigation of the meadows and the other properties 
 as long as the state of drought lasts. 
 
 "A riparian proprietor can transfer the right of taking the water 
 by renunciation, cession, sale, or other means in favor of the pro- 
 prietor on the other side, or of him lower down, and if, having two 
 properties, he gets rid of one, he can reserve the exclusive right of 
 using the water for that which he preserves, or conceding it for that 
 which he transfers. 
 
 ' Nov. Rec.: Law XIII, Title XXXII, Part III. 
 
376 SPANISH IRRIGATION LEGISLATION. 
 
 "A riparian proprietor can similarly acquire, with respect to 
 another, the exclusive right to the water by means of prescription. 
 
 " The riparian proprietor cannot, without the consent of the other 
 riparian owners interested, concede to a third party, to their injury, 
 the power of taking water from the same stream or on to his estate, 
 nor himself u^e the water to irrigate another property which be- 
 longs to him, but which is not situated on the bank; although this 
 right can be acquired by prescription. 
 
 "When a property on a river bank is divided amongst several 
 joint or common owners, in a manner that the portions which- are 
 assigned or sold to any of them, and which now form other small 
 properties not bounding on the stream, they preserve, nevertheless, 
 one with another, their right to the water in the same proportion 
 that they had before the division, even when nothing should have 
 been stipulated on this subject. 
 
 '"The proprietor who augments the extension of his riparian 
 property by the acquisition of lands contiguous, which increases 
 it, cannot take more water than formerly for his irrigation, to the 
 detriment of the other interested parties; since, if he had that 
 power he could in time render illusory the rights of the other 
 riparian proprietors. 
 
 "The bed, site, or land where the running waters flow, ought to 
 be divided amongst the riparian proprietors, according to the 
 frontages of their estates, in case of its remaining dry from the 
 effect of time, by any casualty of superior force, or by changing 
 the water from its course." ' — [Escriche, Agua, § IV. 
 
 Of Springs and Spring Waters.'' 
 
 Upon the subject of springs, spring waters, and the rights 
 thereto, I have thought it best simply to submit a tran~slation 
 from the author already so miich quoted, as follows: 
 
 " Every proprietor can open in his house or property a fountain 
 or well of water, even when this causes the diminution of all the 
 water of the fountain or well of his neighbor, who, nevertheless, 
 will have the right to stop the work, or to demand that it be closed 
 or destroyed, when the former should have made it without neces- 
 sity or with intention to injure him.' 
 
 "He who has a spring on his property can make of it the use 
 which appears most convenient to him, because the spring is his, 
 as a part of the property, and as law I, of title. XXVIII, part III 
 says: 'Man has the power with his own property to make of it, 
 and on it, that which he may desire in the sight of God, and under 
 the statute.' Thus it is that he can use his waters to irrigate his 
 lands, or to make ponds, and even can also shut either up if he 
 
 i Nov. liec: Law XXXI, Title XXVIII, Part III.l 
 
 ^ Escriche, word "Agua," § II. 
 
 " Nov. Jiec: Law XIX, Title XXXII, Part III. 
 
CONTROL OF SPRING WATERS. 377 
 
 considers them useless or noxious. This principle has two excep- 
 tions: the first is, when a third party has an acquired right to the 
 water of the spring; and the second, when the spring furnishes the 
 water to the inhabitants of a town. 
 
 "The third party can have an acquired right to the spring by 
 title or prescription. The right can consist in the power of the 
 third party to carry the water of the spring by channel, ditch, 
 canal, pipe, or other conduit, for his lands, or manufacturing 
 establishments, which amongst the Romans was called servitus 
 acqueeductus (servitude of aqueduct) ; or in that of taking the 
 water from the spring or well for the use of his family, or for the 
 laborers in his fields, or for his beasts and cattle, servitus aquas 
 haustus; or in that of introducing his beasts or cattle on the prop- 
 erty to quench their thirst in the spring, servitus pecoris ad aquam 
 appulsus (servitude of watering place for cattle). 
 
 "The third party acquires by title the right to the spring, when 
 the owner of the latter concedes it by gratuitous or onerous ar- 
 rangement, or by testament or other final will, or when the judge 
 miay adjudicate it in a final judgment. It is acquired by pre- 
 scription, when he hasjised the water in good faith with the knowl- 
 edge and forbearance of the owner of the fountain, and during the 
 legal time without any interruption.^ 
 
 ''•'Good faith'' consists in the persuasion of the third party that 
 he has the right to make use of the water in way of servitude, 
 "without the use which he makes of it having its origin in force, or 
 in secret, nor even merely because the owner of the spring, at his 
 request, and as a neighbor, had authorized it; and this good faith 
 ought to last till the completion of the prescription, according as 
 the authors may think. 
 
 "The ^knowledge and forbearance' of the owner of the spring 
 serves as a just title of tradition, as the use of the third party 
 serves for occupation or taking possession of the right. Then if 
 the owner sees or knows that the third party makes use of the 
 water by way of servitude, and is silent and tolerates it without 
 opposition during the legal time, he manifests sufficiently that his 
 will is to authorize tacitly the right of servitude. 
 
 "Although the law exacts the knowledge and forbearance of the 
 owner, Antonio Gomez and Gregorio Lopez do not believe it to be 
 necessary, in the case where the third party may confirm his use 
 by just title, as would happen, for example, if taking you for the 
 owner of the fountain without your being so, he had bought from 
 you the servitude upon it, then he would really gain it by means 
 of use and ^good faith' even though the true owner should be igno- 
 rant of it. 
 
 " The legal time is that of ten years amongst those present, and 
 .twenty amongst absentees in the continuous servitudes, and time 
 immemorial in the intermittent services; that is to say that if the 
 
 Nov. Rec: Law XV, Title XXXI, Part III. 
 
378 SFANISJI IRRIGA TION LEGISLA TION. 
 
 use which the third party makes of the water of the fountain is 
 daily or continuous, as might happen in the 'servitude of aque- 
 duct,' it is necessary for the prescription that the third party may 
 be in non-interrupted possession of the enjojonent of the water for 
 the term of ten years, Uving in the province of the owner of the 
 spring, and for the term of twenty years living outside the prov- 
 ince; and if the use is not continuous, except at intervals, as hap- 
 pens in the servitude of watering, in that of extracting water for 
 field laborers, and even in that of 'aqueduct' when the water 
 comes only once a week, monthly, or annually, and not each day, 
 then the possession for ten or twenty years is not sufficient, but it 
 is indispensable that it may be from time immemorial.^ 
 
 "Although Gregorio Lopez and Antonio Gomez limit the neces- 
 sity for immemorial possession to the case in which the third party 
 may not have a just title, desiring that in the case of having it 
 from any one believed to be the owner of the spring, without being 
 so, the ordinary ten or twenty years may be sufficient. 
 
 "We have said, and we repeat, in accordance with law, that in 
 order to acquire a right to water by prescription it is necessary to 
 make use of it in the way of servitude, and not by force, nor clan-, 
 destinely, nor by mere favor that the owner of the spring may 
 have conceded in a precarious manner. In fact, neither force nor 
 private use can serve as foundation for the acquisition of a right. 
 What difference does it make if for ten or for twenty or more years 
 you come, violently by day and furtively by night, to take the 
 water from my field in order to carry it to yours? As long as I do 
 not give my consent, tacit or expressed, you do not advance any, 
 no matter how often you may do it, and it cannot be said for cer- 
 tain that my consent is given to you when you proceed in your 
 acts with violence, or in such a way that I may not know it. 
 
 " But not even the express permission, that I might give you to 
 use the waters, ought to be considered sufficient, in order that at 
 the end of a certain time you might cast a doubt on my benefit, 
 if I did not give it to you in the spirit of recognizing your right, 
 and of placing myself under a servitude. The familiarity which 
 is wont to exist amongst neighbors, the friendship, the desire of 
 being agreeable, and the necessity of their having frequently to 
 ask and lend mutual services, is the cause of the owner of a con- 
 ceded spring permitting or tolerating another to draw the water to 
 drink for his people, or to water at it his cattle, especially if it 
 should come in abundance, without by that wishing to deprive 
 himself of the liberty which he has of causing the effects of his 
 tolerance to cease, when it may not be convenient to him to con- 
 tinue them, it may be on account of the diminution of the water 
 of the spnng, it may be on account of the proprietor of the neigh- 
 boring estate being changed, it may be for any other reason. 
 
 ' Thus, if I should allow the water of my spring to run because 
 
 ' Nov. Rec: Law XV, Title XXXI, Part III. 
 
CONTROL OF SPRING WATERS. 379 
 
 I do not need it for my irrigations, nor other uses, and you col- 
 lect it at its exit from my field, to irrigate yours, you cannot pre- 
 tend that by the lapse of time you have acquired the right to hold 
 it, and to utilize it forever, in the same manner; and that I have 
 lost that of doing in my property anything which may impede 
 the exit of the water, and the use which you make of it. 
 
 " I have had the power to use it, or not to use it. I have been 
 able to allow it to run out of my property, because it was useless 
 to me. I have been able to allow you to make use of it, because I 
 had abandoned it. I have been able to permit that you should 
 make on your field works to collect it, because I had no right to 
 prevent them, since each one can do on his property that which 
 appears most convenient to him, but not on that account have you 
 acquired the right to the water which has not yet flowed out of 
 my field, but only to that which may be already outside of my 
 possession; and thus it is, that I can retain it, convert it to new 
 uses, and even dry up the spring, which, perhaps, may be preju- 
 dicial to me. 
 
 "When will it be said, then, you ask me, when will it be said 
 that I have acquired by prescription the right to the water of the 
 spring? When you or your ancester should have made on my 
 property an aqueduct or other obvious work which may have for 
 its object, to facilitate the course and descent of the water towards 
 your field; because, then it is presumed, that these works will be 
 constructed in virtue of an agreement celebrated with me, or with 
 my ancestor; and when, from the fact of my having permitted 
 you the use of the water, I have experienced any considerable 
 injury, then it is to be supposed that my forbearance was not the 
 effect of complacency or good neighborship, but of a right which 
 you had, and whose exercise I could not prevent. 
 
 "The owner of a spring, who has conceded to his neighbor, or 
 has allowed him to acquire by prescription, the use of the water, 
 has deprived himself, by that, of the right of enjo}dng it the same 
 as ever for the needs of his property, for he has contracted the 
 obligation of not doing anything which can impede the exercise 
 of the servitude. 
 
 " But, if the owner, changing the cultivation or the employment 
 of his land, should absorb in it, all or nearly all the water, the 
 neighbor can demand of him that he use it with moderation, and 
 leave him the accustomed quantity, or at least sufficient for his 
 property, because the right of servitude has not to remain illusory. 
 
 " The owner of a spring, who has conceded to his neighbor, or 
 who has allowed him to acquire by prescription, the power of tak- 
 ing water for the irrigation of his lands, cannot concede afterwards 
 an equal power to another neighbor, without the consent of the 
 first, unless the water should come in such abundance that it is 
 sufficient for the properties of both.^ 
 
 1 T!tm. Rec: Law V, Title XXXI, Part III. I 
 
380 SPANISH IRRIGA TION LE GISLA TION. 
 
 " Even by general rule, the servitude cannot be alienated, unless 
 the property in whose favor it is constituted may dispose that 
 (Law XII, Title XXXI, Part III, not preventing) if the servitude 
 should be for water which has its source on one property and irri- 
 gates another, the owner of this last can cede the water to that of 
 the neighboring estate after it may come to his. But this arrange- 
 ment ought to be understood without prejudice to the owner of the 
 spring, for the latter conceded to the neighbor the use of the water 
 for the necessities of his property, and not in order that he might 
 sell it; and thus the grantee cannot dispose of the water in favor 
 of a third party unless he on whom the servitude is imposed is 
 not obliged to bear, on that account, a greater burden. 
 
 "To acquire the servitude or right of taking water from one 
 property for the benefit of another, it is not necessary that the two 
 properties be so near together that they touch; and thus a propri- 
 etor can bring water from an outside property by way of servitude, 
 to irrigate his own, even when it has to pass by a road, or other 
 intermediate property, although he will have to obtain competent 
 permission from the authority, if it is a road which separates, the 
 two properties, or of the proprietor of the intermediate property, if 
 it should not be himself. 
 
 " In this last case there will be two servitudes, that of taking 
 water in the property where the spring rises, and that of con- 
 ducting it by the intermediate property, servitus aqum ductus. The 
 owner of this intermediate property cannot make use of the water 
 which passes by it, without a particular concession from the owner 
 of the spring, acceded to by the owner of the upper estate, unless, 
 as we were about to say, the water may be sufficient for the two 
 estates, then, in such case, the concession of the owner of the 
 spring, or lower estate, will be sufficient without the necessity for 
 the approval of the upper estate. 
 
 " He who has in his favor the ser-sdtude of aqueduct, or, it may 
 be, the right of conducting water through the estate of anether, 
 ought to guard and maintain the channel, ditch, canal, tube, or 
 other conduit in such a manner that it may not leak, raise, lower, 
 or do any damage to the estate where it passes. If it should be a 
 channel of water for a mill, or a ditch for irrigation, he has to sus- 
 tain and keep it up with stakes, without putting stones or large 
 rocks in it which might cause obstructions or impediments on the 
 property, and the quantity of water being of much consideration 
 he ought to conduct it by conduits of earthenware, or by leaden 
 pipes sunk in the ground, or by ditches, in such a way that he may 
 utilize it without loss or diminution on the properties which it may 
 cross.^ 
 
 " The second exception or limitation which we made above, to 
 the liberty which the owner of a spring has to make the use of it 
 most convenient to him, is, when the spring furnishes or can fur- 
 
 ' Nov. Rec: Law IV, Title XXXI, Part III. 
 
CONTROL OF. SPRING WATERS. 381 
 
 nish water to the inhabitants of a town, which has no other means 
 of providing itself with this so necessary article ; in which case the 
 owner cannot dispose arbitrarily of the spring to the injury of the 
 town, nor object to facilitate its utilization on the great principle 
 that private interest must yield to public interest. 
 
 " But, as no one can be despoiled of his property, nor of his 
 rights, not even on account of public utility, without first having 
 given to him proper indemnity, according to what is laid down in 
 Law II, Title I, Part II, and in Law LI, Title X, Part III, the 
 owner of the fountain can ask that he be compensated by the town 
 for the injury which it may cause him, if the town has not freed 
 itself from the obligation of compensation by having acquired the 
 use of the water by means of title or prescription. 
 
 "Moreover the owner always preserves the property of the 
 spring, not having transferred it entirely, and even if he should 
 have been compensated, he can make use of it, for the benefit of 
 his property, in such a way that he may not prejudice the use of 
 the town." — [Escriche, Agua, § II. 
 
 Of Rain and Torrent Waters} 
 
 In the matter of rain and torrent waters, also, I simply pre- 
 sent a translation from Escriche 's treatise: 
 
 "The owner of the higher property can retain on it the rain- 
 waters and other similar waters, using them as may be most con- 
 venient to him, even when the owner of the lower property had 
 always utilized them, and had opened a ditch or any other work 
 to receive them and to guide them over his fields, unless the latter 
 had a completed title of servitude which gave him the right to 
 take them at their exit from the higher estate, because the servi- 
 tude or subjection of the lower estate to receive the waters from the 
 higher one is generally established in favor of the latter, whose 
 owner can therefore renounce it, and because prescription cannot 
 take place with respect to the said waters; for it ought to be sup- 
 posed that if its owner has not retained them formerly, it was 
 only because he considered them useless just then, and in virtue 
 of the power which he had to retain them or let them run. without, 
 by that, wishing to lessen his right, just as a proprietor who allows 
 many years to pass without building on his land always preserves 
 the power to do so when it may suit him, without his neighbor 
 being able to prevent it, the latter pretending that he has gained 
 by prescription the right of view. 
 
 " This doctrine ought also to be applied to the rain-waters which 
 run on the public roads, and thus the higher proprietor can inter- 
 cept and take them exclusively for himself, even though the lower 
 proprietor may have frequently taken them to his ground, although 
 the said waters belong to the first one who uses them, and it is 
 
 ^ Escriche, word "Agua," § I. 
 
382 SPANISH IRRIGA TION LEGISLA TION. 
 
 equally understood that the lower proprietor did not make use of 
 them except in consequence of the power which the superior 
 owner had of taking or leaving them. — [Escriche, Agua, § I. 
 
 Note to Section III. 
 
 Those portions of Escriche's writings which I have abstracted under the 
 heading, "Of Eivers'. and their "Waters," are well authenticated by the laws 
 which he cites, and are in accord with later compilations. Those parts trans- 
 lated under the headings, " Of Small Streams and Riparian Rights," " Of Springs 
 and Spring Waters," and " Of Rain and Torrent Waters," seem to have been 
 very largely his own views of what ought to be, for the sake of " equity and the 
 interests of agriculture;" and, hence, I have presented translations, and not 
 abridgments of them. His system of riparian rights seems rather to have 
 been founded on French than on Spanish law ; for he accords all riparian pro- 
 prietors on small streams an equal right of servitude to the waters, which is 
 the French law, but for which I find no sufficient authority in the old Spanish 
 laws; and the new Spanish laws, as may be seen in chapter XIX and appendix 
 III of this volume, clearly do not recognize or establish any such doctrine. 
 There are other points in which this writer seems to have drawn on the French 
 system, and wherein he does not cite authoritj^ in the laws of Spain, which will 
 be noticed in subsequent chapters, in connection with the application of old 
 Spanish laws in Mexico. Escriche is certainly a recognized authority on the 
 old laws of Spain, but his work is certainly very unsatisfactory on the subjects 
 of this report. 
 
 AUTHORITIES FOR CHAPTER XVI. 
 
 Nov. iJec.—" Newest Compilation of the Laws of Spain." [Spanish.] Ordered 
 made for Senor Don Carlos IV. Edition published by Don Vicente 
 Salvo. Paris, 5 vols., quarto, 1846. 
 
 Escriche.—" Dictionary of Legislation and Jurisprudence." By Don Joaquin Es- 
 criche. [Spanish.] 1 vol., 4to, Madrid. See, words " Waters," " Riv- 
 ers," " Canals," and elsewhere as cited. 
 
 While. — " New Collection of Laws and Ordinances." Containing laws of Spain, 
 etc.; Judge Johnson's translation of Asa and Manuel's Institutes of 
 the Civil Law of Spain, etc. By Joseph M. White, 2 vols.. 8vo, Phil- 
 adelphia, 1839. See, parts specially cited. 
 
 iJoctoeii.— "Spanish and Mexican Law." Bv John A. Rockwell, 1 vol., 8vo. New 
 York, 1851. See, parts cited. 
 
 Da2J02.— [Work cited as an authority for Chapter II.] See, vols. 9 and 10, word 
 "Commune." 
 
 jVerHd.—" Universal Repertory of Jurisprudence." [French.] Bv M. Merlin 
 4th edition. 17 vols., quarto, Paris, 1S12-1825. See, word " Commu- 
 nity of inhabitants." 
 
 flaifam.— [Work cited as an authority for Chapter IX.] See, chapters "Spain " 
 and " Feudal System." 
 
 .Broofe—ffod/rej/.— Argument of B. S. Brooks, as cited and quoted by J T God- 
 frey, m brief for Plflf., in City of Los Angeles rs. Felez; Sup. Ct. of Cal. 
 
LOCAL ADMINISTRATLON OF WATERS. 383 
 
 OHAPTEE XVIL-SPAIN"'; 
 
 •OLD LOCAL WATER LAWS AND CUSTOMS— PEOVINOE 01 
 VALEE-CIA. 
 
 Section I. — District of Valencia — Irrigation Associations. 
 
 The District — Its "Works and Water-Rights. 
 Association, Organization, and Administration. 
 Koyal Canal Organization. 
 
 Section II. — District of Valencia— Administration of Waters. 
 The Board of Syndics. 
 Syndicate-General for the Turia. 
 The Tribunal or Jury of Waters. 
 
 Section III. — Districts of Jucar and Murviedro. 
 Jucar — District and Works; 
 
 Administrative Organization ; 
 
 System in Distribution. 
 Murviedro — District and Water-Right ; 
 
 Administrative Organization ; 
 
 Judicial Organization. 
 
 Section IV. — Districts of Alicante and Elche. 
 
 Alicante — District and Water- Right. 
 
 System in Distribution ; 
 
 Administrative Organization. 
 Elche — iJistrict and Water- Right. 
 
 Administrative System ; 
 
 Judicial or Arbitration System. 
 
 SECTION I. 
 
 Valencian Irrigation Associations. 
 
 The Irrigated District.^ 
 
 The huerta or garden plain of the city of Valencia constitutes 
 one of the oldest and, justly, most celebrated irrigation districts of 
 Spain. Its works date from the time of the Moors; its water-rights 
 
 ' See, Aymard, Chap. I; also, Llaurado, pp. 603-607; and, Moncrieff, Chap. IX. 
 
384 SPANISH IRRIGA TION LEGISLA TION. 
 
 are founded on custom which antedates existing property records 
 in the country; and its irrigation practice and regulation is the 
 outgrowth of centuries of experience unfettered by regulative laws 
 or administrative action other than those- local and self-imposed 
 by the irrigators.' A short statement of these may afford us an 
 useful lesson. I write it chiefly from the extended and interest- 
 ing account by M. Aymard, here making the general acknowledg- 
 ment that, except where special credit is given other authority, 
 that which follows concerning this district is but a liberal transla- 
 tion and abridgment of his work. 
 
 The hnerta of Valencia is on a plain 7 to 9 miles in width, gently 
 sloping from the foot of the Sierra Molino mountains to the sea on 
 the eastern coast of Spain. This garden plain comprises about 
 26,350" acres of irrigated land, supplied by the waters of the Turia 
 river, through eight main canals and their distributaries; and in 
 the midst stands the city of Valencia. The property is for the 
 most part minutely subdivided in ownership, and is held by peas- 
 ant proprietors or the hereditary tenants of wealthy owners. 
 
 " The population of the whole province of Valencia is 120 per 
 square mile, but in the irrigated portion it is vastly more, and in 
 the 26,000 acres watered by the eight canals of the Turia, there 
 are sixty-two villages, containing a population of not less than 
 72,209 souls; that is, at a rate of 1,774 per square mile; and this 
 includes no part of the city of Valencia." — [Moncriefif, p. 128. 
 
 The Turia is a torrential river, with a width of 200 to 400 feet 
 through the plain, over a shifting bottom, and with a much less 
 width, over a cobble and gravel bed, where it emerges from the 
 foothills of the mountains. Its floods, rising 15 to 20 feet, were at 
 one time a devastating agent to the city and its surroundings, but 
 levees now keep these waters to their proper course. Its low water 
 discharge is 250 to 350 cubic feet per second, which is all taken 
 up by the canals for irrigation. 
 
 The eight canal headworks are placed four on each side of the 
 river, alternating and not opposite to each other, about equidis- 
 tant apart, and within a length of 8.2 miles of the river channel: 
 the highest being 5 miles from the city and the lowest 2 miles 
 distant. These headworks are small but massive masonry struct- 
 
 ' It is not to be inferred from this, however, that local action and self-imposed 
 regulation is all that is desirable m any irrigation district, for that which is 
 good about the Valencian system has been dearly paid for by several centuries 
 of wrangling and discord. 
 
 2 Llaurado, p. 621. (For the eight canals here treated of.) 
 
LOCAL REGULATIONS— VALENCLA. 385 
 
 Tires, each with two sliding gates, of sizes — proportioned to their 
 rights — from 3^ to 7 feet in width. To each headwork is a dam 
 of masonry across the river's channel, whose -crest and length of 
 overfall is so regulated, with respect to the elevation and width of 
 the sill of the canal gates, as, approximately, to divert the proper 
 proportion of the waters into the canal without the necessity of 
 manipulating the gates for every slight variation in the river's 
 flow. The exact and relative dimensions and elevations of all 
 the dams and their headworks, gates, and sills, are recorded in 
 the archives of the city, but this item of systemization is of com- 
 paratively modern origin. 
 
 "All these weirs date from the time of the Moors, and nothing 
 is certainly known as to their foundation, but tradition says that 
 the solid masonry is carried down 13 to 17 feet below the river 
 bed, and that it rests upon piles, the heads of which are imbed- 
 ded in the masonry." — [Aymard, p. 20. 
 
 Apportiiyament of Waters — Ancient Regulations} 
 
 The apportionment of water to the canals has been made in 
 terms of a unit of measure whose real volume is indefinite. This 
 unit is called a "thread of water," and the volume of the stream 
 when all in use is divided into one hundred and thirty-eight 
 "threads," each canal taking its proportionate part of the whole, 
 according to a fixed schedule. " In studying other centers of irri- 
 gation in Spain, in all of which like in Valencia the primitive 
 dividing of water remains unaltered from the time of the Moors, 
 we find everywhere these divisions are not made by fixed volumes 
 but by aliquot parts of the total discharge. It is thus in Alicante, 
 Elche, Murcia, Lorca, and Granada. If from Spain we pass to 
 Algeria we find the divisions effected on the same principle ; and 
 we may, therefore, conclude that the apportionings of water have 
 always been made by this people upon the principle of propor- 
 tional parts. By this system of proportionality each one enjoys 
 abundance of water or sufifers from scarcity in the ratio of his 
 interest to the whole." — [Aymard, pp. 24-25. 
 
 In thus writing, our author referred, of course, to southern and 
 eastern Spain, where his examinations were conducted, and to a 
 period twenty or more years ago. There were even then many 
 irrigation works throughout other parts of the country, which were 
 
 ^ See, Aymard, Chapter II ; also, Llaurado, pp. 607-613 ; and, Moncrieff. 
 
 25' 
 
386 .SPANISH IRRIGA TION LEG I SLA TION. 
 
 due to the modem Spaniards, and where water was divided by 
 measurement of volumes. 
 
 As heretofore remarked, all of these Valencian canals date from 
 early medieval times, for it is of record that the christian Span- 
 iards found them in working order when they took possession of 
 the country after expelling the infidel rulers; but the regulations 
 whereby they are now severally administered are of recent origin, 
 although they have had codes or governing customary usages from 
 time out of mind. The seven smaller canals have each a code, 
 and two of the main branch canals each have theirs, so there are 
 nine codes, whose aggregate volume occupies over four hundred 
 printed pages; the shortest has 53 articles, and the longest 183, 
 while the average is 90 articles of agreement, each. Eliminating 
 that which is merely local, selecting matter of general interest, 
 and with the view of illustrating certain specially instructive feat- 
 ures, we have the system brought out as follows: 
 
 Right of Property in the Waters.^ 
 
 After the reconquest of the country from the Moors in the early 
 part of the ftirteenth century, apparently in order to quiet the peo- 
 ple, by returning to them privileges of which they may have been 
 deprived, the Spanish,kiag granted, to the irrigating landholders 
 under them, the seven smaller canals around Valencm, together 
 with their waters. The grant says: "We give and concede forever 
 to all of you united, and to each one of the inhabitants, * * * 
 all and every of the canals, unincumbered and free, great and 
 small, with their waters, headgates, and conduits of these same 
 waters, as well as the spring waters, with the exception of the 
 Koyal canal" [to be hereafter mentioned] * * * "from 
 which canals or springs you will possess yourselves forever of the 
 waters, * * * whether by night or by day, in such a way 
 that you can always irrigate and take the water without servitude, 
 without contribution, and without tribute; in fine, you will enjoy 
 the said waters according to what had been anciently established 
 and practiced from the time of the Saracens." 
 
 At a later date the other canal was similarly granted to the 
 land-holding irrigators below it, and thus the water-rights became 
 
 ' See, Ayniard, Chap. II, Sec. 1; also, Llaurado, p. 610; and, Moncrietf, pp. 128 
 and 171. 
 
LOCAL REGULATLONS—VALENCIA. 387 
 
 established of record, although these grants are held to be but rec- 
 ognitions of former privileges. 
 
 So, on the irrigated plain of Valencia the water is annexed to 
 the land. No one can sell land without at the same time selling 
 water-rights; nor can any one sell water, separately, and cut off 
 the supply to the land, which is to enjoy it forever. '" This prohi- 
 bition applies not only to a final sale of the water, but even to the 
 sale of a simple irrigation turn." This principle was embodied 
 in the acts of concession, and the practice could not lawfully be 
 other than it is. " The waters were conceded to each of the pro- 
 prietors, with the settled condition that each should apply his 
 share of water to his land. If a proprietor does not make use of 
 his shares, the water not utilized remains with the common store 
 for the common-Tise of other proprietors. This idea is so rooted 
 in the spirit of the populace that the administrators of the water 
 assured us they had never been troubled with such a question." — 
 [Aymard, pp. 36-37. 
 
 The regulations of some of the canals provide heavy penalties 
 for an attempted sale, temporary or permanent, of a water turn or 
 right, and irrigators are not allowed even "to lend their water to 
 others without the permission of every other irrigator from the 
 canal, and the formal consent of those who might be injured by 
 such action." 
 
 Associations — Amendments — Assemblies} 
 
 The administration of each of the seven canals which were the 
 subject of the first grant to the irrigators, is carried out in a rather 
 democratic way, but -there is a central .organization which decides 
 questions and administers affairs common to all, as will now be 
 explained. With this system the eighth canal is not connected, 
 it being administered on a different principle, as will be seen in 
 the last subdivision of this section. 
 
 From the earliest times the irrigators under each of these seven 
 canals have formed a separate community, and with customs and 
 rules peculiarly their own. Within the century each of these com- 
 munities has reorganized, with well drawn ordinances based on 
 the old rules ; but now these codes are antiquated, as compared 
 to many formed since the promulgation of the new general water 
 law, and rank as old irrigation regulations. To amend any such 
 
 ■ ^ See, Aymard, Chap. II, Sees. 2 and 3; also, Llaurado, pp. 611-615; and, Mon- 
 criefif, Chap. XI. 
 
388 SPANISH IRRIGA TION LEGISLA TTON. 
 
 code of regulations, all the users of water in the community- 
 gather in a general assembly and elect a commission charged 
 with the study of amendments, or perhaps with full powers to 
 make amendments and put them to the test. Generally, the com- 
 mission is charged simply to report amendments, and, this being 
 done, these are put to a vote of the irrigators. Such amendments, 
 adopted by the community, are submitted to the prefect of the 
 province for ajjproval, and, if important, must be transmitted to 
 the central government for final ratification. 
 
 The irrigators in each community meet together in general as- 
 sembly usually every two years, and at such other times as they 
 may be called by their syndicate. They discuss openly all ques- 
 tions relating to the affairs of their canals, ditches, headworks, 
 irrigation, etc., elect their syndicate members, and vote the taxes 
 or assessments necessary for expenses of maintenance, adminis- 
 tration, etc. The outgoing board of control usually presents sev- 
 eral lists of candidates for membership of the new board, and 
 these are voted on by ballot. Each land owner who is an irrigator 
 from the canal is entitled to membership in the general assembly, 
 and each casts one vote no matter how large or small his holdings, 
 except in the cases of several of the communities where a mini- 
 mum of land interest entitling a proprietor to vote, is fixed. The 
 confusion which resulted from introduction and discussion of 
 trivial matters in these assemblies, brought about a rule which 
 prevails in most of the communities, to the effect that all subjects 
 have to receive the approval of the syndicate before being pro- 
 posed in general assembly. These assemblies are in some com- 
 munities presided over by the oldest member of the syndicate, 
 in others by the mayor of the city, and in others by the governor 
 of the province, just as the regulations provide in each instance. 
 
 Powers and Duties of Officers} 
 
 The chief functionary of a water community in Valencia is the 
 syndic, who is the active superintendent of the works and waters, 
 and is elected by the members in general assembly, for terms 
 varying from two to four years in the different communities. " We 
 do not find in French communities a functionary comparable to 
 this Valencian syndic. On the one hand by the inferiority of his 
 
 ' See, Aymard, Chap. II, Sec. 4; also, Haurado, pp. 612-613; and, Moncriefl', 
 Chap. XI. ' 
 
LOCAL EEGULATLOA^S—VALENCIA. 389 
 
 social position, by the manual labor which he is obliged to per- 
 form, by the fines which are imposed upon him if he omits any of 
 his duties, one would be inclined to think him a very subordinate 
 employe. But he is at the same time the cMef administrator of 
 the canals of his community, the supreme regulator of the divis- 
 ion of their waters in time of scarcity, and, above all, he is con- 
 stituted, together with the syndics of the other communities of the 
 huerta, judge of all contests relative to irrigation practice, from 
 whom there is no appeal." — [Aymard, p. 40. 
 
 The necessary qualifications to become a syndic are: to be a 
 laborer of unstained honor, to possess in one's own right a certain 
 extent of land mthin the irrigated area of the community, not to 
 be the owner of a mill or other machinery requiring water-power, 
 and to be able to read and write. All these points are specified in 
 the several codes of regulations, but the educational qualification 
 has found place there only within the last half century. " That 
 which above all is indispensable, is to be a laborer, to guide the 
 plow with his own hands. A landlord, merely, could not be 
 elected. This qualification is so indispensable that, in the ofl&cial 
 language as well as in the ordinary speech, the word laborer has 
 become allied, as it were, to that of syndic, and in the greater num- 
 ber of the regulations we find the name written syndic-laborer." — 
 [Aymard, pp. 40-41. 
 
 The members of the syndicate or board of control of each com- 
 munit}', varying from five to twenty in diiferent communities, are 
 elected for terms similar to those of the syndic-laborer, and their 
 functions, are much the same as those of an ordinary board of 
 directors of a company in our country, except that the superintend- 
 ent is not wholly under their control, but is in eflect one of them. 
 In some of the communities the subordinate employes are selected 
 by the general assembly, in some by the syndic-laborer or super- 
 intendent alone, but generally b_v the board and the superintend- 
 ent together. 
 
 These employes are munerous; some ha\-ing permanent em- 
 ployment, and some only temporary. The acequiero, under the 
 direction of the syndic, has charge of the cleansing and general 
 maintenance of the canals and branches, and is the clerk of the 
 works. The reedores are inspectors, whose duty it is to inspect 
 contract work of construction and maintenance, and advise with 
 the syndic in apportioning water and shifting turns of irrigation 
 in times of scarcity, in order that crops and fields most needing it 
 
390 SPANISH IRRIGA TION LE GISLA TION. 
 
 may be helped through the critical periods. The atendadores 
 turn on the waters to the private ditches for irrigation.. These 
 are the actual judges of the details of apportioning water to each 
 irrigator, and no one may irrigate without the sanction of the 
 atendadore of the ditch. The number of these attendants is iixed 
 by the syndic for each branch canal, but their appointment is 
 ordinarily left to the irrigators on that branch, forming a special 
 assembly for that purpose. There is also a guard of the main 
 canal and headworks, whose duty it is to constantly watch these, 
 keep them clear of lodgment of drift, report threatened or actual 
 disaster, and see that the system is getting its share of water from 
 the river. There is also a collector to gather in the taxes or 
 assessments, and a notary or advocate to draw the papers, agree- 
 ments, etc., advise the officers, and attend to the legal business of 
 the association. 
 
 Assessments — Maintenance — Distribution} 
 
 The assessments or taxes are divided into ordinary, those for 
 regular maintenance, administration, and repairs; and extraor- 
 dinary, those for special repairs and construction. In some cases 
 the ordinary assessments are subdivided so as to keep that which 
 is necessarily variable, as for dredging and cleansing, for instance, 
 separate from that which is for salaries and other invariable ex- 
 pense. In some cases an extreme lunit of taxation is fixed in the 
 regulations, in others it is not. With one exception the levy is at 
 so much for ordinary and so much for extraordinary purposes per 
 unit of land area irrigated, no matter what the crop, or the de- 
 mand for water. In the instance of the exception the levy is 
 partly in proportion to the volume of water used. The collection 
 of assessments is made very promptly, and energetic measures are 
 adopted against those who may be in default. Non-payment sub- 
 jects the delinquent to summary and absolute deprivation of 
 water. If he then takes water without settlement of dues he is 
 subjected to a fine as great as $24. If it can be proven that the 
 taking is done with the consent or connivance of an atendadore or 
 other guard, the officer himself must pay the fine. 
 
 The main works and primary branch canals are maintained 
 and cleaned at the expense of the general fund, under the direc- 
 
 1 See, Aymord, Chap. II, Sees. 5, 6, and 7; also, Llaurado, pp. 613 and 619; 
 and, Moncrieff. 
 
LOCAL REGULATLONS— VALENCIA. 391 
 
 tion of the proper officers, either by day labor or by contract. The 
 secondary branches and field ditches are maintained and cleaned 
 by the owners of adjoining property, each one in front of or through 
 his land. If any fail to do the necessary work, it is done by the 
 proper association employe at the expense of the delinquent, and 
 he may also be fined for neglect. The syndicate may be appealed 
 to in such cases, and experts appointed to view the locality and 
 report thereon. 
 
 There is no water-regulating machinery or measuring appara- 
 tus, but the employes of the association by long practice become 
 skilled in judging of necessities of the various crops on the differ- 
 ent soils, and of the volumes of flow required, and so these matters 
 are in reality carried on in a systematic manner, though by rude 
 methods and means. This system, of course, opens the way for 
 great injustice and favoritism, but it appears from the accounts, 
 which are extended and in detail, that the working is satisfac- 
 tory to Valencias. This is no place to enter into the discussion of 
 crop cultivations, and management of details of irrigation prac- 
 tice. Thus much has been said in order to show the system of 
 organization and internal management of irrigation associations, 
 and the tenor of the local customs which have grown into laws 
 and been generally copied, as we shall hereinafter see. 
 
 Responsibility of Employes} 
 
 The principle of pecuniary responsibility of employes and ad- 
 ministrators is applied upon a wide scale in the affairs of all the 
 Valencian irrigation associations. For example, the guard of the 
 headworks and main canal is fined for not keeping the due amount 
 of water fiowing into the system. This fine amounts to several 
 dollars for the first offense, is doubled for the second, and the 
 third delinquency of the kind results in his dismissal. In one 
 regulation the attorney is allowed certain fees for keeping the reg- 
 ister of ownerships posted ; and he is paid a small fee for each 
 entry made, but for an omission he is fined twenty times as much. 
 The syndic himself is not exempt from such penalties. The older 
 regulations, especially, are stringent in this regard. For instance, 
 in one case he is to be fined an amount equivalent to five or six 
 dollars for neglect to report to the syndicate board the necessity 
 for any certain repairs. Should he allow the construction of works 
 
 ' See, Aymard, Chapter II, Sees. 8 and 9; also, Llaurado, pp. 616 and 619; 
 and, MoncrieflF. 
 
392 SPANISH IRRIGA TION LEGISLA TION. 
 
 or diversion of waters, for which there is no right, he is heavily 
 fined, and for the third offense is disgraced and dismissed. Reg- 
 ulations of later dates, however, show a tendency to exempt the 
 syndic from pecuniary responsibility, and to depend more upon 
 honor of the individual and the dignity of the office, to insure faith- 
 ful performance of duty. Even the members of the syndicates or 
 boards of control are subject to fines in some associations. Any 
 one who is a member of the association may lodge a complaint 
 before the tribunal of waters, hereafter to be spoken of, and half 
 the fine goes to the informer. 
 
 The Moncada Canal Organization} 
 
 The Moncada canal, with the seven whose organization and 
 administration have now been spoken of, completes the network 
 of conduits which effect the irrigations around the city of Valen- 
 cia, with the waters of the Turia. Being the subject of a separate 
 and later concession, the organization of the irrigators controlling 
 this work happens to be on a basis different from the others. At 
 the time of the Moncada canal concession to the people there were 
 twelve villages of irrigators served by it, and its control went into 
 the hands of the chief executive magistrates or regidores of these 
 villages, acting in the capacity of a syndicate; and these yet con- 
 trol and govern it, notwithstanding the fact that there are now in 
 all twenty-three villages whose lands are irrigated by its waters 
 and that, thus, eleven of them are not represented in the control- 
 ling board. The twelve regidores take the name of syndics while 
 acting as such, but much of the special fitness for duty which is 
 made an essential in the selection of members of the boards of 
 irrigation, by the ordinances of the other canals, it is considered, 
 is lost in the persons of these regidores of the Moncada who are 
 elected as political officers, and regard their duties as syndics as 
 secondary to their services as regidores. Neither are they elected 
 solely by the land-owning irrigators, but by all qualified electoi^ 
 in the towns which they represent; while many irrigators and 
 land owners served with water under their direction have no vote 
 in their selection. Aymard considers that the working of this sys- 
 tem is far less satisfactory than that of the regular associations 
 which govern the other canals, because of the above reasons and 
 some which follow. 
 
 ' See, Aymard, Chap. Ill; also, Llaurado, p. 618. 
 
LOCAL REGULATIONS-VALENCIA. 393' 
 
 The regidore syndics appoint the acequiero and other officers of 
 the administration. There is no tribunal of waters; the acequiero 
 real is the judge; his decisions may be appealed from to the 
 twelve syndics themselves, and from these an appeal may be 
 taken to the royal court of justice at Valencia. This system has 
 brought about repeated clashings between the syndical water court 
 and the regular courts of justice; and experience has shown the 
 wisdom of retaining the two systems entirely separate from each 
 other, as in the case of the seven associated communities and their 
 independent tribunal of waters. 
 
 SECTION II. 
 
 District of Valencia — General Administration of Waters. 
 
 The Joint Board of Syndics} 
 
 When there is plenty of water in the river each canal takes all 
 its irrigators require, without regulation, but at times of scarcity 
 the syndics of all the associations meet and jointly decide as to the 
 ■division of the water under the' terms of the ancient concessions, as 
 long accepted and sanctioned by use. This apportionment is not 
 equal or in proportion to capacity or to areas of cultivation, and in 
 some cases the stream of supply to a canal is intermittent, while 
 ■others get a steady flow; but it is all determined and registered in 
 the archives of the city, and is simply a carrying out of customs 
 which originated under the Moors. There are other diversions 
 from the river by canals situated in the foothills and mountains 
 above the coast plain, whose rights are subordinate to those of the 
 Valencian huerta. When it is necessary, the syndics of the lower 
 associations meet and go together, under authority of the alcalde; 
 with the concurrence of the administration of the other and larger 
 lower canal, to claim the waters being utilized in the mountains. 
 If difficulties are likely to arise the provisional government sends 
 troops to preserve peace. Should, as sometimes has been the 
 •case, the drought be so extreme as to inconveniently diminish the 
 flow, even with all that can be acquired from above, the syndics 
 jointly in council decide as to a schedule for distributing from the 
 river, alternately to the canals on one side for several days, and 
 
 ^ See, Aymard, Chap. II, Sec. 10; also, Llaurado, p. 616; and, Moncrieff. 
 
394 SPANISH IRRIGA TION LEGISLA TION. 
 
 then to the canals on the other side for a due period. Having 
 thus acted with the other syndics to apportion the waters from the 
 river, each syndic returns to his own district and attends to the 
 distribution of waters to the irrigators of his association. " Thus, 
 in critical times of drought, there is no other rule than the abso- 
 lute obligation of each one to obey the decisions of the syndic. 
 Intelligence and practical sense do everything." — [Aymard, p. 51. 
 
 The Syndicate-General for the Turia} 
 
 Aside from the interests merged into the eight organizations on 
 the lower Turia, which have now been written of, the others using 
 water taken from the river by twenty-five to thirty small canals 
 located at intervals along its course through the mountain valleys 
 above, have claimed the benefits of general organization. Some of 
 these are but a short distance from the plain, and though their 
 rights are subordinate to those of the lower canals, they still have 
 some rights even as against these, and more particularly have 
 they rights confiicting among themselves. For this reason, and to 
 bring the entire river under one representative controlling admin- 
 istration, upon the principle of the existing ancient board of syn- 
 dics or tribunal of waters, the general government of Spain in 1853 
 issued a decree ordering the formation of a sjmdicate-general to be 
 composed of seven members, as follows: (1) a member nominated 
 by the authorities of the city of Valencia and taken from amongst 
 her municipal counselors; (2) a member nominated by the tri- 
 bunal of waters from amongst its number; (3) a member to rep- 
 resent the lower communities on the left bank of the river; (4) a 
 member to represent the lower communities on the right bank of 
 the river; (5) a member to represent the communities of the Mon- 
 cada canal; (6) a member to represent one group of villages in 
 the mountain districts; (7) a member to represent another certain 
 group of mountain villages. 
 
 It will be seen that the lower irrigating communities control 
 at least four of these seven members: in other words, that the 
 electors of the old tribunal of waters had control of the new syn- 
 dicate-general. Indeed, the royal decree is most careful to avoid 
 appearing to go counter to the general Valencian sentiment in 
 favor of the ancient institution. It says; " It is the express desire 
 of her majesty, the Queen, to have it thoroughly understood that 
 
 ' See, Aymard, Chapter IV; also, Llaurado, p. 620; and, Moncrieff, p. 180. 
 
LOCAL REGULATIONS—VALENCIA. 395 
 
 the primitive water tribunal of ^"alencia, of venerable antiquity, 
 remains intact as is mentioned in the regulation, and finally that 
 nothing be inaugurated or decided by the syndicate-general touch- 
 ing the question of the water famine regime, which will form the 
 subject of special instructions to be sent." 
 
 The powers and duties of the syndicate-general were those of a 
 general board of control in charge of the stream and its waters, 
 for all purposes throughout its course, from the upper point of 
 diversion to the sea. But as these were thought to clash with 
 ancient customs and prerogatives of the seven syndics in the tri- 
 bunal of waters, and as the electors of these syndics, virtually 
 controlling the new syndicate-general, preferred the ancient mode 
 of administration to the new one, the syndicate-general was for 
 years a failure in its operation, and, to within a few years past, 
 has been as a dead letter; but, as will hereinafter appear, this 
 system has been revived under newer laws. 
 
 Tribunal of Wate 
 
 rs} 
 
 The special irrigation " tribunal of waters " of Valencia, as well 
 as those of other ancient irrigation communities in Spain, is the 
 most noteworthy feature of the system of administration which 
 has descended from the ]\Ioors. A thoroughly popular institution, 
 it has had such a firm hold upon the people that the framers of 
 the modern laws have recognized the value of the principle and 
 provided for its general adoption throughout Spain. In view of 
 its importance, I describe it as nearly as possible in the language 
 of Aymard : 
 
 "This institution is a remarkable monument to the administra- 
 tive and practical abilities of the Moors, and has been preserved 
 almost without change from their time to the present day, in its 
 spirit, its rules of procedure, and its outward forms. It is a note- 
 worthy landmark of time. The people hold it in the same vene- 
 ration as though it were a sacred monument in stone or marble, 
 and whenever a proposition has been made to change or touch it, 
 public opinion has immediately been made apparent and pre- 
 vented innovation." 
 
 Each of the codes of regulations of the several associations com- 
 pels the syndic-laborer elected under it to attend every Thursday 
 at eleven o'clock at the cathedral square of Valencia to join the 
 
 ^ See, Aymard, Chap. II, Sec. 10; also, Llaurado. pp. 616-618; and, MoncrieiF, 
 pp. 180-184. 
 
396 SPANISH IRRIGA TION LEG I SLA TION. 
 
 other syndics, and with them act as a court to decide on all ques- 
 tions relative to the irrigation practice, brought before them, to 
 impose fines on delinquents, and to transact, also, such adminis- 
 trative business as must be done in common. This meeting, called 
 the " tribunal of waters," is composed of eight syndics — one each 
 for the seven canals of the association, and one for an important 
 branch canal. The functions of this tribunal are at once admin- 
 istrative and judicial. Its administrative duties are chiefly those 
 of apportioning the waters of the river to the several canals in 
 times of drought, and its judicial functions are as above indicated. 
 
 " The administrative duty of the united syndics is based on an 
 idea of great wisdom. The Moors well understood that at times 
 of drought it is impracticable to allow each water community to 
 act independently; that under certain circumstances it is abso- 
 lutely necessary for them to unite together to form a central au- 
 thority, and they created this governing body by the union of the 
 principal officers of each community. And this board of united 
 syndics was wisely made a tribunal competent to pronounce judg- 
 ment in disputes concerning irrigation, as well as to settle contests 
 between the districts." 
 
 In the performance of its judicial functions the tribunal, as 
 above written, consists of eight members; but for administrative 
 duty the member for the branch canal does not act, and hence 
 there are but seven — one for each canal and headwork joined in 
 the general association, the larger canal association not being a 
 member, and having rights subordinate to those of the associated 
 canals, is not represented. 
 
 "Every Thursday at eleven o'clock a crowd collects in the 
 cathedral square, in front of the side door of the cathedral upon 
 the porch of which the tribunal is to assemble. This place of 
 holding the court was the same in the time of the Moors; tradi- 
 tion saying that it was at the principal entrance to the mosque, 
 and it is known that at this day in Moslem countries justice is 
 administered at these places. Here, at Valencia, there is placed 
 upon the porch a large divan of semicircular form. The seven or 
 eight syndic-laborers, in decent garments, but not differing from 
 their holiday attire, come from amongst the crowd and take their 
 places on the bench. Around them are collected the water-guards 
 ready to furnish any desired information, the crier of the court to 
 announce cases, and the notary to take down sentences when those 
 interested demand a record. The crowd stands at the foot of the 
 porch a little distance away. The whole scene is grand, simple, 
 patriarchial, and vividly impressive, justifying the sort of reUgious 
 belief of the Valencian people in the infallability of the tribunal. 
 
LOCAL REGULATIONS— VALENCIA. 397 
 
 "The cases tried are of two kinds; sometimes it is on informa- 
 tion of an infringement or delinquency by an employe, sometimes 
 a complaint made by one irrigator against another. In every 
 case the syndic of the water community to which the case belongs 
 acts as the judge-advocate; attends to the case, interrogates the 
 witnesses, etc., but, in order to preserve his independence in the 
 matter, custom forbids his voting on the decision. When the case 
 is heard the other syndics collect in a group to one side, deliberate 
 in low tones, and immediately pronounce sentence. * * * 
 The sentence is without appeal; and is not even recorded, unless 
 the parties at interest demand and pay for the record. Neither 
 is there any expense, if the fines, damages, or repairs are imme- 
 diately paid; but if resistance is made the tribunal is armed 
 with the most extensive powers to make seizures up to the full 
 value of the amount due and enough in excess to cover expenses. 
 The penalties imposed are always those named in the regulations 
 of the association in which the ofifender is a member." — [Aymard, 
 pp. 54-56. 
 
 The tribunal of waters has jurisdiction only of questions of fact, 
 of regulations, and of police concerning irrigation, and does not 
 deal with matters of title to waters and lands or other properties. 
 Within these limits its power is absolute and coercive for those 
 who have accepted its jurisdiction by appearing before it. But 
 each irrigator has the right to withhold his case from the water 
 court; in which event, after having been twice summoned by the 
 water-guard to appear on two successive Thursdays, the case is 
 reported to the civil authorities of the province, and the delinquent 
 is brought into the ordinary courts. But proceedings in these 
 courts are, comparatively, so very expensive, and the confidence 
 in the water tribunal is so great, that but few cases of this kind 
 have ever occurred. 
 
 Efficiency of the System} 
 
 Mr. Scott-MoncriefF, during his inspection of Spanish irrigations 
 in 1867, seems to have been particularly impressed with the admin- 
 istrative system of the Valencian canals, for he has made frequent 
 reference to its good working, and in one place has written as fol- 
 lows: "The reader will find perhaps little to be learned from the 
 canals of Valencia, looking at them merely as an engineer, but the 
 system of administration is one well worthy of study. Here, more 
 than either in France or Italy, government by a representative 
 assembly is fully carried out, and has been for more than six hun- 
 dred years, with the best results." — [Moncrieff, p. 136. 
 
 ' See, MoncriefiF, Chapters IX and XI. 
 
398 SPANISH I R RIG A TION LEG IS LA TION. 
 
 In another place, speaking of the tribunal de las aguas, he says: 
 
 " Even without taking much interest in irrigation one could not 
 but be impressed by this scene, which has, I believe, more than 
 once formed the subject for the artist's pencil. The irregular little 
 plaza, inclosed by the old cathedral on one side, and the tall pict- 
 uresque houses casting broad shadows from the others; the eight 
 judges, undistinguished by robes or insignia from the groups of 
 simple peasants with their gay-colored plaids and silk handker- 
 chiefs round their heads, take their seats under no covering but 
 the bright Spanish sky. Although everywhere in Spain, as in 
 France, one sees soldiers or other liveried officials obtruding them- 
 selves, none are on duty at this old parliament but the canal 
 guards; and the respectful crowd wait a few paces off. * * * 
 If an offender is to be fined he listens in silence and bows to the 
 court; if he remonstrate, his fine is doubled." — [Moncrieff, p. 181. 
 
 " It is without doubt," says Baron Jaubert de Passa, " a marvel- 
 ous sight to behold a man of wealth and rank, who, as a lord, 
 enjoys unlimited prerogatives, on foot, hat in hand, receiving in 
 silence the rebuke which the syndics bestow on him, and promis- 
 ing obedience to the sentence pronounced — considering that the 
 judges are only simple laborers." ****** 
 
 " The tribunal of waters is a most popular institution in Valen- 
 cia — so much so that sometimes people try to stretch its powers 
 beyond their limit of cases relating to irrigation. * * * As 
 may be supposed, this democratic council has been attacked again 
 and again, and tried to be abolished. One may easily fancy the 
 arguments that would be brought forward, even in countries more 
 independent and less overridden by officialism than Spain; how 
 contempt would be expressed for the judicial qualifications of poor 
 peasants; how righteously indignant some would profess them- 
 selves to be, at this rough and ready method of settling disputes; 
 how others would assert that it was against all the principles of 
 law and order to allow of a court like this, independent of the reg- 
 ular judicial administration, and absurd to consider irrigation as 
 a thing requiring special rules of its own, different from the ordi- 
 nary civil law of the country; and how the direct proof of the 
 court's efficiency, its popularity, and its expedition in clearing off' 
 cases and leaving no arrears, would be explained away or under- 
 valued. Other pleas than these have been set up in Spain, and 
 no stone has been left unturned to get rid of a system so distress- 
 ingly simple to the mind of the doctrinaire. Its last and worst 
 enemies were among the feeble cortez of Cadiz during the French 
 war, and that they failed in their object is said to have been due 
 to the eloquent speech of a distinguished Valencian. * * * 
 I think, on reflection, it will be considered * * * the wisest 
 course is to interfere as little as possible with what is so simple, so 
 dear to the people, and so admirable on many important points." 
 — [Moncrieff', pp. 182-184. 
 
LOCAL REGULATIONS. 399 
 
 SECTION III. 
 
 The Districts of Jucar and Mueviedro. 
 
 JucAR — The Irrigated District} 
 
 In the case of the irrigations around the city of Valencia we had 
 an instance of a river tapped by four small canals on each bank, 
 and each of these works under a separate administration. The 
 volumes of water distributed ranged from about 35 to 120 cubic 
 feet per second to the canal. In the case of the Jucar irrigations 
 there is but one canal, whose delivery ranges from 750 to 850 cubic 
 feet per second, and it is all under one management, thus afford- 
 ing an example with materially different governing circumstances. 
 
 The Jucar river, like the Turia, rises in the Sierra Molino moun- 
 tains, and flowing thence, across the sloping plain on the east coast 
 of Spain, waters the district immediately south of the huerta of 
 Valencia, making with it and the district of Murviedro, imme- 
 diately on the north, a continuously irrigated garden land near 
 forty miles in length. The Royal Jucar canal takes water through 
 the north bank of the river several miles above the plain, and 
 skirting the edge of the mountains northerly toward Valencia, 
 gives out its supply through its right bank, only, to main distrib- 
 utaries, which carry it to the fields. The total length of the main 
 canal is about twenty-six miles, and the distributaries are very 
 numerous, necessitating much administrative work in regulating 
 them. The very massive dam, headworks, regulating gates, and 
 main outlet structures are all of cut stone masonr}'^, and the gates 
 are generally moved by screws. The area of irrigation is about 
 50,000 acres, the cultivation is principally that of rice, the waters 
 are often used over the third time, and the system is so perfect 
 that but little waste is suffered, but the supply of water is abund- 
 ant and the use extravagant. 
 
 There is some evidence and belief to the effect that this canal 
 and its irrigations originated with the Moors, but the case is not 
 nearly so well made out as in the instance of the Valencian works, 
 and the popular belief is that the work was inaugurated by the 
 Spanish conqueror in the thirteenth century. However this may 
 be, the canal was so far remodeled, enlarged, and lengthened to- 
 
 ' See, Aymard, Chap. V; also, Llaurado, pp. 590-596; and, Moncrieff, Chap. X. 
 
400 SPANISH IRRIGA TION LEGISLA TION. 
 
 wards the end of the eighteenth century, and the irrigations so 
 much extended subsequent to that time, that it is, comparatively- 
 speaking, a modern work. 
 
 Tlxe Modern Administration} 
 
 Before the enlargement and extension the canal was altogether 
 owned by an association of irrigating communities or villages, who 
 were represented in the general association by their municipal 
 councils. The wealthy duke of Hijar, owning much land lying 
 north of this irrigated district and between it and that of Valen- 
 cia, obtained from government concession of a water privilege from 
 the Jucar river, and then negotiated with the association owning 
 the canal to make some arrangement under which he could use 
 the existing work wherein to conduct his waters. It was agreed 
 between the duke and the old association, that he was to enlarge, 
 improve, and extend the canal at his own expense and thereafter 
 pay his proportionate part of expense of maintenance and opera- 
 tion as far as the old work had extended, and have a certain 
 representation in the governing board, as will hereafter be seen. 
 And it was further agreed between the duke and certain com- 
 munities who had no water, but were to be furnished it by him, 
 that he was to deliver waters according to certain prearranged 
 plans, keep the canal and main distributaries in repair, admin- 
 ister the affairs of the canal beyond the limits of the old work, 
 deal with the association of the old work, and receive in return 
 from the new irrigators a tithe of one twentieth of their gross 
 crops each year, to be collected by the town councils and paid to 
 him without costs. 
 
 There is in this irrigation district no popular assembly, as in the 
 water communities of the Valencian plain. The town councils of 
 all the villages served with water, together with a number of land 
 owners equal to that of the town councilors in each instance, name 
 one or two deputies each, according to the degree of importance of 
 the town and neighborhood. Seventeen of them name one each, 
 and five of them name two each. The duke of Hijar names four. 
 The steward of the royal irrigated domain in the district names 
 one; and, finally, the villages originally controlling the works, 
 collectively name one extra deputy, making in all thirty-three 
 representatives, who, under the presidency of the governor of the 
 
 ' See, Aymard, Chaps. V and VI; also, Llaurado, pp. 595-598; and, Moncrieffi. 
 
LOCAL REGULATIONS— JU CAR. 401 
 
 province, constitute the junfa or general council invested with 
 supreme powers to administer the works and waters. 
 
 This council settles the budget, votes the taxes or assessments, 
 apportions them amongst the several communities — the duke be- 
 ing considered as representing the entire area of new irrigation, 
 for this purpose, as per the terms of his agreement with the new 
 irrigators — authorizes the execution of new works, and votes the 
 necessary funds. It nominates all superior employes except the 
 chief acequiero, who is named by the governor from a list presented 
 by the council. To more actively administer the business affairs 
 of the district, there is an executive committee of five members of 
 the council, each great interest having due representation thereon. 
 
 The chief acequiero is the general superintendent of the works, 
 distribution of waters, and irrigation. He is the judge of facts and 
 necessities, and acts with promptness and dispatch, there being an 
 immediate appeal from his decisions and actions to the executive 
 committee and thence to the governing coancil. He has a large 
 number of siibordinate assistants whom he appoints and removes at 
 will and for whose actions he is in great measure held personally 
 responsible. He is also required to prepare the estimates for the 
 year's expenses, and he has the power to impose fines for infringe- 
 naents of the rules, up to a certain limit. Thus, the acequiero major 
 is a superintendent clothed with much power and responsibility, so 
 that his quahfications are placed quite high, his salary is set at a 
 good figure, and he is required to furnish a bond. 
 
 Assesstnents — Works — Contracts} 
 
 The assessments or taxes voted by the general council and ap- 
 portioned to the several towns, are by the town councils levied on 
 the different irrigators, collected, and paid in to the general coun- 
 cil. The town authorities are held responsible for their several 
 quotas, and the duke is held responsible for his share, so that the 
 general Council is not troubled with the details of collection. The 
 water-right being annexed to the lands, each owner of land is 
 obhged to pay his assessment whether he uses water or not and 
 no matter how much or how little he gets. 
 
 Important new works are always the subject of regular plans 
 and specifications, drawn by an engineer employed from without 
 
 ' See, Aymard, Chapter VI, Sees. 3 and 4; also, Llaurado, pp. 598-600; and, 
 Moncrieff. 
 
 26' 
 
402 SPANISH IRRIGA TION LEGISLA TION. 
 
 the irrigating district, and which are approved, before work is 
 ordered, by the general council and the governor. Contracts to a 
 limited amount are let by the executive committee ; all large con- 
 tracts, by the general council. Works of maintenance and repairs 
 on the main works are done at the cost of the general fund. These 
 works on the primary ditches are paid for by the neighborhoods 
 they serve with water; and on the secondary ditches the owners of 
 adjacent property are obliged to execute them at their own cost. 
 
 Distribution of Waters} 
 
 To guide in dividing the waters a register is made of the irri- 
 gated lands served by each main distributary, and of the crops in 
 which they are cultivated. With this the acequiero major makes 
 the apportionment, and establishes a schedule for distribution to 
 the main branches. As soon as the water enters these branch 
 canals it belongs to the councils of the communities to be served 
 by it, and is managed at municipal expense by their acequieros. 
 When the waters are thence delivered to the fields they are taken 
 charge of by a public irrigator for each sub-district, who, contrary 
 to the practice at Valencia, has charge of the irrigations to the 
 exclusion of the owners of the lands. These public irrigators are 
 paid by the proprietors whose lands they serve, and about two 
 hundred of them are constantly employed in the district. 
 
 All these guards, canal men, and public irrigators, whatsoever 
 the fund or community paying them, are members of the one force 
 under the control of the acequiero major, his orders being trans- 
 mitted through the intermediate officers to the subordinate em- 
 ployes; and they each report to a superior, so that daily accounts 
 come up to the chief, by which he can regulate the distribution 
 for the day following. The theory of this system is good, but the 
 practice in this instance is rude. Nevertheless, the outcome ap- 
 pears satisfactory, for the water supply is almost always abundant. 
 
 A system of fines for offenses and delinquencies, both on the 
 part of employes and irrigators, is in vogue, and the penalties are 
 frequently very heavy. But there is no tribunal of waters as at 
 Valencia, and this part of the system is not popular amongst the 
 irrigators. 
 
 ^ See, Aymard, Chapter VI, Sees. 5 and 6; also, Llaurado, pp. 599-601; and, 
 Moncneff. 
 
LOCAL REGULATIONS. 403 
 
 MuRViEDRO — r/ie District and Water-Right} 
 
 Murviedro is a small city of 7,000 inhabitants on the banks of 
 the Palancia river, on the northern border of the province of Val- 
 encia, whose lands, with those of three neighboring villages, consti- 
 tute an irrigation district of which the very ancient organization 
 has been abandoned for one of quite modern forming. The present 
 regulations bear date of 1853 and were revised in 1861. Aymard 
 says: "The remodeling of the regulations has been made with 
 complete freedom from old local forms, which was not the case 
 in Turia and Jucar, where ancient usages and customs greatly 
 influenced the new regulations. A study of the regulations of 
 Murviedro shows clearly the policy of the Spanish administration 
 respecting irrigation, and the high appreciation had of its value." 
 -[p. 107. 
 
 In Murviedro the water-right is attached to the land irrigated, 
 and cannot be alienated therefrom; and the affairs of the district 
 are in the hands of the owners of the land and water-right, each 
 of whom, no matter how great or small his interest as an irrigat- 
 ing landholder, is entitled to cast a vote for his member of the 
 governing board. 
 
 The Administrative Organization}' 
 
 The affairs of the district are in charge of a general council of 
 eight members, of which there is an administrative committee of 
 five. The district is divided into five sections, of which the city 
 of Murviedro and its lands constitute one, having a representation 
 of three special delegates in the council. Each of the other four 
 sections has one representative, and the alcalde of Murviedro is, 
 ex-officio, the presiding officer and eighth member. These coun- 
 cilors, excepting the alcalde, axe elected in each section by general 
 vote of all the irrigators in that section. To be eligible as a mem- 
 ber of the council, one must be of age and the owner of at least 
 four hanegadas (6.35 acres) of irrigable land within the district. 
 The members of council serve without pay for terms of two years, 
 and are eligible for reelection. 
 
 Regular meetings of the council are held on the first days of 
 January, May, and September, respectively, and extraordinary 
 
 ' See, Aymard, pp. 107-110. 
 ^ See, Aymard, pp. 109-112. 
 
404 SPANISH IRRIGA TION LEGISLA TION. 
 
 meetings whenever the governor of the province considers it nec- 
 essary. The council discusses the proposed annual expense esti- 
 mates, determines the amount of revenue to be raised, divides the 
 gross sum between the several sections of the district in proportion 
 to the number of days of irrigation water assigned to each, and 
 notifies the alcaldes in the sub-districts of the amount of revenue 
 required from the lands within the jurisdiction of their town, in 
 each instance. The municipal council of each town apportions 
 this water tax to the several property owners, in the ratio of the 
 area of irrigable land owned by each, makes the levy, collects 
 the taxes, and pays them over to the provincial authorities with 
 the other revenues. Extraordinary taxes are voted and levied 
 in the same manner, after having been recommended by the ad- 
 ministrative committee and voted by a three fourths vote in the 
 general council. The general council audits the accounts, and, 
 having been approved, they are transmitted to the governor of the 
 province, who publishes notice of the approval, and the demands 
 then become payable. 
 
 The administration committee of five is chosen by the council 
 from amongst its members in such manner that the several sub- 
 districts shall each have representation on it. This committee 
 convenes monthly, and in extra meeting whenever necessary and 
 called by the chairman. It deals directly with the acequiero ma- 
 jor, receives his reports, gives him instructions, receives, checks, 
 and recommends his estimates to the general council; and has the 
 power to order work up to a limit of about $300 of expense per job, 
 over which amount the question has to be considered in general 
 council. 
 
 The acequiero viajor is appointed by the general council. He 
 must be of age, but not over forty-five years old; know how to 
 read, write, and cipher; be a thoroughly practical irrigator; not a 
 citizen of the province; have no interest in the irrigation, and own 
 no land in the district. This officer is the active superintendent 
 of the affairs of the district, and is charged with the duty of main- 
 taining the works, and distributing the water to each irrigator — 
 there being no public irrigators in this district. He is required 
 to live near the center of the district, is supposed to be always 
 on duty, or ready for duty during irrigation periods, and himself 
 patrols the canals instructirfg his deputies and water guards, per- 
 forming part of the actual work of distribution, and is held respon- 
 sible for damage resulting from negligence in this duty. He can 
 
LOCAL REGULATIONS—MURVIEDRO. 405 
 
 execute all works which may be immediately necessary, but must 
 notify the committee without delay; and he has authority to ar- 
 rest offenders against the canal and irrigation regulations, and to 
 fine them up to a certain moderate limit. His responsibilities are 
 great; his powers extensive; and his action intended to be prompt 
 and autocratic; but there is an appeal from him to the administra- 
 tive committee constituting the water tribunal. Of course, there 
 are regulations drawn out in very great detail to guide the super- 
 intendent in the administration of affairs, so that he cannot go far 
 wrong in his actions, if he becomes properly informed as to the 
 facts in each case. Aymard says the lodging of such autocratic 
 powers in the hands of one man, in irrigation matters, is justified, 
 in Spanish experience, by the great utility of and necessity for 
 immediately suppressing an abuse and punishing the offender. 
 
 T'he Judicial Organization? 
 
 The general council designates five or six experts in irrigation 
 and land matters, " who must be trustworthy men, capable, and 
 wealthy enough to assure their independence," and whose duty it 
 is, when called upon, to examine as to questions of fact and prac- 
 tical deduction, and report to the administrative committee sitting 
 as a water court. The experts are sworn in before the administra- 
 tive committee and are always under oath while testifying. Their 
 term of office is two years, and their rate of compensation is fifteen 
 reals each per day of six hours, which is paid by the party de- 
 manding their services. 
 
 The administration committee constitutes a tribunal having 
 jurisdiction of all questions which arise under the water regula- 
 tions, and between persons interested in the irrigation of the 
 district. Within these limits the rulings of the tribunal are with- 
 out appeal, but they can never be on other issues than those of 
 fact as to transgression of the water regulations, degree of offense, 
 amount of damage, and application of stated punishment as laid 
 down in regulations. Punishments consist of imprisonment, fines, 
 and obligations of restitution, and sentences of the tribunal are 
 executory and constitute a lien on the convicted offender's prop- 
 erty. This tribunal meets every eight days, and in extraordinary 
 session at the call of the chairman. In cases wherein expert tes- 
 timony is required to estimate damages, the one expert is chosen 
 
 ' See, Aymard, pp. 113-118. 
 
406 SPANISH IRRIGA TION LEGISLA TION. 
 
 for the occasion, by the tribunal, from the number nominated for 
 the district by the general council; and, furthermore, the provin- 
 cial civil engineer may be called upon to examine and give testi- 
 mony, when advisable. All fines are di\dded into three parts, of 
 which the district treasury takes two and the informer one. 
 
 The offenses specified in the code of regulations are very numer- 
 ous, and the punishment varied. The following being amongst 
 the number: (1) "On no pretext whatever may a water-gate be 
 put in the canal; the offender shall be punished at least $10" 
 (about). (2) "He who takes or attempts to take water outside 
 of his turn, or a greater 'quantity than is due to him; he who stops 
 the water which is not due to him; he who breaks or attempts to 
 break any water-gate, lock, etc., has to pay damages, if any, restore 
 things to their former state, and pay a fine of at least $2." (3) 
 " He who threatens or insults a water-guard for not doing what he 
 should not do, shall be fined from $1 to $4." (4) " If two or more 
 persons are proven to participate in an offense they shall all be 
 punished to the full extent of their deserts under the regulations." 
 (5) For a second offense a fine maj' be doubled. (6) Any person 
 interested in the irrigation of the district may report an offense, 
 but he must lodge the information within six days after the time 
 of the alleged occurrence, and be present at the trial, on pain of 
 himself being punished if not on hand to explain. 
 
 SECTION IN. 
 
 The Disteicts of Alicante and Elche. 
 
 Alicante — District and Water Right} 
 
 In the province of Valencia, near its southern extremity, about 
 eighty miles south of the city of Valencia and its irrigated huerta 
 described in this chapter, is the small city and irrigation district 
 of Alicante, situated adjacent to the seacoast and upon a plain 
 sloping to the shore. 
 
 The water-right holdings in Alicante are of somewhat complex 
 nature, because they are of two different characters which have 
 become mingled. There are the natural waters of the river, whose 
 possession dates back ages ago, and those made available for irri- 
 
 ' See, Aymard, pp. leO-KH; also, Llaurado, pp. 584-586. 
 
LOCAL REGULATIONS— ALICANTE. 407 
 
 gation by storage in an artificial reservoir of comparatively recent 
 date. In 1247 the infanta of Castile conquered Alicante from the 
 Moors, and in rewarding his adherents and placating the people 
 he "made over to the noblemen, inhabitants, and cultivators of 
 the town of Alicante and the neighboring villages all the territory 
 comprised within certain limits, with his charges and his rights, 
 his mountains and his pasture lands, his springs and his rivers, 
 so they could enjoy them as well or better than they ever had 
 done during the times of the Moors." 
 
 Following this royal gift, the town council divided the water 
 running in the Monegre river between all the owners of the culti- 
 vated lands. The normal discharge of the stream in season of 
 low flow, when irrigation was most needed, was not sufficient to 
 irrigate all this property. The water rights were held as a sepa- 
 rate property from the land, there having been no plain terms to 
 the contrary attached to the transfer, and in the course of time 
 these rights became concentrated in fewer hands. Thus, some 
 land was left without water, the owners of some had an abundance, 
 and others had a short supply. 
 
 Things remained in this condition until about the close of the 
 sixteenth century, when it was finally determined to build a large 
 reservoir and store the waters of floods which ran to waste when 
 not needed in irrigation. This was done upon the basis of an 
 agreement of which the following is an abstract. All the owners 
 of water-rights came into the association, together with the owners 
 of irrigated lands who held no rights to water, and those of the dry 
 lands which with the irrigated tracts formed a compact district. 
 Proprietors of old water-rights renounced all claim to the waters 
 of freshets, and to all waters over and above the amount thereto- 
 fore established as the normal low water flow of the stream. All 
 other proprietors disclaimed any right to the normal flow. All 
 proprietors joined in proportion to the area of their irrigable lands 
 within the district, in the enterprise of storing the surplus waters. 
 
 This agreement was approved by the Spanish government, but 
 on the condition, which was afterwards inserted, that the stored 
 water should be made an appurtenance to the lands of its owners, 
 in proportion to their area. Furthermore, there was a restriction 
 placed upon the sale of the old water-rights, namely, that such 
 sale could only be made to owners of lands in the irrigated dis- 
 trict. Thus, there is a water-right inherent to the land, and an- 
 other which the land owners specially and only are privileged to 
 
408 SPANISH IRRIGA TION LEGISLA TION. 
 
 purchase from each other. Under this arrangement the owners of 
 the old water-rights hold near three fourths of the water, hut do 
 not own one half of the land, so that they have much more water 
 than they require, whjle others have not near enough. This in- 
 equality of water-right distribution, instead of having the effect of 
 causing transfers of the salable water-rights themselves, and thus 
 equahzing the holdings, has brought about a peculiar system of 
 selling ".irrigation turns," which is not found elsewhere. 
 
 System in Distribution} 
 
 There are no lists of division of waters prepared, giving each 
 proprietor his hours of irrigation, but simply, at the office of the 
 S3nidicate, a register having the name of each proprietor with the 
 number of hours of water to which he is entitled, according to 
 his holding of water-rights and the length of the period fixed for 
 irrigation. This period contains 1,038 hours, and water tickets, 
 or albalaes, for hour, half hour, and quarter hour turns of irriga- 
 tion, are prepared, in the aggregate representing the full time. 
 These tickets are issued to the holder of water-rights, in amount 
 corresponding to his registered shares, eo that, in effect he receives 
 a certificate of ownership of his certain proportion of 1,038 hours 
 flow of the canals, before the commencement of each period. This 
 certificate, in the form of a number of fractional tickets, he can 
 hold, or dispose of in whole or in parts, and he sells the tickets 
 for such proportion of his water as he will not want for the period, 
 and which is not attached to his lands, and whoever wants it most, 
 of course, will pay the highest price for it. Thus, in times of 
 scarcity water tickets are high, in times of plenty they are low. 
 These transfers are made generally by private negotiation and on 
 market days when the people are collected in the principal towns, 
 but sometimes during droughts they are put up at auction, and 
 there is sharp competition in the bidding. 
 
 In irrigation under this system the distribution commences at 
 the head of each main distributary. The guard in charge gives 
 the water to each irrigator in turn for the number of hours for 
 which he holds tickets, and so on to the end. If two or more irri- 
 gators desire to divide the flow amongst them for the aggregate 
 period of their tickets, the arrangement is made with the aceguiero 
 and the irrigation goes on. 
 
 ^ See, Aymard, pp. 165-173 ; also, Llaurado, pp. 586-588. 
 
LOCAL REGULATIONS— ALICANTE. 409 
 
 The Administrative Organization} 
 
 In ancient times the irrigations of Alicante were managed di- 
 rectly by the users of water themselves. The principal of general 
 suffrage of all interested in irrigated lands was applied on the 
 broadest scale, as I have written of it for Valencia. But this 
 system was set aside by act of Philip V, who, in 1739, arbitrarily 
 took possession of the waters of the district and caused them to 
 be administered by a royal agent acting at once as manager of 
 the works and judge of the contentions that grew out of the use 
 of the waters. This order of things lasted until 1840, when, during 
 the revolution of that time, the cultivators of Alicante demanded 
 the restoration of their ancient right to manage their own irriga- 
 tion affairs, and their request was looked upon with favor by the 
 central administration. 
 
 In obedience to a royal decree of 1849, an extended regulation 
 was drawn up by a commission of interested proprietors, at the 
 head of whom was one who had paid great attention to irrigation 
 organizations elsewhere. This draft of regulations was a model 
 that has since been largely followed, but it temporarily met a sad 
 fate. The governor of the province bitterly opposed granting the 
 irrigators the right to elect their representatives in the managing 
 council, and on his recommendation this feature of the proposed 
 regulation was changed in approving the organization, so that 
 the councilmen were appointed by the general government on the 
 recommiendation of the governor. Aymard says : " This part of the 
 regulation of Alicante, otherwise so perfect, was a great blemish 
 on the irrigation institutions of Spain. For this is the only local- 
 ity" (in southern and eastern Spain) "where self-government of 
 irrigators does not exist, and this self-government, when well or- 
 ganized, has produced everywhere such excellent results that we 
 regret that it is otherwise in Alicante." 
 
 Since the date of Aymard's writing, as we shall see in subse- 
 quent chapters of this report, general laws of Spain have given to 
 all irrigating communities the right of selecting their own officers, 
 so that the order of things has probably been changed to this basis 
 in Alicante, where, at the time of Aymard's visit, great dissatis- 
 faction prevailed. 
 
 ' See, Aymard, pp. 174-184 ; also, Llaiirado, p. 589. 
 
410 SPANISH IRRIGA TION LEGISLA TION. 
 
 Elche — The District and Water-Right} 
 
 Also in the province of Valencia, about twenty miles southwest 
 of Alicante, last described, and about twelve miles from the sea- 
 coast, is the town of Elche and its irrigated huerta, in a valley 
 slightly cut off from the sea by rugged hills, but with free drain- 
 age outfall thence by the way of the river Vinalapo. 
 
 The irrigation water-rights in Elche are upon a decidedly dif- 
 ferent basis from that of Alicante. " It was a measure of great 
 foresight that in the sixteenth century attached the water to the 
 lands in the latter place, thus preventing them from getting into 
 the hands of capitalists who could only have an indirect inter- 
 est in the development of agriculture." — [Aymard, p. 185.] The 
 waters of Elche, after the conquest from the Moors, were turned 
 over to the owners of the irrigable lands, and, as in the case of 
 Alicante, without any stipulation making them appurtenant to the 
 lands, and the consequence has been that they have gradually 
 passed into the hands of capitalists, who hold them as a commod- 
 ity. " The ownership of the water-rights is to-day in entirely dif- 
 erent hands from the ownership of the land. The landholder has 
 no right to irrigate at all. When he needs water he buys it, the 
 same as he does manure for his land when he wants to use it." — 
 [Aymard, p. 185. 
 
 The water-rights are held by local capitalists, in 814 parts or 
 shares, as it were, and owners are entitled to one vote for each 
 half share held. There is an annual assembly of shareholders, 
 at which are elected a general superintendent or fiel de aguas, a 
 secretary, a number of guards, and the judges or commissioners 
 hereafter to be spoken of. These officers all hold for one year 
 only, except the judges, who hold for two years each. The four 
 judges, with three members of the council of the town, under the 
 presidency of the alcalde, form the council of administration. The 
 members of the municipal board being elected by general suffrage 
 of all the qualified electors, the irrigators obtain in this way a 
 voice in the management of the works. 
 
 The Administrative Systevi!' 
 
 The administrative council determines upon the expenses for 
 the year, fixes the rate of assessment necessary to raise funds to 
 
 1 Sec, Aymard, pp. 185-188 ; also, Llaurado, pp. 579-580. 
 ^ See, Aytaard, pp. 186-190. 
 
LOCAL REGULATIONS— ELCHE. 4H 
 
 meet these demands, and makes the levy. This levy is upon the 
 owners of the water, only, in proportion to their respective inter- 
 ests. If the assessment is not paid within a certain specified time, 
 the delinquent owner is summoned before a civil court; or else the 
 council decides that the proceeds of sales of water turns made by 
 the delinquent on succeeding sales days, shall be held by the 
 oflBcers in sufi&cient amount to meet his dues. 
 
 Every morning at seven o'clock, in front of the office of the jkl 
 de aguas, there is held a sale of water turns for the twenty-four 
 hours commencing at six o'clock in the afternoon of the day of 
 sale. These sales are of the rights of the individual stockholders 
 for the time specified. If any such holder desires to use his water, 
 or for any reason withhold it from sale, he does so at his pleasure. 
 There are, in consequence, times when there is much water in the 
 market and times when there is but little, and as demand goes 
 up while supply decreases, there are great fiuctuations in prices. 
 These transfers are generally at private sale, and made by the 
 owners themselves or by commission agents. When sales are 
 made on account of delinquent taxes for the benefit of the main- 
 tenance fund they are generally made at auction. 
 
 This exchange or bourse is presided over each day by a com- 
 mission composed of one of the judges elected by the water-right 
 owners, the secretary also so elected, and the general superintend- 
 ent. The minimum part of the Vhole twenty-four hours run of 
 water, which the regulations will recognize in a sale, is one eighty- 
 eighth, so there can be only eighty-eight sales per day. All own- 
 ers of water can sell to any owner of land, so there is no limit to 
 the irrigation district except that forced by the possibilities of con- 
 ducting the water and the volume of water to be delivered. 
 
 The judges are selected from the best citizens — those "independ- 
 ent and having sufficient leisure " to attend to the duties. They 
 must be without interest in water-right ownership, and men of in- 
 telligence and integrity. Their term of office is two years, and their 
 service gratuitous. There being four of them, and only one-acting 
 each day, their service in the capacity of judge takes only a couple 
 of hours in the early morning once every four days. Their func- 
 tions are rather those of arbitrators than of judges, and are exer- 
 cised as follows: There are twenty-one ditches branching from 
 the principal canal; but never more than ten or eleven of these 
 are used at one time, for the water supply brought by the canal 
 is not sufficient to fill more of them. At the exchange two 
 
412 SPANISH IRRIGA TION LEGISLA TION. 
 
 classes of conflicts ariee which require iramediate settlement: 
 
 (1) two proprietors located on different ditches want to buy 
 water to be delivered within the succeeding twenty-four hours, 
 it is not possible to make the delivery at points so far apart; 
 which is to be favored and which must wait until another day? 
 
 (2) two proprietors want to buy water to be delivered from the 
 same ditch, but in amount greater than it will carry to them; 
 which must wait over? The arbitrator of the exchange decides 
 these points immediately as they come up, the selling goes on, and 
 the results are recorded by the secretary as fast as reported, for the 
 guidance of the superintendent in making out his schedule for the 
 next day's work. 
 
 The Judicial or Arbitration System} 
 
 There is no water tribunal, as at Valencia. All offenses of a 
 grave character are reported to the administration committee, who 
 have the offender arrested and prosecuted before the ordinary 
 municipal justice of the peace. Minor offenses are punished, in- 
 directly, in the action of the judge of sales, who can favor those 
 who habitually obey the rules, and decide against those who offend 
 against them. 
 
 The system at Elche is a peculiar one in Spanish experience, 
 being based upon unregulated water-right ownership independent 
 of the land proprietors. It has'certainly brought about a curious 
 result in the organization of its governing council and the admin- 
 istration of distribution. The council is composed of the four 
 "judges" elected by the owners of the water-rights, three mem- 
 bers of the municipal council elected by the qualified electors of 
 the town, and the alcalde, who is appointed by the government.^ 
 Thus, although the irrigators have no ownership of the water- 
 rights, they secure, by election of the municipal councilmen, indi- 
 rectly, almost as great a representation on the board of control as 
 do the owners of the water-rights by the election of their "judges." 
 The objection urged is, that the water-right owners take no per- 
 manent interest in the works; water shares are made the subject 
 of speculation, and there is no enterprise in the management. 
 Speaking of the system, Aymard wrote: 
 
 " The great mischief of the system is to create an antagonism 
 between the proprietors of the water and those of the land, and to 
 
 ' Same reference as for last subheading. 
 
 * This was before the remodeling of the Spanish municipal system. 
 
LOCAL REGULATIONS— ELCHE. 413 
 
 place those who, in an agricultural point of view, are the deserv- 
 ing ones, dependent on those who are capitalists and strangers to 
 the lands tilled. These latter certainly would not see the dam put 
 in jeopardy, because their property lies there, but they take no 
 genuine interest in the management of the waters or in the devel- 
 opment of the irrigation resources of the country; for they may 
 be moved by the thought that the more water there is, the cheaper 
 it will be. There is a certain limit, beyond which the supply of 
 water increasing, diminishes their revenue. With a system like 
 this, we can never see what is at present being done in Alicante — 
 a syndicate of landholders not afraid of an estimated expense of 
 600,000 to 700,000 francs to further develop the water supply of 
 the neighborhood. All spirit of progress in Elche is fatally kept 
 down."— [p. 189. 
 
 Note to Chapter XVII. 
 
 It must be remembered that this chapter refers to the state of aflfairs in some 
 old districts of Spain, as they were twenty years ago, and that it has been pur- 
 posely written thus, to convey the lesson which the results of a natural devel- 
 opment of irrigation organization afford. Since that period Spain has adopted 
 general laws, in part based upon Valencian experience in local administration 
 o£ waters, and under these, changes have taken place in the governing organiza- 
 tion of some of the districts. Under her constitution of 1876 the municipal sj^s- 
 tem of the country has been remodeled, also, so that the alcaldes of towns are 
 elective, and other important changes are made, as will appear in subsequent 
 chapters. 
 
 AUTHOKITIES FOR CHAPTER XVII. 
 
 Aymard. — " Irrigations of the South of Spain." By Maurice Aymard, Engineer, 
 
 etc. [French.] 1 vol., 8 vc, Paris, 1864. See Chapters I, II, III, IV, 
 
 V, VII, XII, XIII, and XIV. 
 Llaurado. — "Treatise on Waters and Irrigation in Spain." By D. Andres Llau- 
 
 rad6, Chief Engineer, etc. [Spanish.] 1 vol., 8 vo., Madrid, 1878. See 
 
 Book Second, pp. 590-622, and 579-589. 
 Moncrieff. — [Work cited as authority for Chap. VII.] See Chapters IX, X, 
 
 and XI. 
 
414 SPANISH IRRIGA TION LEGISLA TION. 
 
 OHAPTEK XVm.-SPAIN'^'; 
 
 OLD LOCAL WATEE LAWS AND OUSTOMS'^'-MUEOIA AND 
 
 GEANADA. 
 
 Section l.—Murci-a^-lDistriet of Murcia. 
 
 The District and the Ancient Regime. 
 
 The Reformed Organization. 
 
 Self Government fully developed. 
 
 The Administrative and Judicial Systems. 
 
 Section II. — Murcia — District of Lorca. 
 
 The District and Water-Rights. 
 
 Reformation of the System. 
 
 Administration — Director — Syndicate — Suffrage. 
 
 Selling Water— Method and Result. 
 
 Section III. — Murcia— District of Almansa. 
 District and Water-Rights. 
 Assessments and Maintenance. 
 Organization and Administration. 
 
 Section IV. — Granada — District of Granada. 
 District and Water-Rights. 
 Characteristic Features of the System. 
 Ancient and Modern Systems Contrasted. 
 
 SECTION I. 
 
 Murcia — District op Muecia. 
 The District and the Ancient Regime} 
 
 In the province of Murcia, about fifty miles southwest of Ali- 
 cante, last written of^ and thirty miles from the border of the 
 Mediterranean sea, is the city and irrigated district of Murcia, on 
 the banks of the Segura river, which is one of the largest in south- 
 eastern Spain. 
 
 The most ancient known document relative to water-rights in 
 Murcia is a royal cedula of 1277, which reads as follows: "Know 
 all men by these presents, that I, Don Alonzo, by the grace of 
 
 1 See, Aymard, pp. 211-214. 
 
LOCAL REGULATIONS— MURCI A. 415 
 
 God King of Castile, Toledo, Murcia, etc., wanting to give to the 
 municipality of Murcia a mark of our favor, and to have all quar- 
 reling stopped between users, order that the water shall be di- 
 vided equally between yourselves, in such manner that each one 
 has it in proportion to his land and on the day assigned to him." 
 This document constitutes the foundation of the Murcia water- 
 right. The waters of the river have thenceforward been attached 
 as an appurtenance to the irrigated lands within the jurisdiction 
 of the town, their administration has been in charge of the mu- 
 nicipal council, and this arrangement has been confirmed by sev- 
 eral royal decrees or cedulas promulgated at various times during 
 the centuries that have intervened. 
 
 The water is in the fullest sense a common property, and the 
 right to it is inseparable from the land ownership. If an irrigator 
 does not use his water on his land, it will not be distributed to 
 him. He cannot take it and waste it; he must usefully employ 
 it, or it must remain with the common stock, under the title and 
 the regulations. 
 
 Previous to 1849 the management of the whole system of distri- 
 bution was also in the hands of the town council, and there was 
 much confusion and dissatisfaction, notwithstanding the fact that 
 the water supply was abundant and the tax rates low, for there 
 was no full and carefully prepared code of regulations, and no sys- 
 tematic management of the works. The members of the council 
 were elected in the community at large which embraced much 
 country not in the irrigation district, and the irrigators objected 
 strongly to having the details of water distribution managed by 
 officers whose selection they could not control. The regulations in 
 force were old and composed of unconnected resolutions adopted 
 at various times scattered through centuries, and had never been 
 codified and published. In response to an unanimous demand on 
 the part of the irrigating landholders, the municipality, in 1849, 
 consented to the organization which now exists, and the munici- 
 pal council framed and promulgated the ordinance which governs 
 it. This ordinance is a veritable rural code, so full and complete 
 is it in its provisions, and is spoken of by the authorities at hand 
 as remarkable for its clearness and completeness. 
 
41 6 SPANISH IRRIGA TION LEGISLA TION. 
 
 The Reformed Regime} 
 
 The huerta of Murcia is about fifteen miles long, with a maxi- 
 mum width of four miles, comprising something over 26,000 acres, 
 and through its length runs the river Segura, the source of irriga- 
 tion water supply. It is dammed at the upper end of the garden 
 lands, five miles above the town, and there sends ofif a large canal 
 on each side. 
 
 The river and water supply within the municipal jurisdiction, 
 the dam, headworks, and these two canals are in charge of the 
 municipal council or ayuntamiento, selected by the electors quali- 
 fied for the vote under the Spanish national system, in the town 
 and its termino, and in this case the irrigation district is not a con- 
 siderable part of the termino of the town. The alcalde of the town 
 is the executive officer, and he, upon the recommendation of the 
 council, appoints an acequiero in chief, or superintendent, for each 
 of the two main canals, and these have such assistants as may 
 be necessary. The expense of maintenance and operation of the 
 xnain works is borne by a special fund raised by taxation, and 
 levied by the town authorities with other municipal taxes. 
 
 There are twenty branches from each of these canals, each 
 branch independently and completely serving a little sub-district, 
 the owners of property in which compose an association managing 
 its internal affairs, so far as these do not affect those of other sub- 
 districts, and maintaining its own branch canal. The organiza- 
 tion of these sub-districts constitutes the basis of the whole system 
 for the huerta. 
 
 Self-Government fully Developed} 
 
 The principle of manhood sufirage of all parties directly inter- 
 ested in the irrigation is applied on the broadest scale: Each 
 owner or representative of an irrigated tract, large or small, may 
 cast one vote in the assemblies of his sub-district, of Ids semi-dis- 
 trict, and of the district as a whole. 
 
 Questions affecting each sub-district are considered in the assem- 
 bly of the irrigating owners within it. Questions affecting the 
 interest of owners on one side only of the river, are considered in 
 assembly of the owners, or their representatives, within the twenty 
 sub-districts on that side. Questions involving interests on both 
 
 ■ ' See, Aymard, pp. 213-218 ; also, Llaurado, pp. 556-558. 
 ^ See, Aymard and Llaurado. 
 
LOCAL REGULATIONS— MURCIA. 417 
 
 sides of the river are considered in grand assembly of owners, or 
 their representatives, in the forty sub-districts embraced in the 
 whole huerta. The alcalde of Murcia presides over all assemblies, 
 or names a deputy to preside in his place. 
 
 There is an ordinary assembly held annually in each sub-dis- 
 trict, in each semi-district, and in the district as a whole, and as 
 many extraordinary meetings as may be necessary. The owner of 
 each parcel of land, therefore, may participate in at least three 
 assemblies a year. In practice, however, the land owners gene- 
 rally are present, individually, only in the assemblies of their sub- 
 district, while the higher assemblies of the half districts, and the 
 general assembly for the whole, are attended only by the agents, 
 who, each for his constituency, cast the votes of absent owners. 
 
 Each of the forty sub-districts at its assembly elects its own 
 officers, namely, an agent or "attorney" (so called), two or more 
 reedores, or water superintendents, and in some cases a secretary 
 and treasurer or collector. The agent is the active head of the 
 administration in his sub-district, and the veedores are his assist- 
 ants. His administrative powers are quite similar to those of the 
 syndics spoken of in the description of irrigation organization in 
 Valencia. His term of office is two years, as are also those of his 
 assistants, and they are all eligible to reelection. But as the ser- 
 vice is altogether gratuitous, it is considered a personal sacrifice 
 to accept office, so no individual remains long in position at one 
 term. 
 
 The semi-district assemblies on each side of the river, confer 
 and resolve on matters of importance affecting interests on that 
 side, and elect a general agent, who sees that his territory gets its 
 due portion of the water, and otherwise acts, in the interest of his 
 constituents, as a check on the acequiero of the main canal. 
 
 Administration — Assessments} 
 
 The district assembly elects each year three members of a gen- 
 eral council, or "committee of proprietors" (comision de hacen- 
 dadas), whose terms of office are two years. Thus, this higher 
 council is composed of six members, and it constitutes the gov- 
 erning board of the district in all matters connected with the 
 waters, canals, and irrigation, outside of purely local or sub-district 
 
 ^ See, Aymard, pp. 215-218 ; also, Llaurado, pp. 559-563. 
 07 1 
 
 27 
 
418 SPANISH IRRIGA TION LEGISLA TION. 
 
 affairs, and excepting, also, matters controlled by the ayuntami- 
 ento of the town. The district assembly also elects a treasurer. 
 But the general council elects its own president and secretary. 
 The comision de hacendadas administers the funds, watches over 
 the interests and rights of the water users as a whole, represents 
 them before the ayuntamiento, appears for them and the district in 
 court, and generally supervises all connected with the rural polic- 
 ing and irrigation economy of the huerta. 
 
 Taxes or assessments for sub-district purposes are debated and 
 voted in each sub-district assembly, and collected by its agent, or 
 treasurer if there is one. The same is the rule with respect to as- 
 sessments for common purposes in the semi-districts; and, finally, 
 the general assembly votes the estimates for the purposes of the 
 huerta as a whole, and the comision de hacendadas levies or distrib- 
 utes the tax necessary under this vote. 
 
 The assessment is made after a pecuhar principle. All the 
 lands in the huerta are graded as .first, second, and third class, 
 according to their productiveness. Third class land is assessed 
 as the basis; second class land is assessed at twice as much, and 
 first class land at three times as much per unit of area as third 
 class. This is certainly a very crude method of grading valua- 
 tions, but it was old and time honored when the present regula- 
 tions were drawn up, and had to be adhered to. 
 
 The collection of taxes is made by a collector under the direc- 
 tion of the treasurer and secretary of the district, assisted by the 
 local agent in each sub-district. There is always a personal notice 
 given several weeks in advance to each landholder by the agent 
 in his sub-district, stating the day when he will be called upon, 
 and he must then pay. If he does not, he is reported to the treas- 
 urer or receiver, who immediately lays the case before the coun- 
 cil of experts, which brings suit against all delinquents. 
 
 The Judicial System — Council of Experts} 
 
 The council of experts, or concejo de hovibres buenos, is a feature 
 of the Murcian irrigation administration copied after the water tri- 
 bunal of Valencia. This council is composed of five of the forty 
 " agents" and two of the eighty veedores elected separately by the 
 sub-districts; these seven members of the council are chosen by 
 lot each month from the one hundred and twenty; and hence the 
 
 ' See, Aymard, pp. 218-220; also, Llaurado, pp. 563-564. 
 
LOCAL REGULATIONS— MURCIA. 419 
 
 persomiel of the board is continually changing. But the alcalde of 
 Murcia is its permanent presiding officer, having, however, a voice 
 and vote in its proceedings only when there is an absentee and a 
 tie vote amongst the other members; and he is also the executive 
 officer of the council and carries out its orders. 
 
 The consejo de hombres huenos holds two meetings per week and 
 hears all cases brought to its attention. All persons have the 
 right to lodge information before this council concerning any in- 
 fringement or violation of a regulation, that might bring injury to 
 the community at large, and acts affecting but one individual can 
 be reported only by himself Complaints relating to taking water 
 out of order or turning it away from another, have to be made in 
 writing and be signed by the person reporting and an interested 
 party; and they must be handed to the secretary of the council at 
 least three days before the meeting at which they are to be con- 
 sidered. The council, hearing all testimony, decides immediately 
 or at the following meeting at the latest. 
 
 The jurisdiction of this council extends to all questions arising 
 under the regulations and which do not involve property rights 
 or offense against the general laws of the kingdom. The latter 
 class of questions are brought immediately before the ordinary 
 courts. To the extent of their jurisdiction the decisions of the 
 council of experts are without appeal, except where such flagrant 
 injustice has apparently been done that the ayuntamiento of the 
 municipality may, on petition made within three days, order the 
 case to be reheard before a double council composed of the mem- 
 bers at the time serving and the seven who immediately preceded 
 them. 
 
 Regulations — Maintenance — Review} 
 
 As has been said, the two main canals are maintained at gen- 
 eral municipal expense, under the supervision of the acequieros 
 appointed by the mayor. The branch canals are each cleaned, 
 cleared, and repaired, so far as this can be done by ordinary man- 
 ual labor, annually by the irrigators in the sub-districts which 
 they severally supply. This clearance work is performed in allot- 
 ments to each small group of owners, proportioned to the area of 
 their lands, and made by the agents in each sub-district, and the 
 work is in addition to the sub-district tax to be paid in money, the 
 
 ' See, Aymard, pp. 211-221. 
 
420 SPANISH IRRIGA TJON LE GISLA TION. 
 
 proceeds from which last are applied to sub-district expense other 
 than that which can be worked out by the irrigators in person. 
 
 Reviewing the administrative organization, we find: (1) the 
 river through the municipal termino, its waters, the dam, the two 
 main canals, their headworks and main distributing gates, in 
 charge of the ayuntamiento elected by the municipality of Murcia, 
 at large; (2) the affairs of the irrigation district as a whole, in 
 charge of a general council or comision de hacendadas selected by 
 the general assembly; (3) the affairs of each of the forty sub- 
 districts, in the charge of an agent or attorney and two inspect- 
 ors; which agents, representing their constituents, if these do not 
 want to attend, compose the general assembly, and are themselves 
 chosen by the proprietors in their several sub-districts, in assem- 
 blies; (4) the adjudication of questions arising under the regula- 
 tions and sentencing offenders against these rules, in charge of the 
 council of experts, or concejo de hombres buenos, composed of five of 
 the sub-district agents and two of the inspectors, drawn by lot 
 monthly from the one hundred and twenty severally elected in 
 the sub-districts. 
 
 In closing his account of irrigation organization in Murcia, 
 Aymard wrote: "Administrators and judges, all emanate from 
 universal manhood suffrage of the irrigating land owners; and 
 self government by the consumers is exercised in its fullness. It 
 is proper to specially call attention to the court of experts, for it 
 affords a precept worthy of study. The authors of the regulation 
 of Murcia were not fettered by custom and traditions in this 
 respect. Before 1849 this court did not exist among them; they 
 need not have created it; but they did it because it was necessary 
 and indispensable for a proper carrying out and enforcement of 
 the regulation itself, and the people have recognized that this 
 court is all that was Jiromised for it. This question, then, appears 
 to us to have been judged by the traditions of the past and the 
 experience of the present. The special water tribunal, with its 
 judges versed in the pra,ctice of irrigation, its summary proceed- 
 ings, its verdicts without appeal, its well defined penalties, must 
 be considered an indispensable appendage of all good irrigation 
 organizations." — [p. 220. 
 
LOCAL REGULATIONS. 421 
 
 SECTION 11. 
 MuRciA — District op Lorca. 
 The District and Water-Rights} 
 
 The Guadalantin river is a tributary of the Segura, having its 
 point of junction just above the city of Murcia; about forty miles 
 from' which is the small city of Lorca, having a population of 
 about 22,000 inhabitants and an irrigable huerta of about 27,000 
 acres of land. The Guadalantin is a comparatively small river, 
 and the water supply for irrigation sometimes so nearly stops as to 
 result in crop failures. Although commanded for irrigation and 
 supplied with distributing works, not all of the huerta is watered 
 in any one season; less than half of the lands are irrigated regu- 
 larly every year, and those to which the water is an appurtenance 
 have the preference. 
 
 In the year 1242, when the region round about Lorca was taken 
 from the Moors by the Spanish King of Castile, irrigation was 
 already established. As in other cases spoken of, the monarch 
 made a division of the lands amongst the loyal inhabitants, and 
 a few years afterwards ordered the waters to be distributed in pro- 
 portion to ownership of land whereon they could be used. Later 
 on there came complaints that the larger land owners or counts 
 monopolized all of the water, and that the municipal authorities 
 could not control them. There was then issued a royal order to 
 the governor of the province, as follows: 
 
 " Seeing that the ayuntamiento of Lorca has complained to me 
 that the owners of the fiefs hold back all the waters, and will not 
 let them escape from their huertas for grain or anything else, and 
 that because of this the crops have failed this year; I beg and 
 order you to go and see how this is, and to make an equal division 
 of the waters between all, by days and by time, in such manner 
 that henceforth there shall be no more complaints on the subject." 
 
 The terms of this decree do not differ very materially from the 
 one promulgated for Murcia twelve years later, and elsewhere, 
 spoken of, but the results which have come out of it, with respect 
 to the right of property in and control of the water, are quite differ- 
 ent. As in Elche, the water-rights and lands in Lorca have, to 
 a great extent, gradually become held separately, so that, for 
 
 ' See, Aymard, pp. 221-224; also, Llaurado, pp. 550-552 and 564. 
 
422 SFANISH IRRIGA TION LEGISLA TION. 
 
 nearly all the irrigations, when the cultivator wants water he buys 
 it as so much merchandise at an auction. In several of the sub- 
 districts or small irrigation centers which compose the district as 
 a whole, water is still held as an appurtenance to the land, and 
 the owners receive their share on this basis. 
 
 This result of separating the water from the land has not come 
 about without great struggles and opposition, for the working 
 farmers as a class have all along opposed such an interpretation 
 or straining of the terms of the royal gift, while rich landholders 
 and capitaUsts have advocated this reading of it, and the charge 
 is made that undue influence has had its effect with the town 
 council, in securing the acceptance of such result. At the time 
 of Aymard's writing (1864) the contention was still going on, but 
 the outcome had then so long been sanctioned by custom that a 
 change back to the original system could hardly be hoped for. 
 
 Reformation of the System} 
 
 From the thirteenth century to near the close of the eighteenth, 
 the care of the works and distribution of the waters was under 
 the immediate control of the ayuntamiento of the town, but there 
 had been alwaj^s a great deal of trouble, dissension, and many 
 failures of crops from short supply and bad management. The 
 right to most of the water had passed out of the hands of the irri- 
 gating land owners; it had become an article of speculation, and 
 was sold daily by auction, at which a special municipal ofiicer 
 called the alcalde del agua presided. There were several excellent 
 localities for the storage of water in the neighborhood, and a large 
 surplus for storage was wasted in floods each year. But owing to 
 the absence of a united interest in the district, although projects 
 for storage had repeatedly been investigated and discussed, noth- 
 ing had ever been done towards construction. 
 
 " These projects encountered an incessant opposition from the 
 owners of the water, among whose number were found some of the 
 richest and most influential men of the country. An increase in 
 the supply of the water would immediately result in the lowering 
 of the price of the unit of volume. All projects having this for an 
 object, had those people for ad^'ersaries whose capital was invested 
 in the ownership of the waters of the natural flow of the river." — 
 [Aymard, p. 243. 
 
 See, Aymard, pp. 243-247 ; also, Llaurado, pp. 570-571. 
 
LOCAL REGULATIONS— LORC A. 423 
 
 This question had grown to be of so much importance that in 
 1785 the general government of Spain came to the rescue and 
 ordered the construction, at national expense, of two immense 
 masonry dams to store water for the plains of Lorca, as a matter 
 of national importance. It was the intention to sell the water to 
 irrigators at prices which would reimburse the government by a 
 fair rate of interest on the moneys invested, but, at the same time, 
 be very much less than the rates which ruled in sales of the waters 
 in private ownership. The dams were built and waters stored. 
 
 In order to harmonize matters as much as possible, as was nec- 
 essary, the government in 1790 took the management of the old 
 works and distribution of waters out of the hands of the ayunta- 
 miento of Lorca, and placed this, with the management of the new 
 works and stored waters, in the care of a syndicate of nine mera- 
 bers, of whom four must be owners of old water rights, and five 
 must be land owners and irrigators, and over these, as president of 
 the syndicate, was established a director appointed by the general 
 government. 
 
 Although one of the dams built by government was injured 
 soon after construction so as to render it useless, and had never 
 been repaired (1865), and although the reservoir space behind the 
 other dam had become completely silted up and rendered unavail- 
 able, thus practically doing away with the property constructed 
 by government, the same administrative organization was pre- 
 served to within a few years past. 
 
 Administration — Suffrage — Director} 
 
 The members of the syndicate are elected by the suffrages of cer- 
 tain adult persons interested in the irrigations, namely: (1) owners 
 of the private water rights, who during five consecutive years have 
 received an anntial rental of at least 1,000 reals ($50) from auc- 
 tion sales of their waters; (2) all owners of irrigated lands who 
 receive from these lands an annual rental of at least 500 reals; 
 (3) all irrigators, who on account of their cultivations, pay a tax 
 annually of at least 100 reals. 
 
 The director must be a person of high standing, of known and 
 acknowledged familiarity with agriculture, and especially with 
 irrigation. He must not be a native of Lorca, nor have married 
 
 ' See, Ayniard, pp. 247-250; also, Llaurado, p. 574. 
 
424 SPANISH IRRIGA TION LEGISLA TION. 
 
 a woman of Lorca, and must not possess either water or irrigable 
 lands in that region. 
 
 The syndicate was formed under a decree of 1790, and has had 
 its powers extended by other decrees, the last of which before the 
 time of our principal authority, was issued in 1859. Thus amend- 
 ed, it has control of all irrigation works and waters in the district, 
 and of the dams, water supply works to the city, embankments 
 or levees, and other works. To meet the expense of the mainte- 
 nance and administration, a certain proportion of the waters of 
 each owner were deeded to the ayuntamiento, the proceeds of sales 
 of which were put in a fund for the purpose. This system also 
 was kept up under the new regime. 
 
 The syndicate meets regularly once a week, not counting extra 
 meetings called by the director or by a majority of the syndics. 
 It is the deliberative and legislative body of the administration: 
 considers all questions relative to the works, waters, and distri- 
 butions; authorizes all important works and limits their cost; 
 audits all accounts; inspects, and in a measure controls the acts 
 of the director; and may report him to the governor of the prov- 
 ince or the central government. 
 
 The director represents the government in the syndicate and 
 presides at its meetings; executes the resolutions of the syndicate; 
 presides each day at the water auction sales; represents the com- 
 munity of irrigators in the courts; convenes the qualified electors 
 of the district to deliberate on matters of extra expense; proposes 
 to the government a secretary and other office employes, and di- 
 rectly appoints the water-guards and their assistants. 
 
 Such are the director's administrative duties. He has also most 
 important functions as a judge: performing the duties which in 
 Murcia, Valencia, and elsewhere, we have seen imposed upon a 
 tribunal composed of a number of members. The regulation of 
 1859 fixes the jurisdiction of this judge-director, substantially as 
 follows: "The director shall be judge of waters. In his position 
 he must hear all the differences that arise between parties, in rela- 
 tion to matters of which the regulations treat, and also all offenses 
 in the matter of irrigations punishable under article in said ordi- 
 nance. His judgments bearing on any of these articles, are with- 
 out appeal, except a party believes that a wrong application of the 
 ordinance has been made, when he may appeal to the governor of 
 the province." 
 
 The various ordinances, and particularly that of 1831, lay down 
 
LOCAL REGULATIONS— LORCA. 425 
 
 in great detail and with remarkable completeness, a code of regu- 
 lations under which the district is governed. These are printed 
 and generally circulated, so that the director acting as judge can- 
 not go far wrong without being checked. 
 
 There is a most curious and complex subdivision of water-rights 
 in Lorca, which is the outgrowth of separation of the water and 
 land ownership. From the earliest times the district has been 
 divided into three sub-districts. To one was originally allotted -^ 
 of the water, to another -f^, and to another if. These allotments 
 were not exactly in proportion to the areas to be irrigated, as it 
 "turned out, so a subdivision of rights made the amount of water 
 due to the standard area of land different in each sub-district. 
 One of the sub-districts divided its allotment into four parts and 
 distributed water by fourths of the stream for certain periods of 
 time variable with the area of the original owner's land. Thus 
 was established a system of distribution with a fixed head of water 
 and a variable period of time as factors of the unit of ownership. 
 The other two sub-districts divided their waters into as many 
 parts as there were shares or owners, on some certain unit of area 
 as a basis, and thus established systems of division by fixed times 
 and variable heads of water; and, for reasons already given, the 
 "units in each of these two sub-districts predicated on the same 
 system even, are not the same. Thus, within the district, to start 
 with, there are three different units of measure for water. Now, if 
 the water were attached to the lands, this would not be so serious 
 a matter, but it has not been held so. Water from one sub-dis- 
 trict is sold in any other, and, hence, dire confusion results in 
 ■distribution. 
 
 There are a number of other causes which vary the volumes of 
 the unit of water as bid for at the auctions, but it is unnecessary 
 to explain these here. After seven pages of illustration on these 
 points, Aymard summarizes the matter thus: 
 
 "We have now nearly a complete idea 'of the extreme complex- 
 ity of these divisions. The unity varies not only from one canal 
 to another, but also from day to day on the same canal. 
 
 " It varies first, by reason of the volume of water in the river 
 not being constant; second, by reason of the number of fractional 
 parts into which the flow is divided in the several canals; third, 
 by reason of deductions made on certain days of the week for the 
 free irrigation of certain districts where the water is attached to 
 the land; fourth, by reason of the season; and, fifth, by reason of 
 
426 SPANISH IRRIGA TION LEGISLA TION. 
 
 the variation in the length of the days and nights and the water 
 shares being owned by the day or night. 
 
 "Each individual attending the auctions must perfectly know 
 the conditions of the sale, or he runs a risk of making a mistake 
 in his calculations. But it must be said that there is not a peas- 
 ant who is ignorant on the subject. * * * Each one always 
 knows perfectly well what he buys, without it being necessary to 
 give him any other explanation than the name of the h/Ho on which 
 he has bid."— [pp. 229-230. 
 
 Selling Water — Method and Results} 
 
 The auction sales take place in a large room or hall arranged for 
 the purpose, in the city of Lorca, wherein is a floor sloping towards 
 one end, at which is a raised stage where sit the director and two 
 secretaries. The director governs the proceedings; and the secre- 
 taries record the sales, which are not made individually by seller 
 to buyer, but by the director representing the interests of all water 
 proprietors. These owners of the water-rights do not appear at the 
 sale, but the purchasers of water bid for the use of the turn or frac- 
 tion of the turn of each of the several owners, as it is put up at 
 auction. The division of the waters is such that there are made 
 each day for that following, eighty-eight sales, the value of privi- 
 leges under which, as already explained, vary much amongst 
 themselves. 
 
 Aymard describes the scene, at these auctions as being most ex- 
 citing and demoralizing: bidding is very spirited and sharp, and 
 although when a purchaser has bought one turn he is allowed by 
 courtesy to take as much more as he wants at the same price, when 
 he is satisfied the others again wrangle and become belligerent in 
 bidding for the next turn. 
 
 Directly the sale is over the secretary makes out a statement to 
 guide in the distribution of the waters on the following day, and 
 in posting to the accounts. The list is forthwith read aloud and 
 posted. Bills are made out for each purchaser, signed by the di- 
 rector, delivered to the purchaser, who pays to the treasurer and 
 gets his receipt, which he uses next day as a certificate that he is 
 entitled to the water, when the guard comes to distribute it. 
 
 The dividend to each proprietor is made each month according- 
 to the average of sales for the month, and in proportion to his 
 ownership of the rights of the same class. The price paid for 
 
 1 See, Aymard, pp. 225-242; also, Llaurado, pp. 567-571. 
 
LOCAL REGULATIONS— LORCA. 427 
 
 water was very high at the time of Aymard's writing, so thai) irri- 
 gation cost more per year per acre than anywhere else in Spain. 
 
 Aymard thus records his estimate of this principle and prac- 
 tice of disposing of waters; "If we tire in the presentation of 
 these matters it is not for the vain pleasure of giving a description 
 of the scene, but that these details carry with them a profound 
 insight into the whole system. They lay hare the viciousness of 
 this system of auctions applied to merchandise like this, and 
 they show how an institution which is bad in principle can be in 
 part corrected in practice, for the good of the people." — [p. 233.] 
 The irrigator, spurred by the necessity for water for his crop which 
 constitutes his support, goes to auction, where he finds many oth- 
 ers brought by the same want. Necessity, rivalry, excitement 
 combine to force him on — he pays more than the water is worth, 
 more than his returns will justify. This is the rule. And it is 
 the curse of which Aymard speaks. But practice has developed 
 the courtesy that when he has bid in one lot of water he takes as 
 much more as he wants at the same figure. This is the pallia- 
 tion in practice which our authority notices. But the outcome is 
 large dividends for the water owners, a languishing agriculture, 
 a poor peasantry, and no enterprise to develop the country. 
 
 Aymard finds in the outcome of irrigation in Lorca, as com- 
 pared to that of Valencia and other places in Spain where the 
 water is attached to the land in ownership, a lesson to which he 
 draws special attention. He produces the argument used in favor 
 of the Lorca system and then answers it: 
 
 " ' Why,' say these owners., ' should the ownership of water be 
 hampered with greater impediments than that of land? If it 
 suits me to draw my revenue from sales of water rather than from 
 crops on lands, why should I not be permitted to do so; by what 
 right can they prevent me ? Is it in the name of general interest? 
 Well, provided the water is used, it is of little importance on whose 
 land it is put. Furthermore, the selling of water is the best means 
 to prevent its being wasted. When the farmer receives his water 
 on a certain day, without anything to pay, he always gives useless 
 irrigations, which would have been better employed on other lands, 
 and this abuse need not be feared when water is sold. This sys- 
 tem is the most satisfactory to all legitimate requirements of a 
 general interest which is to irrigate by a given volume of water 
 the greatest area of land possible.' 
 
 "These reasons considered by themselves are seductive; but 
 those who bring them forward do great injustice by not mention- 
 ing the antagonistic attitude which the system of sales has engen- 
 
428 SPANISH JRRIGA TION LEGISLA TION. 
 
 dered between the owners of water and those of the lands. A 
 good regulation could prevent abuse and waste of water; nothing 
 can prevent the deplorable consequences of an organization that 
 trusts the destiny of the land to capitalists whose interest is in 
 direct opposition to the water resources of the country. _ This sys- 
 tem is the reverse of progress; it condemns the land to inactivity, 
 that has the misfortune to be submitted to it, and this estimation 
 is abundantly proven by the example at Lorca."— [pp. 243-244. 
 
 This authority shows that water rates are enormously high in 
 Lorca, and that agriculture cannot stand them; that there is no 
 enterprise in the land; that in spite of government assistance the 
 district has not advanced; that even the works built by govern- 
 ment have been allowed to go out of use, while but a small part 
 of their original cost would rehabilitate them and put them again 
 in commission; and he attributes these results to the facts that 
 the irrigators do not own the water-rights; that the speculators in 
 water control the situation, and keep down the spirit of enterprise 
 to keep up their rates for water; and he, also, very unfavorably 
 contrasts the spirit pervading the people of Lorca, as evidenced by 
 their works, with that of the people of Valencia, as evidenced by 
 their works based upon ownership of land and water together. 
 
 SECTION III. 
 
 MuRciA — District of Almansa. 
 
 District — Water Rights — Assessments.' 
 
 At the foot of a mountain range, on the northern boundary of a 
 large interior valley, in the northern part of the province of Mur- 
 cia, about sixty-five miles southwest of the city of \^alencia, and 
 the same distance northwest of Alicante, lies the town and irri- 
 gated district of Almansa. 
 
 The irrigations at Almansa are effected with water drawn from 
 a reservoir, the origin of whose dam is unknown, but which, after 
 a long period of use in a partly built condition, was taken in hand 
 for completion as long ago as the year 1586. The work was built 
 at that time by the associated owners whose lands were to be irri- 
 gated, and under the leadership of the governor of the province; 
 and these, at the same time, together with the municipal council 
 
 See, Aymard, pp. 122-128; also, Llaurado, pp. .583-584. 
 
LOCAL REGULATIONS— ALMANSA. 429 
 
 of the town, drew up and adopted a set of regulations for the gov- 
 ernment of irrigation in the district. 
 
 The water right has from time immemorial been an appurte- 
 nance to the land, which bears in direct proportion to area 
 irrigated each year, the ordinary expense of maintenance and 
 administration of works. Thus, as is not infrequently the case, 
 when by reason of light rainfall the reservoir does not fill and the 
 water supply is short for the season, each owner receives water in 
 proportion to his land, if he calls for it, and may 'use it on all or a 
 part of his land. If he takes all of his proportionate part of the 
 water, he pays his full proportionate part of the year's expense. 
 He may, however, call for and take less than his share, and then 
 he pays less in proportion; so that if he does not take water at all, 
 he pays nothing. 
 
 The amount of this ordinary tax is determined annually in 
 advance, from estimates of probable expense and water supply. 
 If, on account of an abundance of water, the product of this tax 
 exceeds the necessities of the year, no rebate is allowed. The sur- 
 plus is held over to the next year, and a less rate levied then by 
 reason of the available cash in hands. Should the supply disap- 
 point the expectations in any one year, and, from this cause or 
 any other, the revenue falls short of the demand for expenses, an 
 extraordinary tax is levied uniformly at some certain rate per 
 fanegada on all the land in the district, whether supplied with 
 water for the season or not. 
 
 Organization and Administration} 
 
 The affairs of the district are managed by three syndics who are 
 elected by manhood suffrage of the irrigating landholders, for 
 terms of one year each; each owner of an irrigated parcel of land, 
 no matter how large or how small his holding, having one vote 
 and only one. The syndics fix the income tax at certain rates per 
 fanegada (about 1.3 acre) supplied with water, and, also, have the 
 power, upon their own judgment alone, of levying extraordinary 
 taxes on all the lands in the district. These syndics appoint the 
 acequiero, or superintendent, and, in a general way, supervise his 
 duties. 
 
 The rates, ordinary and extraordinary, are payable to a re- 
 ceiver or treasurer of the district in advance^ for the season, and 
 
 ^ Same references as that for preceding subheading. 
 
430 SPANISH IRRIGA TION LE GISLA TION. 
 
 he who has not paid or cannot exhibit his receipt cannot have 
 water to irrigate with. There is no special water court, but the 
 syndics, in a measure, jointly act in that capacity. 
 
 SECTION IV. 
 
 Gbanada — District of Geanada. 
 
 The District and Water-Right} 
 
 In a large elevated valley, through which courses the river 
 Genii, surrounded by mountains, in the southeastern portion of 
 Spain, lies the famed old Moorish city of Granada, and its very 
 productive irrigated district or vega. This region is forty to fifty 
 miles inland from the Mediterranean coast, about an hundred 
 miles southwest of the irrigated district of Lorca already de- 
 scribed, and was one of the last strongholds from which the 
 Moors were driven in the fifteenth centhry. The district of 
 Granada, with the exception of that of Valencia, is, perhaps, the 
 best known of the old irrigation huertas of Spain. It enjoys a 
 reputation, indeed, which seems to be undeserved in any connec- 
 tion with irrigation. The plain is very fertile, the water supply 
 is abundant, and the irrigators are prosperous; but it is the natural 
 advantages of the place to which a satisfactory outcome is due, 
 and not the system of works or their management. 
 
 As a matter of fact, the works are all small, poorly maintained, 
 and miserably managed, and there was not at the times Aymard 
 and Moncriefif wrote, any organization of irrigation worthy of the 
 name, and it does not appear from Llaurado that this old order of 
 things has since been changed. In fact, Granada is one of the 
 few places in southern Spain where there have been no modern 
 reforms in irrigation organization and administration, a place 
 where the chaotic state which succeeded the expulsion of the 
 Moors has been borne with until custom has sanctioned and the 
 people have adapted themselves to a most irregular and imme- 
 thodical administration of water-right and irrigation matters. 
 
 We find here both systems of holding water, which have been 
 repeatedly noticed in former pages: ownership of water-rights in 
 severalty, and ownership of water privileges as appurtenances to 
 
 1 See, Aymard, pp. 264-2G8; also, Llaurado, pp. 487-490. 
 
LOCAL REGULATIONS— GRANADA. 431 
 
 lands. Scarcely a canal of the number can be named whose 
 waters are not held in part by one system and in part by the 
 other. The greatest apparent confusion exists, not only in the 
 water holdings themselves, but in the order of the holdings and 
 in the outcome in the customs of irrigation. Nevertheless, these 
 apparent complications have become clear enough to the irrigators 
 of Granada, and as the water supply is plentiful, they are able to 
 get along without much jarring. 
 
 Characteristic Features of the System. 
 
 Moncrieflf \'isited this region in 1868, and commences his account 
 of what he saw in the following manner: 
 
 " On the top of the highest tower of the Alhambra, commanding 
 a glorious view over the fertile plain below, stretching away to the 
 west, and of the Sierra Nevada, soaring up in majestic forms to 
 the southeast, is suspended a large bell, which is struck every 
 £ve minutes from sunset to sunrise. There is a conventional sys- 
 tem by which the peasant, counting the number of beats, knows 
 exactly the hour, and when it is time to open or close his water- 
 oourse. The bell is said to be distinctly heard throughout the 
 still night over the whole vega, or irrigated plain. The present 
 bell was placed there by the good queen Isabella after the expul- 
 sion of the Moors in 1492, but I believe it was only restoring a 
 Moorish institution of far older date. It is struck by no ordinary 
 clock machinery, as one would expect, but simply by one member 
 of the family, who lives in the tower, being always on guard, and 
 having a watch to guide him when to pull the rope. This contri- 
 vance may be taken as characteristic of the irrigation of Granada. 
 It is constant and assiduous enough, but its machinery is as sim- 
 ple as that of the bell, and dates from a period as remote." — [p. 
 118. 
 
 The district irrigated is from 45,000 to 50,000 acres in area, and 
 this is served with waters by twelve to fifteen canals and a great 
 number of smaller ditches. Water-rights to these date from the 
 earliest times of recorded knowledge of the subject; but the first 
 regulation or code of titles and rules bears date in the early part of 
 the sixteenth century, soon after the expulsion of the Moors. At 
 a somewhat later date, a book of titles to the water was compiled 
 by royal order, and that remains as the authority on such matters 
 to this day. " This work consists of a voluminous manuscript, tak- 
 ing up each canal separately, and stating the size of its headgate, 
 and the quantity of water to which each is entitled." But it does 
 not lay down any system of administration and government, pre- 
 
432 SPANISH IRRIGA TION LE GISLA TION. 
 
 scribing how these rights are to be exercised and observed. Such 
 a system was attempted, however, at a still later date in a royal 
 order, but this code has almost entirely fallen into disuse. 
 Of the system of irrigation in 1868, Moncrieff wrote : 
 
 "As far as I could learn, the system of the canals is for every 
 little community of irrigators to elect yearly a manager and four 
 deputies, who form a tribunal and settle all minor matters. The 
 manager also goes periodically to Granada, and forms one of the 
 council of sixty, headed by the two lesser alcaldes of the city, and 
 presided over by the chief municipal authority, the alcalde corre- 
 gidor, or lord mayor. Each of these local managers has a treasure 
 chest, from which he pays out all the current expenses for the year 
 for repairs, salaries, etc.; and at the year's end he presents his 
 accounts to the tribunal, who pass them and replenish the treasury 
 to the extent of the amount taken out, by a water-rate on the irri- 
 gators, which generally varies from thirty to eighty cents an acre. 
 And so by the help of the code of laws — some of them obsolete, 
 many of them not enforced — by a strong traditional custom, and 
 above all an abundance of water, irrigation goes on regularly and 
 without confusion." — [p. 122. 
 
 Something more will be said of this system and its results, in 
 chapter XXI, under the heading, "Early Irrigation Associations 
 in Spain." 
 
 Note to Chapter XVIII. 
 
 The note following chapter XVII applies also to this chapter. 
 
 AUTHORITIES FOR CHAPTER XVIII. 
 
 Aymard.— [Work cited as an authority for Chapter XVII.l See, Chapters VIII 
 XVI, XVII, XVIII, and XXI, as speciflcally cited. 
 
 Llaumdo.—lWoTk cited as an authority for Chapter XVII.l See, pp. 548-575 
 581-584, and 487-497. J • ff > 
 
 Moncrieff. —[Work cited as an authority for Chapter VII.] See, Chapter VIII. 
 
THE NEW WATER LAWS. 433 
 
 CHAPTER XIX.-SPAIN"'; 
 
 THE NEW 6ENEEAL WATEE LAWS— EIGHT OF PEOPEET.T lU 
 AND OONTEOL OP WATEE-OOHESES AND WATEE SOUEOES. 
 
 Sectiox I. — Modei-ii Spanish Water Laws and Regulations. 
 The Present Laws and Constitution. 
 Legislation prior to 1866. 
 General Law of lS6i!. and otliers to 1879. 
 General Law of 1879, and others to 1884, 
 
 Section II. — Ownoship of and Bights to Waters and IVater-Courses. 
 Eight of Property in Waters and \\'ater-Courses. 
 Bights of Water-Source Owners. 
 The Riparian Water Privilege. 
 
 Section III. — Acquired Rights to the Use and Control of Waters. 
 Private Appropriation of Public Waters. 
 Development of Subterranean AVaters. 
 Water-Eight Concessions. 
 Authorizations — Applications. 
 Protection of Prior Eights. 
 
 SECTION I. 
 
 Modern Spanish "Water Laws and Regulations. 
 
 Development of the Present Laics. 
 
 In chapter X"\"I something has been shown of the development 
 of the old general laws of Spain, of their arrangement as the Xo- 
 risima Recopilacion — the latest official general codification — and 
 of a subsequent compilation with annotations, in the form of a 
 dictionary of jurisprudence, bj- Escriche — a writer of authority — 
 before the middle of this century. At the period to which that 
 chapter referred, the general laws of waters were notablj' frag- 
 mentary and without system — ^the outcome of decrees, customs, 
 edicts, and decisions scattered through centuries and under diflfer- 
 ent governments, forms of government, and conditions, political, 
 28' 
 
434 SPANISH IRRIGA TION LEGISLA TION. 
 
 social, and physical. But they had been compiled and commented 
 upon by law writers, had thus assumed something the appearance 
 of order, and in this better form, having been recognized and re- 
 ferred to by courts and executives, came to be regarded as author- 
 ity. Furthermore, the general laws were not only imperfect, but 
 were frequently set aside by local customs and special enactments, 
 themselves conflicting. 
 
 In chapters XVII and XVIII the administrative condition of 
 the principal old irrigation regions where were in force special 
 regulations, founded on ancient rights and local customs, has been 
 sketched; and the confusion which formerly existed, with the re- 
 sults of some remodelings of later dates, under the different fun- 
 damental principles locally prevailing, has been shown. Much 
 that was good of the outcome of long practice had, at the period 
 to which these accounts apply, been formally recognized by the 
 Spanish government and embodied in new and systematized or- 
 dinances for certain great irrigation regions or districts; but the 
 general laws of Spain with respect to waters, water-courses, and 
 irrigation were still without system and far from complete. 
 
 The present chapter and the two following, will be devoted to 
 the now existing general laws relating to waters and water-courses, 
 and to an account of some circumstances attendant upon their 
 development. We will find that much of the inadequacy, uncer- 
 tainty, and confusion of the old laws and customs have been done 
 away with by excellent general laws and regulations. Spain to- 
 day possesses the most complete and concise water law system of 
 any country in the world, where irrigation is largely practiced. 
 She was slow in making a decisive step to this end, but when the 
 move came it was apparently well considered, and was certainly 
 well made. She studied her own errors and the successful issues 
 of custom and past legislation, doubtless examined the irriga- 
 tion legislative doings of, and results of administrative practice in 
 other countries, and then framed and promulgated a general law 
 of waters, covering the whole ground, in its declarations of rights 
 and principles and leading rules of governance, and directing that 
 regulations should be framed and promulgated for guidance in 
 the details of its application and observance. 
 
 This action placed Spain in advance of either France or Italy 
 in the simplicity and fullness of general water laws, for neither of 
 these countries, as we have seen, has a concise system of legis- 
 
DEVELOPMENT OF THE NEW LA WS. 435 
 
 lation in plain terms, devoted to this one subject, but the gov- 
 ernance of their waters and water-courses is subjected to laws, 
 regulations, and the interpretations thereof, scattered through civil 
 codes, penal codes, special laws and regulations, and decisions of 
 courts and administrative authorities, without number. Italy, 
 since the consolidation of its government and the promulgation of 
 its civil code, is much in advance of France in the matter of sys- 
 temization of water laws; but, even so, their principal provisions 
 are scattered through a code whose arrangement must necessarily 
 render them incomplete and lacking in unity as a water law sys- 
 tem, and consequently we find that she has since passed a num- 
 ber of laws supplementing the code provisions with respect to 
 waters and irrigation. Now, Spain had the results of this expe- 
 rience before her, doubtless, when she framed her last general law 
 of waters, and the condition of the country and the laws in gen- 
 eral were such that she could not bring a complete civil code out 
 of the chaos, so she attacked the water law problem by itself, and 
 produced a good result. 
 
 This was the work of a very few years ago, but the developments 
 which immediately led up to it commenced back in the early 
 part of the century; for the evolution of the present water laws of 
 Spain has been an accompaniment of the rise and establishment 
 of her constitutional form of government; and now, in order that 
 we may readily view the governing political conditions surround- 
 ing the steps towards the present law, I briefly sketch in outline 
 some important points in the history, from the promulgation of 
 the first Spanish constitution. 
 
 Development of the Present Constitution} 
 
 The government of Spain is a constitutional monarchy, but its 
 apparent stability as such is of but very recent dating. Constitu- 
 tional principles were advanced and crystallized into a constitution 
 in 1812, and Ferdinand swore to support it, but one of his first acts 
 was to overthrow the instrument and imprison and banish its sup- 
 porters. It was revived in 1820, but only to be again stricken 
 down and replaced by autocracy more complete. 
 
 At the death of Ferdinand in 1838, his widow, Maria Christina, 
 grasped the reins of government in the interest of her infant daugh- 
 ter, Isabella. To make friends as against the king's brother, Don 
 
 ' See, Wallis, Chap. V; also, Johnson's Encyclop. : Article, "Spain." 
 
436 SPANISH IRRIGA TION LEGISLA TION. 
 
 Carlos, the representative of the party opposed to all reform, the 
 regent Christina courted the support of the constitutionalists, and 
 promulgated a sort of constitution in 1834. But this did not sat- 
 isfy the liberals; so in 1836 the constitution of 1812 was readopted. 
 The constituent cortes immediately framed another fundamental 
 law, which was promulgated in 1837. The civil war ended in 
 1839, and with it, for the time, the pretensions of Don Carlos. 
 Christina, after a popular outbreak, fled the country in 1840, and 
 renounced the regency. Espartero, a just and enlightened man, 
 succeeded her as regent, and the progressive constitutionalists were 
 in full ascendancy. In the summer of 1843, the moderate consti- 
 tutionalists came into power, Espartero was forced to fly, the cortes 
 declared the young child, Isabella, to be of age, and acknowledged 
 her as queen. Then commenced the predominant influence of 
 Narvaez, Duke of Valencia, who from that time to the abdication 
 of Isabella in 1868 was a ruling spirit in Spain, and, as we shall 
 see, has done much for irrigation interests. 
 
 Under the ministry of Narvaez and the ascendency of the Mod- 
 erado party another constitution was adopted in 1845. But this 
 was sometimes ignored. A revolution followed. In 1868 Isabella 
 left Spain for France. A new and liberal impulse swept over the 
 country after her departure. The cortes adopted a new constitu- 
 tion in 1869, a monarchy with responsible ministers was in the 
 same year proclaimed, Serrano was made regent, and universal 
 suffrage was for Spain an accomplished fact. The following year, 
 after much negotiation. Prince Amadeus of Savoy was elected 
 king by the cortes. In 1873 great confusion prevailed, a Carlist 
 insurrection was raging, and Amadeus abdicated and left the 
 country. The cortes immediately proclaimed a republic, and, for 
 a year, this form of government prevailed in the middle and south 
 of Spain, while the monarchists under Don Carlos held possession 
 in the north. Early in 1874 the republic was set aside to reestab- 
 lish the government under the constitution of 1869, and Serrano 
 was again made regent. 
 
 At about the end of the year, Alfonso, son of Isabella, was pro- 
 claimed king. A constitutional government with a responsible 
 ministry was revived upon his taking the reins of rule in 1875, a 
 revised and advanced constitution was adopted in 1876, and con- 
 tinued to the time of his death in 1885. 
 
DE VELOPMENT OF THE NE W LA WS. 437 
 
 As we shall see in a future chapter, certain extended irrigation 
 works had been constructed, and several important moves had 
 been made in the last century, in the way of governmental encour- 
 agement of irrigation enterprise, and the construction of great 
 national canals of irrigation and other acts of advancement in the 
 field of this subject was continued in the early part of this century, 
 during the despotic rule of Ferdinand, but it was not until after 
 the partial accession of the constitutional party to power under 
 Isabella, and the promulgation of the constitution of 1845, that 
 the laws and series of royal orders were promulgated that led to 
 the general water law of 1866 — the foundation of the present sys- 
 tem — to which attention is now asked. 
 
 Legislation Prior to 1866} 
 
 The following named laws and royal orders are the chiefest of 
 those which ^vere promulgated concerning waters, water-courses, 
 and irrigations during the reign of Isabella and the ascendancy of 
 the moderate constitutional party: 
 
 Koyal order of March 14, 1846, to which the useful employment 
 of the waters of rivers must be subjected. 
 
 Royal order of August 21, 1849, reaffirming and publishing anew 
 the substance of the foregoing order concerning water utilizations. 
 
 Royal order of December 4, 1859, concerning the useful employ- 
 ment of public waters, prescribing conditions of' authorizations 
 therefor. 
 
 Royal order of April 6, 1848, ordering that the political govern- 
 ors of the provinces shall return the originals of papers concerning 
 water utilizations. 
 
 Royal decree of October 27, 1848, declaring the continued ex- 
 istence, notwithstanding the provisions of the penal code, of the 
 special irrigation courts of Valencia, Murcia, and elsewhere, and 
 defining the extent and character of their powers and duties. 
 
 Royal order of March 15, 1849, defining more at length and in 
 detail the status and duties of special irrigation courts. 
 
 Law of June 24, 1849, exempting the capital newly invested 
 in irrigation works, from taxation for ten years after completion 
 of construction, and also declaring, estabhshing, and providing 
 for the enforcement of the servitude of aqueduct, or right-of-way 
 for waters for private or individual irrigations. 
 
 ^ See, Pardo, Legislacion de Aguas; also, Memoria sobre las Obras Publicas. 
 
438 SPANISH IRRIGA TION LE GISLA TION. 
 
 Royal order of twenty-ninth of November, 1850, concerning the 
 execution of that part of the former law relating to exemption of 
 new irrigation works from taxes. 
 
 Royal order of second of September, 1852, establishing rules 
 for conducting examinations preliminary to the granting of con- 
 cessions of water privileges. 
 
 Ministerial instruction of the twentieth December, 1852, con- 
 cerning the application of that part of the law of 1849 which spe- 
 cially related to the servitude of aqueduct. 
 
 Royal order of February 13, 1854, ordering that applications for 
 water privileges shall be accompanied by all the documents con- 
 cerning the project, in duplicate, in each case. 
 
 Circular of the direction-general of February 21, 1859, prohib- 
 iting any departure from plans of projects already approved, with- 
 out due authorization. 
 
 Royal order of March 11, 1859, concerning duties of engineers 
 connected with projects for utilizing waters. 
 
 Royal order of April 5, 1859, concerning examinations prelimi- 
 nary to the granting of water privileges, and the duties of engineers 
 in the same connection. 
 
 Royal decree of April 20, 1860, dictating rules for carrying to 
 completion enterprises which have for their object the useful em- 
 ployment of waters. A lengthy and important order. 
 
 Royal order of February 28, 1861, declaring provincial authori- 
 zation to be sufficient for the execution of works of repairs or recon- 
 struction of old dams in the rivers. 
 
 Ministerial circular of December 18, 1865, dictating rules to be 
 observed in issuing authorizations for the employment of public 
 waters. 
 
 Law of the eleventh of July, 1865, relative to the disposition of 
 100,000,000 nah for the encouragement of irrigation. 
 
 Royal order of July 29, 1865, naming ten hydrological divisions, 
 to systemize the study of the water supply of Spain. 
 
 Royal order of January 14, 1866, providing the form in which 
 investigations should be held in the matters of water utilizations. 
 
 Ministerial circular of January 14, 1866, concerning administra- 
 tion and judicial powers and duties in the questions of water utili- 
 zation. 
 
 Royal decree of June 4, 1866, authorizing the formation of the 
 Iberian Irriga.tion Company, liraited. 
 
DEVELOPMENT OF THE NEW LA WS. 439 
 
 General Law of 1866, and others to 1879? 
 
 On the third of August, 1866, was promulgated a general law 
 of waters for Spain, embracing all that had found place in the 
 laws and orders just named, and in the old laws heretofore ab- 
 stracted, and very much which was new to the general laws of 
 the country — having been taken from local laws and customs of 
 some of the irrigation districts, or, possibly, from the laws of It- 
 aly or France. The new general law comprised three hundred 
 articles, and would occupy about sixty-three pages of this vol- 
 ume. It has been in its essential features and arrangement 
 reproduced in the present general law of 1879, a translation of 
 which is presented in appendix III hereto. Its framing was the 
 work of a royal commission which for eight years labored to recon- 
 cile the incongruities of the general and the clashing of the local 
 laws and customs on the subject. It is a very complete and vig- 
 orous work, but in part overloaded with details which in the newer 
 law have been left to administrative regulations. 
 
 Following the general water law of 1866 came a law of Febru- 
 ary 20, 1870, concerning canals and reservoirs of irrigation, regu- 
 lating the issue of concessions for such works, their construction 
 and management, and authorizing governmental encouragement 
 and aid to enterprises of public importance. It iftTill be noticed in 
 the succeeding chapter on governmental policy. 
 
 Interpreting these two laws, establishing regulations for their 
 application in detail, defining the duties, powers, and jurisdictions 
 of administrative officers, courts, etc., there were promulgated from 
 1866 to 1879, about one hundred and fifty decrees, royal orders, 
 ministerial orders, etc. But these, with the laws to which they 
 chiefly related, have been set aside or embodied in the general 
 law of waters, of 1879, the law of encouragement to irrigation, of 
 1883, and the decrees, orders, etc., following and relative to them, 
 of which I write under the next subheading: 
 
 The General Laiv of 1879, and others to 1884-' 
 
 The general law of waters of 1879, of which a complete trans- 
 lation is presented in appendix III, is the present law of Spain 
 on this svibject. It is arranged in five titles and fifteen chapters, 
 according to the following outline: 
 
 ' See, Pardo : Legislacion de Aquas; also, Menwria sobre las Obras Publicas. 
 ^ See, Bentab61 and t'reta, Novisima Legislacion de Aguas. 
 
440 SPANISH IRRIGA TION LEG I SLA TIOl^. 
 
 Title I—0{ the Dominion of Terrestrial Waters. 
 
 Title II— Oi Beds, Channels, Banks, Margins, Accretions, and 
 Works. 
 
 Title III— Of Servitudes on the Subject of Waters. 
 
 Tith ir—0{ the Useful Employment of Public Waters. 
 
 Title V—Ot the Administration of Public Waters. 
 
 Title I, in four chapters, treats of the ownership and control of 
 (1) rain-waters; (2) hving waters, springs, and streams; (3) stand- 
 ing waters, ponds, and lakes; and (4) subterranean waters ob- 
 tained by ordinary wells, or by artesian wells, shafts, or galleries. 
 
 Title II, in three chapters, treats of (1) the beds, or chan- 
 nels, banks, margins, and accretions of water-courses and lakes, 
 or ponds, and of floating and submerged articles of property; (2) 
 works of defense against pubHc waters; and (3) the drying of 
 swamps and raarshy lands. 
 
 Title III, in two chapters, treats of (1) the natural servitudes 
 of drainage, etc.; and (2) the legal servitudes of right-of-way for 
 water, right-of-abutment for a dam, of drawing water, and of wa- 
 tering places, of towpaths, and others inherent to riparian prop- 
 erty. 
 
 Title IV, in two chapters, treats of (1) the common utilizations 
 of public waters, such as free use for domestic, agricultural, and 
 manufacturing purposes, for fishing, and for navigation and trans- 
 portation; and (2) the special utihzations of public waters, such 
 as conceded rights to supply towns, railroads, irrigations, naviga- 
 tion canals, industrial establishments, and fish ponds. 
 
 Title V, in four chapters, treats of (1) the police or guarding of 
 public waters; (2) irrigation associations, syndicates, and special 
 courts; (3) the powers and duties of the administration; and (4) 
 the jurisdiction of the ordinary courts, in the matter of waters. 
 
 This law contains two hundred and fifty-eight articles as against 
 two hundred and seventy in the corresponding portion of the law 
 of 1866, and relates only to terrestrial waters, while the law of 
 1866 contained provisions relating, as well, to waters and shores 
 of the sea within the jurisdiction of Spain. The last law is an 
 improvement on the first named, in that it is more concise and 
 pointed, and leaves much matter relating to details of procedure, 
 etc., to be put in the administrative regulations under it. 
 
 Since the passage of the act of 1879 down to and inclusive of 
 September, 1884, there has been no change in the law on the sub- 
 
DE VELOPMENT OF THE NE W LA WS. 441 
 
 ject of waters or water-courses, and but one law passed relating to 
 irrigation, but there have been issued about 125 decrees, royal 
 orders, ministerial orders, and circulars upon these subjects. The 
 law passed is that of July 27, 1883, authorizing subsidies to be 
 awarded to those who properly carry out irrigation, canal, and 
 reservoir enterprises, and is referred to at length in a succeeding 
 chapter hereof. Of the decrees and orders mentioned, they are 
 classified under thirty-eight headings, and severally relate: nine 
 to the discovery of waters, four to drainage waters, eight to private 
 waters, three to works in river channels, five to projects, five to 
 irrigations, nine to canals and reservoirs of irrigation, thirty-seven 
 to irrigation communities, three to forfeiture of concessions, four 
 to alterations of utilizations, eleven to servitudes, and most of the 
 remainder to matters of administrative and judicial power, duty, 
 and jurisdiction under the general law. These orders and de- 
 crees embody regulations for the application of the general law in 
 detail, and many interpretations of the law itself, and other mat- 
 ters relative thereto. They compose a volume of matter which, 
 taken with the law itself and others heretofore spoken of, forms 
 the basis of the present and the following two chapters. 
 
 SECTION II. 
 
 Ownership and Rights to Waters and Water-Courses. 
 
 0/ Waters and Water-Courses. 
 
 Waters are treated in the law, according to their source and 
 condition, as, (1) fallen waters — those from rains; (2) risen wa- 
 ters — ^those of springs and other naturally rising sources; (3) run- 
 ning waters — ^those of streams and rivers; (4) standing waters — 
 those of ponds, lakes, and marshes; (5) subterranean waters — 
 those under the surface of the ground, or caused to rise thence by 
 artificial means or works of development; ('6) drainage waters- — 
 the output of sewers and drains. Waters flowing directly from 
 the effect of rains are not regarded as flowing waters, even though 
 swelling the volumes of streams. Flowing waters are those which 
 impart a measurably constant volume to a current — the normal 
 flow of streams according to the season. A small stream, as dis- 
 tinguished from rain-waters flowing in a small channel, is one 
 
442 SPANISH IRRIGA TION LEGISLA TION. 
 
 which is fed by springs or general gathering grounds, and has a 
 flow in dry as well as wet weather, even though it be not continu- 
 ous the year round. 
 
 Right of Property in Waters} 
 
 Rain-Waters. — For the purposes of the law, the waters which 
 flow away or collect immediately from rains are regarded as rain- 
 waters. These belong to the owner of the .property, whether a 
 private individual, the state, a municipality, or a province, upon 
 which they fall and while they run through it; but so soon as they 
 flow beyond such property, into a channel wherein other waters 
 flow, they become public — a part of the public domain. 
 
 The owner of a property, whether a private individual, a mu- 
 nicipal or other body, may freely construct within his lands, any 
 work for the storage, conservation, or utilization of the rain-waters 
 which fall on such property. Rain-waters which fall on the pub- 
 lic domain or on municipal lands, are controlled by the munici- 
 pality within whose jurisdiction the lands are, but an appeal may 
 be taken to the governor of the province in matters pertaining to 
 them. — [Articles 1-3. 
 
 Springs and Sources. — As waters which fall on the surface of a 
 private or other property belong to the owner thereof, so those 
 which rise to the surface, from substrata, within such estate are 
 the property of its owner just as much as the estate itself. It 
 matters not whether the spring or rising water is continuous or 
 intermittent in its flow, so long as the owner usefully employs the 
 water and does not, by his neglect, suffer others to acquire a right 
 to its use by their employment of it, he owns it in complete prop- 
 ertyship while it flows through his lands. — [Articles 4 and 5. 
 
 Rivers and Streams. — All running waters, except those on the 
 private lands of their rising or falling, are public. Article 4 of the 
 law of 1879 is as follows: 
 
 "There are public, or of the public domain: 
 
 ******** 
 "Second — The waters of continuous or intermittent springs and 
 small streams which flow in their natural channels. 
 "T/itrd— The rivers." 
 
 See, Bentabfil and Ureta, Kovisima Legislation de Aguas. 
 The articles herein cited by number are those of the general water law of 1879, 
 as tound m the above named worlc and translated for appendix III, hereto. 
 All other orders, circulars, etc., referred to, are found in the work named 
 
RIGHT OF PROPERTY IN WATERS. 443 
 
 Thus, waters of springs and small streams, whether in beds on 
 and of private property or not, are public waters, if flowing in nat- 
 ural channels not on the private lands where they have fallen or 
 risen, and the waters of rivers are always public. 
 
 The law is silent on the point of the ownership of such waters 
 when diverted into artificial channels, but subsequent administra- 
 tive rulings declare that public waters become private property 
 only when used, and are not private property when simply turned 
 into a private channel. 
 
 Bead and Stagnant Waters. — Having treated of fallen waters, 
 risen waters, and running waters, the law thus speaks of stand- 
 ing waters: 
 
 "Lakes and marshes formed by nature and covering public 
 lands are of the public domain. Lakes, marshes, and ponds 
 formed on the lands of their respective estates, belong to private 
 indi-\dduals, to the municipalities, to the provinces, and to the 
 State. Those situated on lands of common profit belong to the 
 respective towns." — [Art. 17. 
 
 Subterranean Waters. — Waters in strata or streams beneath the 
 surface of the ground, belong to the owner of the ground when he 
 shall have secured them for use, but before development, they are 
 of that class of things which belong to no one in particular, and, 
 consequently, to the public. 
 
 Town Drainage Waters. — Sewage, or town drainage waters, be- 
 long to the town or municipality where formed or collected, and 
 are under its full control; but this may be lost, as will be seen 
 under the next subheading. — [Art. 13. 
 
 Ownership of Water Channels} 
 
 Rainwater Channels. — The natural bed or channel of an inter- 
 mittent stream formed by rain-waters, is the land which these 
 cover during their ordinary floods in the deep or shallow washes 
 through which they pass. These channels belong to the owner of 
 the property in which they are situated. Each town and pueblo 
 controls them, within the region of its municipal jurisdiction, when 
 on public, provincial, or municipal lands, and may issue permits 
 for constructions therein. Private ownership of such channels 
 does not justify the making of works or plantations in them, such 
 
 ' See note to the preceding subheading. 
 
444 SPANISH IRRIGA TION LE GJSLA TION. 
 
 as might change the course of the waters to the injury of other par- 
 ties, or whose destruction might result in injury to other works or 
 structures below. — [Articles 3, 28-31. 
 
 Small Stream Channels— The natural bed or channel of a small 
 stream, is the land which its waters cover in their greatest ordi- 
 nary floods. The beds of small streams belong to the owners of 
 the cultivated grounds or lands through which they course, and 
 hence are public or private as the lands happen to be in public or 
 private ownership. The municipalities, provinces, or even the state 
 may exercise control over the public channels of small streams, 
 and in a measure, as will be seen hereafter, those in private own- 
 ership as well, are subject to administrative supervision. The 
 private ownership of small stream beds is subjected to the restric- 
 tions already spoken of as imposed upon the ownership of rain- 
 water channels. — [Articles 32, 33. 
 
 River Channels. — The natural channel of a river is the land 
 which its waters cover in the greatest ordinary floods. This in- 
 cludes the bed and the banks; the latter being the borders of the 
 channels included between the plane or edge of the lowest waters 
 and that of the floods. The lands contiguous to the banks of a 
 river are termed its margins. The beds of all rivers belong to the 
 public domain. The banks of all rivers, except in local cases 
 where ancient law, custom, or special title has arranged to the 
 contrary, also form part of the public domain. In all cases the 
 banks of rivers and the margins to a certain extent are subject to 
 public iise for convenience of navigation and fishing. — [Articles 
 32-36. 
 
 The use of a bed of a river will not be conceded for any purpose 
 that may interfere with the flow of its waters in the smallest dam- 
 aging degree; nor will any part of a river bed on public territory 
 be sold; nor yet will public lands be sold bordering a river, until 
 the channel shall have been surveyed and determined upon.^ 
 
 Lakes, Marshes, and Ponds. — The bed or bottom of lakes, marshes, 
 or ponds, is the land which the waters occupy at their greatest 
 ordinary height. These may be the property of the state, of a 
 province, or of a municipality, or, by special title, of a private 
 individual or grantee, without respect to the ownership of the ad- 
 
 ' Royal Orders, August 4, 1879, Ajjril 3, 1880, and August 16, 1880. 
 
OWNERSHIP OF CHANNELS. 445 
 
 jacent or bordering properties. When not thus separately held, 
 they belong to the owners of the contiguous lands. The beds of 
 all navigable lakes belong to the public, and even when in pri- 
 vate ownership their shores are subject to public use, within cer- 
 tain limits, for purposes of navigation, etc. — [Articles 37-39. 
 
 Rights of Water-Source Owners.' 
 
 The ownership of a water-source gives the proprietor most abso- 
 lute control over its waters. He may use them at will upon his 
 property, as abundantly and for whatever purpose he chooses, pro- 
 vided that he does not thereby injure others, and that he does not 
 interfere with acquired uses of the waters below. As such rights 
 can be obtained, against his desired or sufficient utilization, only 
 through his negligence, permission, or formal grant, he is prima- 
 rily in absolute dominion of his waters. By the passage of the 
 law of 1866, the owners of water-sources were given twenty years 
 in which to utilize their waters, after which, it was declared these 
 should be subject to use by riparian owners below, and that they 
 could acquire a right to them by one year's utilization. Article 
 11 of the law of 1879 is as follows: 
 
 "If, after twenty years, counting from the day of the promul- 
 gation of the law of 1866, the owner of a property where waters 
 rise naturally should not have used them, wasting them wholly 
 or partially in any manner whatever, he shall lose all right to 
 interrupt those using or applying the same waters lower down, 
 who for the period of a year and a day consecutively may have 
 used them." 
 
 At all times the surplus over and above the amount of his em- 
 ployment, and the drainage or residue from his utilizations, is 
 subject to use below, as against any claim of right by a source 
 owner, but when he has used any fixed or known quantity of water, 
 it being only part of the normal flow of the same, in seasons of 
 scarcity or drought, he may use all, up to his full amount required, 
 and the loss will be that of the utihzers below.^[Art. 10.] Waters 
 not used and waters draining off from irrigations on the property 
 of a water-source must be turned into their natural channel at its 
 point of departure from the estate, unless these can be conducted 
 to it or utilized on riparian lands below, by the route of the canals 
 or ditches in which they run. — [Art. 9. 
 
 ' See note to the preceding subheading. 
 
446 SPANISH IRRIGA TION LEGISLA TION. 
 
 The following is the syllabus of a very recent administrative- 
 decision on the foregoing points: 
 
 " The law does not estaWish any limit to the utiHzation of pri- 
 vate waters by the proprietor, for on him it imposes no other obH- 
 gation than that of permitting the waters which he does not use 
 to flow directly through their natural and accustomed channel, 
 according to the tenor of article 9 of the law in force.'" 
 
 Before the expiration of th'e twenty years from the passage of 
 the law of 1866, the owner of a water-source can claim his right to 
 the waters, unless these have been utihzed by riparian proprietors 
 below for a period of twenty years.— [Art. 8.] But although the 
 owner of a water-source may lose his right to consume the waters 
 in irrigation or otherwise, he always retains a right to employ 
 them, without appreciable waste, in the movement of machinery. 
 
 —[Art. 14. 
 
 The Riparian Water Privilegei- 
 
 As we have now seen, with the exception of waters which fall as 
 rain on a private property, rise as from a spring on such property, 
 rest as in a lake or pond on such property, or are artificially brought 
 to the surface as by an artesian well, or stored in a reservoir, are 
 public waters. Even rain-waters, when they have run ofif from the 
 private tract where they have fallen, and the waters of springs 
 escaping from the land of their rising, immediately become pub- 
 lic; so that the waters of all rivers and small streams in their 
 natural channels, whether on private property or not, and of all 
 springs and rains flowing in such natural channels, provided 
 these are not on the tract of their rising or falling, are public wa- 
 ters: in other words, under the Spanish law, there can be no such 
 thing as a private stream flowing from one property to another, 
 and so on through others, nor even flowing on the bounding line 
 between two properties. 
 
 The bed of such a stream may belong to the owners of the bank 
 lands, but its waters and the stream as a whole, are public, and 
 the riparian proprietors have no right of control over them. There 
 is no such thing as a riparian right to a stream — to have its waters 
 undiminished in quantity, or even to have them flow at all, be- 
 cause of a right to the stream — and a lower riparian proprietor has 
 absolutely no rights as against the necessities of those higher on 
 
 ' Royal Order, Janunrv 5, 1883. 
 
 ^ See note to the preceding subheading. 
 
THE RIPARIAN PRIVILEGE. 447 
 
 the stream, unless he has acquired, by an useful employment of 
 the waters, a priority of privilege, and subject also to certain clas- 
 sifications of estates and of water utilizations which fix an order of 
 preference in each line. 
 
 But, under Spanish laws, although there is no riparian right of 
 control over streams, riparian proprietors have, subject to the rights 
 of owners of water sources, certain preferred privileges to utilize 
 the waters of water-courses. Let us see exactly what' these privi- 
 leges are. 
 
 T]he Waters of Springs and Small Streams. — After having passed 
 out of the property where they rise, the waters of springs and 
 small streams which enter naturally to run through or contigu- 
 ous to other properties in private ownership, either before coming 
 to public channels or after having run through such, become sub- 
 ject to a riparian right of use. The riparian proprietors may, each 
 in his turn, acquire a definite right to usefully employ them. — 
 [Article 5.] An order of preference for thus profiting by riparian 
 ownership is established by the law: First, the properties through 
 which the waters flow — that is, those properties in one tract and 
 ownership on both banks — have, successively, in the order of their 
 situation from the head of the stream, the option to take and use 
 the waters necessary for their irrigation; and, Second, the proper- 
 ties fronting on or contiguous to the channel, in their order and 
 turn, commencing again at the one highest on the stream, have 
 the option to make good a right by using the waters in irrigation. 
 —[Article 7. 
 
 The right is not, however, with any of these properties, a con- 
 tinuous one; it is simply a first, second, or third, etc., as the case 
 may be, choice, or option, to take and utilize the waters, and must 
 be availed of within a year, else it may be forestalled by greater 
 promptness in use by some lower proprietor; for the law says: 
 
 "It is understood that those lower and bordering properties 
 which shall have anticipated the utilization by a year and a day, 
 cannot be deprived of it by another, although it may be found 
 situated higher up on the course of the water; and that no casual 
 employment can interrupt or attack rights- previously acquired 
 over the same waters in a lower district." — [Articles 7 and 10. 
 
 The law makes quite a distinction in its wording between the 
 privilege which it extends and the right which may be acquired 
 by a proper avaiUng of that privilege. For, whereas, the priv- 
 
448 SPANISH IRRIGA TION LEGISLA TION. 
 
 ilege is one of fortuitous or casual use, which miast be kept 
 constantly alive by compliance with terms of law, and may be 
 "strengthened by uninterrupted use," "the right to usefully em- 
 ploy indefinitely the waters of springs and streams is acquired by 
 the owners of lower lands, and, in their order, of those contiguous 
 to the channel, when they utilize them without interruption for the 
 term of twenty years." — [Articles 5, 8, and 10. 
 
 Thus, we observe that this riparian water privilege is not a con- 
 tinuous servitude inherent to all bank lands alike, but it is a pre- 
 ferred privilege of riparian land owners, to make good a claim to 
 waters, graded through in the order of situation of the properties. 
 It is an option to acquire a right to waters, conferred by law on 
 owners of riparian lands, and not a natural water-right inherent 
 to riparian property. The right to water to be had under it is an 
 acquired right and not a natural right: it is not a riparian right as 
 known to either the French civil law or the English common law. 
 
 There is no limit of amount placed on those who have the priority 
 of choice, except the limit of economical employment of the waters, 
 and that referred to in article 6 and hereafter to be spoken of; but 
 there is the limitation in time, on the privilege of choice, to one year. 
 Taking, for instance, a stream upon which no waters have been util- 
 ized, upper proprietors, in the order already explained, would have 
 priority of privilege to construct works and divert waters in irriga- 
 tion. As against those below in the scale of privilege, any one of 
 these might, if his land demanded the water, and if not restrained 
 by the administration, use it all in irrigation; but if he should 
 neglect to make good his privilege by economical use, and should 
 permit some other below him to usefully employ the water for a 
 year and a day, then this employer cannot be disturbed in his 
 use of it, so long as he continues to make the useful application. 
 
 But as a condition to this apparent freedom of taking comes a 
 restriction on the construction of works and on the diversion of 
 waters when the amount to be derived exceeds a certain very 
 small limit. Article 6 says: " Every casual employment of the 
 waters of springs and small streams in natural channels may be 
 fully effected by means of works by the owners of property situated 
 lower down, always provided that they do not make use of bar- 
 riers other than of earth and loose stone, and that the quantity of 
 water consumed by each one of them does not exceed ten litres 
 (0.353 cub. ft.) per second of time." Now, this amount of water is 
 
THE RIPARIAN PRIVILEGE. 449 
 
 very small; it would be carried in a stream 1 foot wide and 4^ 
 inches deep, flowing at an average rate of one foot per second — a 
 mere little trough of water, such as is used in the irrigation of a 
 garden patch. 
 
 Let us see what is the alternative. We find it in article 147, 
 which says: 
 
 "An authorization is necessary for the useful employment of 
 public waters nominally intended for undertakings of public or 
 private interest, excepting the cases clearly expressed in articles 
 6, 174, 176, 177, and 184 of the present law." 
 
 Now, we will see that the last named articles do not apply at all 
 to the case of waters of small streams and springs, which we are 
 at present considering, and to which article 6 relates; and thus 
 we have, as a result, this conclusion: Notwithstanding the privi- 
 lege or option to utilize the waters of springs and small streams, 
 which articles 5, 6, 7, and 10 refer to and confer on the bank-land 
 owners, wherever one of these has to construct in a stream a work 
 other than a barrier or dam of earth or loose stone, or desires to 
 divert more water than 0.353 cubic foot per second, he must obtain 
 a special authorization from the competent governmental author- 
 ity. 
 
 Article 33 is exphcit on the fijst part of this point. Taken in 
 connection with article 31, which it refers to as part of itself, it 
 says: 
 
 " The beds of small streams belong to the owners of the culti- 
 vated grounds and of the lands which they cross," but " the pri- 
 vate ownership of the beds does not authorize cultivations to be 
 made in them nor works to be constructed, which would change 
 the natural course of the waters, to the injury of other parties, or 
 whose destruction by the force of floods might cause damage to 
 landed properties, factories or establishments, bridges, roads, or 
 towns situated lower down.'' 
 
 The extent of the unrestricted privilege of the most favored 
 riparian proprietor upon a small stream, below the tract of the 
 water-source, therefore, is to divert and use a little more than one 
 third of a cubic foot per second, and to construct, for the purpose, 
 in the channel, a dam or barrier of earth or loose stone, which 
 would be carried out by the first freshet, and in no way would 
 affect the flood regime of the stream. Going beyond this, he 
 must obtain permission from the administration. Here comes in 
 the principle of governmental control and authorization, more 
 29' 
 
450 SPANISH IRRIGA TION LEG I SLA TION. 
 
 fully treated of under a subsequent heading; but with respect to 
 the practice as applied to proprietors on small streams, it is well 
 to close the subject here. 
 
 Should a riparian proprietor on a small stream, having, by rea- 
 son of the situation of his property, under article 7, a priority of 
 privilege to casually employ the waters, desire to use, for instance, 
 the whole stream in irrigating his land, and apply to the admin- 
 istrative authorities for permission to construct works and divert 
 waters beyond those allowed by article 6, the authorities, after 
 publication and other notification, would hold an investigation or 
 inquiry, at which all proprietors situated below would be expected 
 to hear the application and make their objections. If there ap- 
 peared no proof of prior utilizations, and no sufficient evidence of 
 intention on the part of lower proprietors to utilize waters, to the 
 extent of the right conferred by article 6, within a year, the ad- 
 ministration would allow the applicant to divert all the waters of 
 the stream for his irrigations, saving the limitations explained in 
 the two following paragraphs. 
 
 Speaking of concessions of privileges to use waters of streams, 
 article 160, after establishing a scale of preference as between 
 town supplies, railroads, irrigations, navigation canals, mills and 
 factories, etc., says: "In every case, the common employments of 
 water clearly expressed in sections one, two, and three of the for- 
 mer chapter will be preeminently respected." Now these common 
 utilizations come under the following section headings, namely: 
 (1) The employment of public waters for domestic, agricultural, 
 and manufacturing purposes; (2) the occupation of public waters 
 for fishing; (3) the utilization of public waters for navigation and 
 flotation. More definitely, these employments are the following. 
 Article 126 says: "While waters run through their natural and 
 public channels, all may use them for drinking, washing clothes, 
 vessels, and any other objects, for bathing, and watering or wash- 
 ing horses or cattle, subject to municipal police rules and regula- 
 tions." ^ Article 129 reads: "All may fish in the public channels, 
 subject to the law and police regulations," etc. Article 138 is: 
 " The navigation of rivers is entirely free," etc. 
 
 Hence, when waters are used for drinking, washing clothes, 
 
 ' The "agricultural" use, other than those above named, classed under this 
 headuig, is the watering o£ isolated plants, with water taken from canals or 
 other aqueducts, in a bucket or other vessel, and is not irrigation, which latter 
 is ranked as a special utilization and not a common employment of water.— [See, 
 Article 127 ; also, the following section and the articles therein referred to. 
 
THE RIPARIAN PRIVILEGE. 451 
 
 vessels, etc., for bathing, and watering or washing horses or cattle, 
 when they are essential to fishing, navigation, or flotation at lower 
 points, new concessions of them for irrigation will not be issued 
 by the authorities, even not to a preferred riparian proprietor. But 
 should there be a surplus in a stream over and above the amount 
 required for the common utilizations above enumerated, the ad- 
 ministration will grant the right for its employment in irrigation, 
 up to an}' amount that may be necessary, on the riparian property 
 which first in its order applies for it; subject to the privilege which 
 each has to take within a year, without authorization, an amount 
 equivalent to about the third of a cubic foot per second. 
 
 The Riparian Water Privilege — (Continued). 
 
 Rain-Waters in Xatural Channels. — Rain-waters are defined in 
 article 1 as those ''which proceed directly from rains." They 
 are those which run off as floods or freshets by and through chan- 
 nels of all descriptions, their flow terminating, except in larger 
 rivers, within a very few days after the rainfall ceases. The own- 
 ers of properties, bordering on channels of intermittent flow through 
 which rain-waters course, have the privilege to utilize them in irri- 
 gation, imder the following provisions of the law: 
 
 ''Article 176. The owners of properties contiguous to the public 
 roads can collect the rain-waters which run through them, and 
 employ these for the irrigation of their fields, in subjection to that 
 which the ordinances direct for the preservation and police of the 
 said roads. 
 
 "Article 177. The owners of property bordering on channels of 
 intermittent flow, as shallow washes, small streams, rapines, or 
 others similar of the public domain, can employ in their irrigation 
 the rain-waters which run through them, and construct for the 
 purpose, without the necessity of authorization, dikes of earth and 
 loose stone or dams either automatic or movable. 
 
 "Article 178. When these dikes or dams may produce inun- 
 dations, or cause any other injury to the public, the alcalde, offi- 
 cially, or at the request of others, the danger being proved, will 
 order that those who constructed them shall modify them as much 
 as may be necessary to remove all fear, or, should it be necessary, 
 that they destroy them. If they threaten to cause injury to pri- 
 vate persons, the latter may appeal at once to the local authority; 
 and if the injury is realized, they shall have their rights examined 
 into promptly before courts of justice. 
 
 "Article 180. The provisions of the preceding articles, relating 
 to rain-waters, is applicable to intermittent springs, which flow 
 only in times of abundant rains." 
 
452 SPANISH IRRIGA TION LE GISLA TION. 
 
 We here find a very much restricted privilege. In the first place, 
 only the rain-waters, and those of intermittent springs, which run 
 along public roads or in small channels of intermittent flow, are 
 subject to utilization by the owners of adjoining property. Rain- 
 waters in any stream which flows a considerable part of the year 
 without stopping, are not subject to such use without special au- 
 thorization. The restriction on the liberty of maintaining works, 
 even in such channels as rain-waters may be freely diverted from, 
 is a decided one, and such as to prompt any one contemplating the 
 construction of a permanent work for the purpose, to secure an au- 
 thorization for it. Thus, even for the diversion of rain-waters from 
 streams of intermittent flow, by a permanent work, an authoriza- 
 tion is necessary to secure the builder a well grounded right to 
 maintain his work. Indeed, article 181 is explicit on this point, 
 in the following words: "When it is designed to construct dams, 
 or weirs, of a permanent character, in order to employ for irriga- 
 tion the rain-waters, or the intermittent springs which run through 
 public channels, the authorization of the governor of the province 
 will be necessary, after due formality." 
 
 As to the term during which it is necessary to use rain-waters 
 in order to prevent others above from taking them, we find article 
 179 in point, as follows: "Those who during twenty years should 
 have employed for the irrigation of their lands the rain-waters 
 which flow through a shallow wash, ravine, or other similar chan- 
 nel of the public domain, can object to the owners of properties 
 higher up depriving them of this advantage. But if they should 
 have employed only a part of the water, they cannot prevent oth- 
 ers from using the remainder, provided that the flow for the quan- 
 tity which they have for a long time employed remains free." 
 
 In contrast with most other provisions of this law, the above 
 article is very ambiguous. It would appear that use for a year 
 and a day, and continued use thereafter, is not, as it is in cases 
 of use of waters of per'ennial streams, sufficient to prevent others 
 above from taking the rain-water supply used by a lower riparian 
 proprietor, but that the use must be for twenty years. And it 
 would also appear that use " for a long time " is sufficient to pre- 
 vent interference by superior proprietors, when a part only of the 
 waters have been employed. 
 
THE RIPARIAN PRIVIIEGE. 453 
 
 The Riparian Water Pnvilege — (CoDtinued). 
 
 The Waters of Navigable Rivers. — The extent of the riparian priv- 
 ilege to divert or take waters from a navigable stream is set forth 
 in article 184, to the eifect that the proprietors of bank lands may 
 freely establish pumps, or any other machine intended to draw 
 waters necessary for the irrigation of their bordering properties, 
 provided that they do not cause injuries to navigation and that 
 they do not use steam as a motive power. These conditions being 
 violated, or their ^-iolation contemplated, an official authorization 
 is necessary. 
 
 SECTION III. 
 
 Acquired Rights to the Use and Control of "\"\"atebs. 
 
 Prirnte Appropriation of Public Waters} 
 
 Having considered the subject of the riparian water priA-ilege, 
 we are now to examine the Spanish law, to see what right of ap- 
 propriation of public waters it extends to all landholders and the 
 pubHc generally, and what privileges of utihzation these can ac- 
 quire by governmental concession. Title IV treats of the useful 
 emplo3rment of public waters, and under this general heading are 
 two chapters, namely : X, " Of common utilizations of public wa- 
 ters," and XI, "Of special utilizations of public waters." As we 
 have already seen, article 160 accords precedence in every case to 
 the common utilizations of waters: these being for drinking, wash- 
 ing clothes, vessels, and any other objects, bathing and watering 
 horses and cattle, fishing, navigation, and flotation. Articles 126, 
 129, and 138 say that while waters run in their natural and public 
 channels all persons may use them for these purposes, subject to 
 municipal police rules. This is an authorization of appropriation 
 for these purposes, and where such appropriation or necessity exists 
 the administration prevents any diversion above, which will inter- 
 fere therewith. 
 
 As we have seen, article 6 accords, and articles 5, 7, and 10 
 refer to the pri^dlege of taking accorded to riparian proprietors on 
 small streams, article 174 authorizes railways to take water which 
 
 ' See note to first subhead of preceding section. 
 
454 SPANISH IRRIGA TION LEGISLA TION. 
 
 is attached to lands condemned or purchased by them, articles 
 176 and 177 relate to the taking of rain-waters by riparian pro- 
 prietors, and article 184 accords a limited privilege of water 
 utilization to the owners of bank lands on navigable rivers. Ke- 
 ferring to these Cases, as the only exceptions, article 147 says that 
 " an authorization is necessary for the useful employment of pub- 
 lic waters, nominally intended for undertakings of public or pri- 
 vate interest." With the exception, therefore, of the privileges 
 referring to common utilizations, there is no right of appropriation 
 of public waters, whatever, accorded to the public by the present 
 Spanish law. 
 
 The wording of the law itself appears to have been most care- 
 fully made to convey an exact meaning on this point. There are 
 four verbs employed, in speaking of the taking of waters under the 
 provisions of the law, and of the rights acquired thereby, as fol- 
 lows: aprovechar, to apply to a useful purpose, to profit by, to use- 
 fully employ; utilizar, to utilize; usar, to use; and apropiar, to 
 appropriate. Usar or its derivations appears frequently, utilizar 
 quite frequently, and aprovechar is employed the greater number 
 of times; while apropiar finds place but twice in the entire law, 
 namely, once in article 23 where the owner of land is given 
 authority to search for and " appropriate," by means of artesian 
 wells, etc., the waters which may be in the ground under his 
 property; and once in article 86, in speaking of waters which 
 might be absorbed from lands by constructing a new canal 
 through the property. 
 
 Under this Spanish law, then, a land owner may " appropriate " 
 " artificial " or " discovered " waters, or those which he has discov- 
 ered and brought to the surface of the ground by artificial works, 
 and he is prohibited from constructing a canal through another's 
 property so as to drain the waters out of it which are already " ap- 
 propriated" — that is, actually made part of the property — ^by the 
 owner of the land, but he is nowhere given authority to " appropri- 
 ate " public waters, either with or without an authorization. He 
 may "usefully employ," "use," or "utilize" these, under the law; 
 and when he takes them without a special permit, the purpose 
 of the taking must come under the heading of a " common util- 
 ization," and be made in a bucket or other vessel, or else he must 
 be a riparian proprietor and take to the very limited amount, or 
 by the circumscribed means elsewhere mentioned; and however 
 he takes without special permit, the object must be in good faith 
 
ACQUIRED RIGHTS TO WATERS. 455 
 
 for use on his own land, or by himself or family, or in his own 
 individual occupation, and not for sale, distribution, or rental. 
 
 The noun used is uniformly aprovechamiento, an "useful em- 
 ployment," derived from aprovecfiar, and not from apropiar, to 
 appropriate. "An appropriation" of waters is not mentioned in the 
 present general law, or in any other which has been examined. 
 
 The difference is in this, namely: that a mere taking of waters 
 does not constitute an act conferring or bettering a right, under 
 the Spanish law; and the privilege of taking waters is accorded 
 only in the restricted number of cases, for the purposes, and in the 
 Umited amounts, referred to and explained above, and under the 
 preceding subheading. As will be seen under the following head- 
 lines, even where authorizations are issued, the privilege is not for 
 a taking of water, but a defined useful employment of it, with re- 
 strictions of a stringent character, and under pain of forfeiture if 
 these be not complied with. 
 
 Development of Subterranean Waters} 
 
 Ordinary Well Waters. — There is no declaration in the Spanish 
 general water law to the effect that waters beneath the surface of 
 lands primarily belong to the property owner. On the contrary, 
 the subject of subterranean waters is treated apparently upon the 
 principle that waters thus situated belong to no one until devel- 
 oped — or a right to them is acquired. Thus, article 18 says: " Sub- 
 terranean waters belong to the owner of a property in full proprie- 
 torship, who shall have obtained them on it, by means of ordinary 
 wells." And article 19 continues: "All proprietors may freely 
 open ordinary wells to raise water within their own properties, 
 though a diminution of the waters of their neighbors result from 
 them." True, this last article concludes by saying that " a dis- 
 tance of two metres between well and well within the towns must 
 be preserved, and fifteen metres in the country." But this restric- 
 tion is a mere police measure, designed to regulate the private 
 drawing upon a property which, belonging to no one, is the ward 
 of the nation. The water becomes the property of the land owner 
 only when it stand's in the well he has excavated. In other 
 words, he does not own it primarily because of its being under, 
 and thus part of his property, but he acquires a right to so much 
 as he obtains by his work of development. The ordinary wells 
 
 ^ See note to first subhead of preceding section. 
 
456 SPANISH IRRIGA TION LEGISLA TION. 
 
 which the property owner may thus freely sink, are defined in 
 the law as "those which are opened with the exclusive object of 
 accommodating domestic use or the ordinary necessities of life, 
 and those which in the extraction of the water do not employ on 
 the apparatus any other motor than manual labor." It would 
 appear from this that all others came under the head of draw 
 wells or of artesian wells, which are next written of. 
 
 Further than this, article 21 treats of the development of sub- 
 surface waters on public lands, as follows: "The authorization 
 to open ordinary wells or draw-wells, on public lands, shall be 
 granted by the administrative authority, in whose charge is found 
 the management and police of the land. He who shall obtain 
 it, shall acquire full ownership of the waters he may find." We" 
 notice here that the authorization is for the opening of the well, 
 and the right is acquired by the finding of the water, independent 
 of any right to lands over it. The ordinary wells spoken of in this 
 paragraph are the same as those referred to in that preceding, and 
 the draw-wells are ordinary wells whence water is drawn by power 
 machinery. 
 
 Artesian Waters. — There is more restraint placed upon liberty 
 of development of artesian waters than on that of subsoil waters 
 by ordinary wells, as the following article shows: 
 
 " The owner of any land may search for and fully appropriate 
 by means of artesian wells, or by shafts or galleries, the waters 
 which exist under the surface of his property, provided he does 
 not divert or remove public or private waters from their natural 
 course. When, in consequence of an artesian well, shaft, or gal- 
 lery, a result is threatened which will divert or diminish the pub- 
 lic or private waters due to a public service, or to a preexisting 
 private employment by rights legitimately acquired, the mayor, 
 officially, on the motion of the municipal council in the first case, 
 or by means of information from those interested, in the second 
 case, can suspend the works. The decision of the mayor shall be 
 final, if not opposed within the legal term before the governor of 
 the province, who shall then dictate the decision that goes out, 
 previously hearing those interested, and statements and opinions 
 of experts." — [Article 23. 
 
 We observe here that, whereas, in the case of ordinary wells the 
 police clause of the law requires only certain distances to be ob- 
 served between well and well, and disregards consequences to the 
 water supply of others, similarly obtained, in this case of artesian 
 wells, shafts, and galleries, a right can be acquired only to waters 
 
ACQUIRED RIGHTS TO WATERS. 457 
 
 which have not been previously developed or utilized. If, by the 
 construction of an artesian well, shaft, or gallery, the artesian or 
 other water supply which has been properly utilized, by a private 
 individual, association, or public work, is threatened with diminu- 
 tion, the administrative authority will suspend the work. The 
 opening of artesian wells on one's own property, therefore, is not 
 free: by this means the owner of a property may draw on the 
 stock of waters beneath the surface, only in so far as he does not 
 interfere with those who have preceded him. He does not own 
 the waters till he gets them; and he must not take those which 
 other people have acquired a right to. 
 
 The owner of lands, however, although he does not own the wa- 
 ters under them, has complete control over them, and no works 
 of exploration can be conducted or authorized upon them, even 
 by the government, without his consent, or unless his property be 
 condemned for purposes of public utility, and paid for according 
 to law.^ 
 
 When a land owner or other person duly authorized does obtain 
 an artesian flow without interference with other rights, natural or 
 acquired, he owns the water of his well. Article 22 is as follows: 
 
 "When the development of artesian waters is sought by means 
 of artesian wells, or by shafts or galleries, he who finds them, and 
 causes them to rise to the surface of the earth, shall be the owner 
 of them forever, without losing his right though they run away 
 from the property where they are discovered, whatever may be the 
 direction which the discoverer wishes to give them while he main- 
 tains their control." 
 
 Thus, unlike the case of waters which rise naturally on a prop- 
 erty, the owner of waters caused to rise artificially may lead them 
 off on to another property of his own or may sell them to others for 
 their use. 
 
 Notwithstanding this complete ownership of artesian waters, 
 their possessor must utilize them, or cause others so to do, else by 
 his negligence he lose his control of them, for the last quoted arti- 
 cle thus continues: 
 
 " Should the owner of the discovered waters not construct a 
 channel to conduct them through the lower properties which they 
 might cross, then the owners of these properties shall commence 
 to enjoy the casual rights which are conferred by articles 5 and 10 
 in relation to natural upper springs, and the final right which 
 
 1 Royal Orders, July 11, 1877, and October 8, 1879. 
 
458 SPANISH IRRIGA TION LEGISLA TION. 
 
 article 10 establishes, with the limitations fixed in articles 7 and 
 14." 
 
 In other words, the waters become subject to the accorded priv- 
 ilege of riparian proprietors, the same as waters which have not 
 been developed by artificial works, and rights to them may be 
 perfected by utilizing them as already explained in the second 
 section of this chapter. The owner of an artesian well cannot un- 
 derdrain or draw away the water from another's well, and he can- 
 not retain the control of his water unless he usefully employs it. 
 
 But beyond the provision which protects absolutely a developed 
 artesian flow or other utilized supply from being underdrained by 
 newer artesian wells or excavations, we find, also, a clause which 
 limits the distance from others, within which new wells, excava- 
 tions, or works may be executed. Article 24 is worded as follows: 
 
 " The works of development treated of in the preceding article 
 shall not be executed within a less distance than 40 metres of an- 
 other's house, nor of a railroad or high road, nor at a less distance 
 than 100 metres from any other exploration or fountain, riyer, 
 canal, ditch, or public watering place, without the proper permis- 
 sion of the owners, or, in their case, of the municipal council, be- 
 fore the formation of the final project." 
 
 Thus, even though the administrative authorities may grant per- 
 mission, the law expressly prohibits one land owner from sinking 
 an artesian well within 100 metres of the well or other water de- 
 velopment of another land owner, without the permission of he 
 who has already developed a flow. 
 
 We have noticed that in the case of ordinary wells on public 
 lands, the right simply to sink them is conferred by the authori- 
 ties; but we will now see that for the sinking of wells or other 
 works for the development of artesian waters on the public do- 
 main, a grant of land is made. Article 25 is to the following 
 efiect: 
 
 " Concessions of lands of the public domain, for the purpose of 
 exploring for subterranean waters by means of shafts, galleries, 
 or artesian wells, may be granted by the administration, always' 
 taking care of everjdihing relating to the control, the limitation of 
 propertyship, and the usefi;il employment of the waters discovered, 
 subject to that which the present law prescribes in respect to these 
 particulars. Lands of the public domain can only be granted for 
 these subterranean explorations, whose surface or soil has not been 
 granted for a different purpose, unless that both may be compati- 
 ble." 
 
ACQUIRED RIGHTS TO WATERS. 459 
 
 The law then directs that there shall be an administrative reg- 
 ulation promulgated which will specify the details of its applica- 
 tion; and, hence, we find the royal order to this point, which is 
 made an affix to appendix III of this volume. 
 
 Waters flowing in substrata of River Channels. — The waters flow- 
 ing in the substrata of river beds are public, and concessions may 
 be granted for their discovery and utilization (Art. 192), but even 
 threatened or possible damage to existing utilizations may be a 
 cause why such applications should be refused, or the concessions 
 annulled after being granted.^ Some illustration of this point is 
 given in the next section, and under the head of Protection to 
 Prior Rights. 
 
 Water-Right Concessions.'' 
 
 In all cases other than those of source ownership and of ripa- 
 rian privilege, and of the common utilizations already commented 
 upon, a special authorization from government is necessary in or- 
 der to acquire the privilege of diverting waters from a natural 
 stream. Utilizations under such concessions or permits are called 
 special utilizations of public waters, as distinguished from the com- 
 mon utilizations, and are authorized for the supply of populations 
 and railways, for irrigation and canals of navigation, for industrial 
 uses and the establishment of fish ponds and breeding places, but 
 they will be written of here only as applicable to irrigation. — [Ar- 
 ticle 147. 
 
 Practically, for all irrigation enterprises with public waters, 
 other than the watering of gardens or small fields by riparian 
 proprietors, an administrative concession of a water privilege is 
 necessary. There is, as already explained, no such thing as free 
 appropriation of waters, nor is there any possibility of constructing 
 a permanent dam or headwork in a stream, except by special 
 administrative sanction. 
 
 It appears that this prohibition has not always been strictly 
 observed, for it became necessary but three years ago to issue the 
 following royal order: 
 
 "In view of the fact that works are frequently made in public 
 rivers and small streams without seeking and obtaining the proper 
 authorization, his majesty, the king, desiring to avoid the difficul- 
 
 Administratiye deoisioB ; Royal Decree, July 2, 1882. 
 See note to first subhead of preceding section. 
 
460 SPANISH IRRIGA TION LEGISLA TION. 
 
 ties which will be brought about in the future, directs the govern- 
 ors of all the provinces that they issue strict orders to the mayors, 
 not to permit in an}' public drain or stream, w.ater utilizations of 
 any kind, which are not legally authorized, nor any alterations in 
 those existing, for which permission has not been solicited; direct- 
 ing that the chief provincial engineers, by means of their assist- 
 ants, exercise the proper vigilance and report to the governors all 
 transgressions which they observe.'- 
 
 All running waters in their natural channels are of the public 
 domain, and subject to the supervising care of governmental, pro- 
 vincial, or municipal authorities. A stream may be wholly within, 
 or dedicated by ancient governmental grant or custom to utiliza- 
 tion on some certain municipal lands of common profit or occupa- 
 tion, and its waters be, by custom or local regulation, thus opened 
 to appropriation and use by the people of the town, on lands 
 within the municipal jurisdiction; but the general law makes, no 
 provision for private appropriation or utilization, except by special 
 grant or concession, or for otherwise acquiring a water-right, ex- 
 cept by use without opposition from the authorities or other parties 
 for the space of twenty years.^[ Article 149. 
 
 By a provision o^ the law of August 3, 1866, all persons who 
 then had definite and recognized claims to the waters of a river or 
 stream, were given twenty years from that date in which to fully 
 apply them, and it was declared that, if at the expiration of that 
 term such employment was not complete, the right, to the unused 
 surplus should lapse. In the meantime, in all cases when, as here- 
 after explained, a public inquiry, preliminary to the granting of a 
 concession which might conflict with such right, is to be held, the 
 claimant of the old right is obliged to prove a proper foundation 
 for his pretensions. Not fully utilizing his waters claimed, he is 
 presumed to have no right to them until he proves it as resting 
 upon some ancient title or unconditional grant, and, even this 
 proven, if not utilized within the twenty years, his claim becomes 
 forfeited. — [Article 148. 
 
 Concessions for. the useful employment of public waters, are 
 granted by the municipalities, by the governors of provinces, or 
 by the minister of public works, in the cases and according to the 
 formalities hereinafter explained. Every concession is made sub- 
 ject to such natural and acquired rights as already exist to the 
 waters, and for a term expressed in the articles of the granting 
 
 ' Eoyal Order, November 15, 1882. 
 
ACQUIRED RIGHTS TO WATERS. 461 
 
 [Art. 150] ; where are also specifically stated the nature and pur- 
 pose of the concession, the quantity of water conceded in cubic 
 metres per second, and, if intended for irrigation, the extent in 
 hectares, and location of the lands to be watered [Art. 152]; and, 
 furthermore, "waters conceded for one purpose can not be diverted 
 to another without obtaining a new privilege therefor. [Art. 153.] 
 Even when the new use may require less water than the old, the 
 change must not be made without a renewed application, investi- 
 gation, and permit, for "the conditions and circumstances of the 
 new use might raise objections which it is best to avoid." ' 
 
 Waters conceded for a use such as does not consume them — 
 as for the movement of a power machinery — do not lose their 
 public character, but are subject to the control of the administra- 
 tion after they have performed the duty for which they have been 
 granted. New concessions will always state that such waters must 
 be returned to the stream whence taken, and that the works shall 
 be such as to limit the amount of loss to a reasonably small quan- 
 tity; and in the case of old concessions, where such clause may 
 have been omitted, the administration will not permit the holder 
 of the water-right to divert the waters to another use after they 
 have performed the duty for which the right was conceded, and 
 he can not do so unless he shall have acquired the right by pre- 
 scription under the law.^ All surplus waters over and above the 
 amounts legitimately used up under a concession, are subject to 
 administrative control as public waters. A grantee has no control 
 over the waters of his concession which he can not legitimately 
 use under it.^ 
 
 A concession of water privilege will be annulled by the higher 
 administrative authorities when granted by the provincial author- 
 ities in excess of their power, or under a clause of the law not 
 properly applicable to the case. Thus, under article 218 of the 
 law, the governor of a province granted a concession of right to 
 divert water from a navigable river for the use of an industrial 
 establishment situated at a considerable distance from its banks. 
 The matter was brought to the attention of the council of state, 
 and it was decided that the article in question contemplated the 
 use of water in a way such, and only by establishments so near to 
 the stream that no appreciable waste would result, and that in the 
 
 ' Administrative decision ; Royal Order, October 27, 1882. 
 
 ^ Administrative decision ; Royal Order, March 12, 1882. 
 
 Administrative decision ; Royal Order, AprU 10, 1881. 
 
462 SPANISH IRRIGA TION LEG I SLA TION. 
 
 case submitted there was an appreciable waste in conducting the 
 water to the estabhshment and returning it to the river, as well as 
 in the use, and hence the concession should be annulled; and this 
 was done.^ 
 
 In concessions of special privileges for the employment of public 
 waters the uses to which such waters may be put are classified, 
 and preference is given to applications of a higher over those of a 
 lower class, and within each class the undertakings of the greatest 
 importance and utility, or, other things being equal, the first ap- 
 plicant, is given preference. The following is the order of classi- 
 fication: (1) the supply of towns; (2) the supply of railways; (3) 
 irrigations; (4) canals for navigation; (5) mills and factories; (6) 
 fish ponds and fish breeding places. But all of these uses are 
 subjected to and made subordinate to the common utilizations of 
 waters, spoken of under the first subheading of this section, and 
 defined in article 126. — [Article 160. 
 
 Any concession for the useful employment of wafers will be- 
 come extinct if the terms and conditions according to which it 
 is granted be not compiled with; and all water rights whether ob- 
 tained by concession or otherwise, are subject to expropriation, 
 or condemnation, on account of public utility, in favor of another 
 application of the waters, of a higher order in the scale of prefer- 
 ence already spoken of. — [Articles 158 and 161. ' 
 
 Concessions for the employment of public waters are considered 
 as including that of the public lands, if any, necessary for the con- 
 struction of works, etc. — [Article 151. 
 
 Concessions of water to land owners individually or collectively, 
 for the irrigation of their properties, are made in perpetuity; while 
 those made to associations, companies, or capitalists, to irrigate 
 the lands of others in consideration of payment therefor, are made 
 for terms not to exceed ninety-nine years, and upon condition 
 that at the expiration of the time the ownership and control of 
 the works shall pass to the owners of the lands irrigated, organ- 
 ized into an association as by the law provided. — [Article 188.] 
 But in all cases of water utilization for irrigation, navigation 
 canals, and sanitary improvements, the water falls and power, 
 factories, and industrial establishments, which shall have been 
 constructed or erected upon the canals by the grantees, shall for- 
 ever remain their property. — [Article 159. 
 
 Administrative decision ; Royal Order, November 25, 1882. 
 
ACQUIRED RIGHTS TO WATERS. 463 
 
 The extravagant or wasteful use of public water, or holding 
 water-rights without fully utilizing the water is not permitted. 
 In cases of water utilization where the amount of the claim has 
 not been fixed in a concession, the minister of public works is 
 clothed with authority to ascertain the amount of water actually 
 required and applied for the purpose, and only this quantity is 
 understood to be conceded. Furthermore, the administration will 
 cause the water user to construct such headworks and measuring 
 apparatus as will render easy the gauging of the waters, and make 
 it possible to detect at once the fact of more water being taken 
 than the right calls for. Thus, upon the passage of the general 
 law, all water claims in Spain, whose amounts were not already 
 fixed in concessions and regulated by rated headworks, were sub- 
 ject to investigation — a proving up of actual necessities and utili- 
 zations, a reconstruction and rating of headworks, if necessary — 
 and to a limitation in claim to correspond with the facts of eco- 
 nomical iise at that time. — [Article 152. 
 
 The general water law, after providing in former articles for the 
 gauging and limitation of water claims as above written, closes its 
 long section on the employment of public waters for irrigation 
 with the following: 
 
 "Article 204. For the general interest in the better employment 
 ■of waters, Ihe minister of public works shall direct what shall be 
 done for the examination of the existing rivers, with the view of 
 providing that no irrigator shall waste the water of his allotment, 
 which might be of use to others in need of it, and with that of pre- 
 venting the waters of freshets from flowing unproductively, and 
 even injuriously, away to the sea, when other districts are longing 
 -and begging for irrigation and regular applications of the water, 
 and without injuring acquired rights." 
 
 This is certainly a significant paragraph to be found in a newly 
 made and formal general law of a great country, where irrigation 
 has been in progress for centuries, and where we might have sup- 
 posed the problem of economical use and conservancy of waters 
 liad been mastered long ago. In this connection the words of a 
 recent administrative decision on this point are worthy of transla- 
 tion. They are: 
 
 "The spirit of all the legislation for waters, before and since the 
 law of August 3, 1866, is that the greatest possible protection and 
 ■utility of the public waters shall be enforced for the general and 
 private interest, for which reason a volume of said waters granted 
 •cannot be monopolized, unless they are used for the purpose for 
 
464 SPANISH IRRIGA TION LE GISLA TION. 
 
 which they were solicited; on which point the appellant has fallen 
 into a gross error, in supposing that by the concession he had 
 acquired a perpetual right to the waters without using them for 
 the purpose for which they were intended."^ 
 
 On the other hand, if in the issue of a concession an error be 
 made in the expression of quantity of water conceded, or if from 
 any other cause the amount does not meet the requirements of the 
 grantee, the administration is not to be held responsible, for the 
 law expressly exempts the government from any such responsi- 
 bility. The. grantee must take care of his own interests in this 
 regard. 
 
 When a concession has been issued embodying conditions rela- 
 tive to construction of works and delivery of waters, the grantee 
 accepts it upon such terms; it is regarded as a contract between 
 him and the government standing for the public at large and espe- 
 cially for interested parties other than the grantee, and only when 
 he has fulfilled the stipulations does he receive a certificate of right 
 to take and utilize the waters.^ 
 
 The special terms and conditions of water privilege concessions 
 made to companies, associations, and others who contemplate sell- 
 ing the use of waters — their duties, obligations, privileges, and 
 benefits — will be written of in a subsequent chapter under the 
 headings of Irrigation Organization, and Governmental Policy. 
 
 Authorizations — Applications.^ 
 
 Powers and Duties. — In seeking water privileges, the following 
 formalities are to be observed: 
 
 Except in the certain municipalities or localities where other- 
 wise ordered by municipal ordinances or local custom, for permis- 
 sion to construct works in or divert waters from a small stream 
 devoted to town use, the authorization of the mayor is necessary. 
 —[Article 178. 
 
 Where, in order to divert rain-waters or intermittent spring wa- 
 ters from a torrent bed on public lands, it may be necessary to 
 construct a permanent dam or other structure, the authorization 
 of the governor of the province is necessary. — [Article 181. 
 
 When, to conserve or store waters on the public lands, it may 
 be necessary to construct reservoir dams, the authorization of the 
 
 ' Administrative decision; Royal Order, September 21, 1879.- 
 '•* Ministerial circular, Bentabdl y Ureta, Vol. II, p. 309. 
 ' See note to first subhead of preceding section. 
 
ACQUIRED RIGHTS TO WATERS. 465 
 
 governor of the pro\iiice is, and that of the minister of public works 
 may be, necessary. — [Article 182. 
 
 "\^^here, on any river except a large and navigable one, a ripa- 
 rian proprietor desires to pump water by machinery for the irriga- 
 tion of his bordering lands, or even on navigable rivers if injury 
 to navigation is in the least threatened, or on any river if steam 
 is to be used as a motive power, an authorization from the gov- 
 ernor of the province is necessary. — [Article 184. 
 
 "When, by means of a dam, weir, or other permanent work, it is 
 desired to divert for purposes of irrigation from any river, ravine, 
 small stream, or other continuously flowing natural current, a 
 quantity of water exceeding 3.53 cubic feet (100 litres) per second, 
 an authorization from the minister of pubhc works is necessary. — 
 [Article 185. 
 
 If, in the last case, the quantity of water should not exceed the 
 100 litres per second, the governor of the province may make the 
 concession; there being, however, an appeal from his action to the 
 minister of public works. — [Article 186. 
 
 Governors of provinces may also authorize the reconstruction of 
 old dams; and simple works of repairs on existing structures may 
 be done without authorization, but notification of them must im- 
 mediately be given to the governor. — [Article 186. 
 
 The governors are limited in their power such that they can not 
 grant more than one water privilege to any one work of diversion. 
 —[Article 187. 
 
 Applications. — Applications for concessions of water privileges, 
 either to individuals or associations for the irrigation of their own 
 lands, or to associations or companies for the irrigation of the 
 lands of others, must be accompanied by: (1) the plans, descrip- 
 tions, specifications, and estimates of cost of the proposed works; 
 (2) if the application should be by an individual to irrigate his 
 own lands he must, in addition to the above, submit proof of his 
 ownership; (3) if by several individuals for a collective work, the 
 agreement of a majority, computed by superficial area of lands, 
 must be likewise produced; and, (4) if by a society or company 
 to irrigate lands of others, there shall be exhibited the tariff of 
 rates which it is proposed to charge. — [Article 189.] The forms 
 of application, administrative inquiries preceding the grantings, 
 and the terms of concessions, will be found fully explained in the 
 translated regulations affixed to appendix III. 
 30' 
 
466 SPANISH IRRIGA TION LEGISLA TION. 
 
 Protection of Prior Rights} 
 
 Priority of right is most carefully protected by the Spanish 
 law; every concession of water-rights is understood to be made 
 without injury to third parties, and maintaining the rights of ripa- 
 rian proprietors and others; and in every case the common util- 
 izations of water are preeminently respected. — [Articles 150 and 
 160.] When employments of water exist by virtue of recognized 
 and valid rights, a new concession can be made only in case that, 
 xipon gauging the waters, in ordinary years, the quantity desired 
 is shown to be a surplus after supplying existing claims. The 
 gauging having been made, the proper time for irrigation shall be 
 taken into account, in order to determine the quantity of water 
 necessary for the lands cultivated and irrigated, and in time of 
 scarcity the later grantees must suffer the shortage Until the older 
 users shall have been fully supphed. — [Article 190.] But the 
 gauging of the summer flow of streams is not necessary when it is 
 intended to issue new rights to winter, spring, and torrent waters 
 only, which could not be used on the lower lands. — [Article 191. 
 When opposed by owners of existing water utilizations, a new 
 concession can not be granted on a stream until it shall have been 
 shown by an examination and gauging of the water-supply, and 
 of the necessities of the utilizers, that there is a surplus of supply 
 over the rights of existing utilizations, available for the proposed 
 concession. A concession granted by a governor of a province, 
 even of a class such as under the law he has power to grant, if 
 made before the surplus of waters is shown to be available, will, 
 on appeal, be annulled by the administrative authorities of the 
 central government.^ 
 
 Waters in the Gravels of River Beds. — Waters flowing in the 
 gravels beneath the surface of channel beds, are considered as the 
 property of no one, and subject to discovery and consequent owner- 
 ship, as in the case of subsoil or artesian waters. Thus, when by 
 the authorized construction of a submerged dam or other struct- 
 ure across a channel bed, waters are caused to flow at the surface, 
 and are made available for diversion and use, which formerly 
 passed on down stream through the gravels and sand, such wa- 
 ters are regarded as discovered, and the right to them is vested 
 
 ' See note to first subhead of preceding section. 
 
 ^ Administrative decision ; Royal Order, March 5, 1880. 
 
ACQUIRED RIGHTS TO WATERS. 467 
 
 in the discoverer; but irrigators and other users lower down have 
 the right to object and prevent the diversion should they be able 
 to prove that it deprives them of waters held by prior concessions. 
 —[Article 192. 
 
 Whenever, by the diversion of waters from a river, mills or in- 
 dustrial establishments are deprived of or embarrassed in their 
 supply, they must be indemnified to the full amount of their in- 
 jury, and if this can not be done by and under private arrange- 
 ment, the law of expropriation shall be invoked in the case, and 
 the property condemned and fully paid for by the parties doing 
 the injury. — [Article 193. 
 
 Moreover, if, by the construction of works to discover waters 
 flowing in the substrata of a river bed, an injury be threatened to 
 rights already acquired to the use of waters lower down, the gov- 
 ernment will not permit such works to be built, and will annul a 
 concession for them if it appears that the injury could not be rem- 
 edied. A very late administrative decision on a case in point, 
 closed with the following words: "And considering that although 
 it is certain that the concession made by the registrador, of the 
 mine of waters San Isidro, has been made without prejudice to 
 third parties, so that if the works which Don Pablo Prat might 
 have" undertaken in the sub-bed of the river Tordera should affect 
 Ihe amount of this stream, the said mining concession would be 
 annulled, yet this guarantee is void from the moment from which 
 it causes fear that damage would result to the course of the waters 
 by said works, because the damage would be irremediable, and it 
 would be humanly impossible to return things to the condition in 
 which they were before." ^ 
 
 It would appear from a still later decision that concessions of 
 privileges to search for and bring waters to the surface in the sub- 
 strata of river beds are no longer issued when it is at all probable 
 "that such waters are identical with those which rise and flow in 
 the stream lower down, and to which rights have been granted or 
 acquired. The wording is as follows: 
 
 " It is not possible, on good principles of administration, to tol- 
 erate that they should be diverted from their natural course, not 
 even by authority of a special concession legally granted, neither 
 those above the surface and apparent, because the law guarantees 
 them to the towns and lower proprietors who of old acquired rights 
 
 ^ Administrative decision ; Royal Decree, July 2, 1882. 
 
468 SPANISH IRRIGA TION LEGISLA TION. 
 
 to the use and employment of them; nor those subterranean or 
 concealed, because, under the proper interpretation of the general 
 law of mining, of December, 1868, and under the resolution of 
 opinion of the council of state expressed in the royal decree of July 
 2, 1882, * * * these concessions would contribute to the insu- 
 perable injury of the public and must not be granted." ^ 
 
 AUTHORITIES FOB CHAPTER XIX. 
 
 Pardo. — "Legislation of Waters" — an authorized compilation comprising all 
 laws, royal orders, etc., relative to waters and irrigation, promulgated 
 from 1846 to 1879. By D. Aurelio Bentab61 y Ureta and D. Pablo Mar- 
 tinez Pardo ; 1 vol., 8 vo., Madri-d, 1879. 
 
 Bentahdl y Ureta — " Repertory of the latest Legislation of Waters " — a continu- 
 ation of the former work by this same author and Pardo, but in a more 
 systematized form. 1 vol., 8 vo., Madrid, 1884. 
 
 "Memoria sobre las Obras PUblicas" — an oflficial publication of the public works 
 department of Spain, largely devoted to laws, orders, regulations, and 
 statistics concerning waters and irrigation. 7 vols., quarto, Madrid, 
 1866 to 1883. 
 
 Wallis. — "The Institutions, Politics, and Public Men of Spain." By S. T. Wal- 
 
 lis ; 1 vol., Boston, 1853. 
 Johnson. — "Johnson's Encyclopedia." Article " Spain." 
 Amer. Ene. — "New American Encyclopedia." Article "Spain." 
 
 ' Administrative decision ; Royal Decree, March 9, 1883. 
 
RIGHTS OF WA Y. 469 
 
 OHAPTEE XX.-SPAIN'^'j 
 
 THE NEW GENEEAL WATER LAWS'^^-THE EI&HT OF WAT 
 TO OONDUOT WATEES. 
 
 Section I— The Servitudes of Aqueduct and of Abutment. 
 The enforced Right-of-Way. 
 The enforced Right-to-abut-a-Dam. 
 
 Section II — Expropriation on account of Public Utility. 
 General law of Expropriation. 
 Special provisions in the Water Law. 
 
 SECTION I. 
 
 The Servitudes of Aqueduct and op Abutment/ 
 
 The Right-of-Way for a Water Conduit. 
 
 The old laws of Spain speak of the servitude of aqueduct, as 
 did those of the Romans — defining it as a right to conduct waters 
 over the property of another, acquired by agreement, division of 
 estates, or by prescription. There is no mention of a legal right, 
 inherent to all lands requiring irrigation, to have a right-of-way 
 for waters enforced in their favor through other lands. The first 
 mention of the enforced servitude of aqueduct is found in a law of 
 1849" — one of the series of progressive acts in this line which im- 
 mediately led up to the general water law of 1866. 
 
 This law of 1849 was passed about four years after the first 
 French one on the same subject, of which section 2 of the forego- 
 ing chapter VI speaks, and the part relating to the servitude of 
 aqueduct is worded much like it in leading particulars, so we may 
 
 ' See, Pardo; also, Bentab61 and Ureta, Laws and Regulations cited, and 
 others under heading " Servitudes." 
 
 ^ Law of June 24, 1849, concerning exemption from taxes of new irrigations 
 and factories, and concerning the servitude of aqueduct. 
 
470 SPANISH IRRIGATION LEGISLA TION. 
 
 fairly conclude that the Spanish legislation was modeled after the 
 French on this point. Then followed a royal order in 1852, giv- 
 ing instructions at length for the observance and application of the 
 law, and these were made the basis of that part of the law of 186& 
 which relates to this subject. After the passage of the general 
 laWj and up to 1879, five royal orders concerning the enforced 
 servitude of aqueduct were issued, and then we have the general 
 water law of 1879, on which the following remarks are based, 
 except where otherwise credited. 
 
 The Enforced Servitude of Aqueduct} 
 
 The right of way to construct a canal or other water conduit 
 for purposes of irrigation or of drainage, can be obtained over pri- 
 vate lands, for public or private works, as an enforced servitude. 
 — [Art. 77.] The proceeding is altogether an administrative one, 
 conducted by the chief provincial authorities; there being an ap- 
 peal to the administrative courts, but not before the civil courts. . 
 When a declaration of enforced servitude is desired, the applica- 
 tion must be made in due form to the governor of the province, 
 by the petitioner himself or his authorized attorney, setting forth 
 the purposes for which he demands the right of way, the route by 
 which he desires to locate it, as illustrated by maps and measure- 
 ments, showing also the topography on each side of the route, and 
 accompanied by documentary proof of his ownership of the lands 
 he desires to irrigate, and of his undisputed right to the waters to 
 be conducted for the purpose, and also by the report of an engi- 
 neer explaining the situation and giving the reasons for selecting 
 the route desired. The governor will investigate the matter, bring- 
 ing about a meeting or meetings before himself of the interested 
 parties, publishing notices of meetings, notifying the alcaldes of the 
 towns interested, and hearing all arguments for and against the 
 proposition. 
 
 These proceedings may be spread out through a month, in an 
 ordinary case, allowing for the times fixed for pubUcations and 
 notices to elapse. The documents are next all turned over to the 
 chief civil engineer of the province, who examines them and the 
 ground to be traversed, and reports his opinion and recommenda- 
 tions to the governor, who then lays the matter before the provin- 
 
 1 See, General Law of Waters, 1879, articles cited, and, generally, chapter IX, 
 "Servitudes;" also, see note to this section heading. J' r <■ 
 
RIGHTS OF WA Y. 471 
 
 cial council, and with its advice he acts, granting or denying the 
 prayer of the petitioner. There is an appeal from the decision of 
 the governor to the minister of pubhc works, to be taken within 
 thirty days, after a notification of fifteen days, and the governor 
 himself may bring the matter before the minister without deciding 
 it, if he so elects.^— [Articles 78, 79, 251, and 253. 
 
 An enforced servitude of aqueduct may be established tempo- 
 rarily, or as a permanenc}'; but, for the purposes of the law, it is 
 considered permanent when its duration exceeds six years. As 
 compensation for temporary occupation of the ground, etc., by a 
 canal or other conduit, under an enforced ser%dtude, the holder of 
 it must pay in advance to the owner of the land, a sum equivalent 
 to double the just rental on the space occupied, for the time of 
 occupation, together with dulj^ assessed amounts for damages and 
 injuries to the rest of the property, including compensation for 
 inconvenience due to a di^•iding of the land by the work, and the 
 presence of the work itself; and, moreover, it is his duty, and he 
 is legally bound, to restore the surface of the ground to its former 
 condition, at the expiration of the term of his servitude. For a 
 permanent servitude the grantee must pay in advance, as above, 
 the full value of the land occupied, together with compensation for 
 the damages, injuries, and inconveniences spoken of. A temporary 
 ser\'itude cannot be prolonged, but it may be converted into a per- 
 manent one, without any further examination, by the grantee 
 paying for the land in full, less the amount paid for the tempo- 
 rary servitude. But when a conduit is to be enlarged across lands 
 not the property of its o^Tier, applications and proceedings must 
 be had and a decree made as though it were a servitude for an 
 entirely new work. — [Articles 87, 88, 89, and 94. 
 
 When not dangerous to travel or grazing animals, on account of 
 its depth or situation, or not otherwise specially inconvenient to 
 the land owner, an enforced servitude may be established for the 
 construction of an open ditch. When, in the opinion of the com- 
 petent authorities, the dimensions or situation of the work, or other 
 circumstances, require it, the ditch must be covered. When wa- 
 ters in other lands or works may be drawn out, or when there is 
 danger of pollution of the waters, or of supersaturation of the soil, 
 or from other cause it is considered necessary, the conduit must 
 be made as a closed culvert or pipe. All works necessary for the 
 
 ' Ministerial instruction, December 20, 1852, still in force. 
 
472 SPANISH IRRIGA TION LE GISLA TION. 
 
 construction, preservation, and cleaning of the conduit must be 
 paid for by him who has obtained the servitude; and for this pur- 
 pose he is accorded the privilege of occupying temporarily such 
 land as may be necessary, previously paying damages, if any, 
 and compensation for inconveniences caused by his work. The 
 land owner, or the administrative authorities, may at any time 
 take steps to force the canal owner to execute necessary works of 
 repairs or cleaning. — [Articles 86 and 90. 
 
 In the decree establishing an enforced servitude of aqueduct, 
 the width of the land to be occupied by the work, and of that to 
 be known as the margins, is fixed after due consideration of the 
 amount of water to be carried, the character and grade slope of 
 the conduit, the nature of the ground traversed, and the necessity 
 for continuous communication along the route; and the right of 
 passage along and over this width of territory is inherent to the 
 servitude. If the conduit should cross public or private roads the 
 owner of the servitude must construct and maintain the necessary 
 bridges and culverts; and if it should cross other conducts it must 
 be in a manner not to obstruct or accelerate the flow of their 
 waters nor to deteriorate their quality. — [Articles 91-93. 
 
 A right of way for a water conduit cannot be enforced for objects 
 of private interest only, through existing buildings, gardens, and 
 orchards, but for public works this may be done. Neither can 
 such right of way be located through an existing canal unless the 
 owner of it consents. If after such consent the owner of the land 
 objects, the proceedings may be carried forward as already ex- 
 plained. — [Articles 83 and 84. 
 
 The imposition of an enforced servitude can be successfully 
 resisted on either one of two grounds. The first is, that the appli- 
 cant for the servitude does not own the land on which he proposes 
 to use the water, or that he has not a right to the water for the 
 purpose. If this point is raised the questions of ownership and 
 right are carried before the courts, to be decided before the admin- 
 istration will move in the matter of the servitude. The second 
 ground is, that the route can be established over other properties 
 with equal advantage to the person who desires it, and with less 
 damage to those who have to suffer the burden. When this point 
 is raised, the administration investigates and decides the matter. 
 —[Articles 82, 83, and 84. 
 
 It follows from the first of these points, that a servitude for a 
 water conduit cannot be imposed except it be by some one who 
 
RIGHTS OF WA Y. 473 
 
 already has a water-right, as a riparian proprietor, as the owner of 
 artesian waters, or as a grantee of a pri^'ilege from the government. 
 And it is a natural consequence of the second point, that a route 
 for a right of way is carefully studied by competent persons before 
 application is made for the enforcement of the servitude. 
 
 When right of way is desired as a servitude for a public canal 
 built by the general government, in cases wherein expropriation 
 is not required under the law, the minister of public works decrees 
 the servitude, after due examination and payment; and if the^ 
 works are built by the province or a municipality, the governor of 
 the province is authorized to act. — [Article 75. 
 
 The Right to Abut a Dam} 
 
 The enforced servitude of abutment for a dam made its appear- 
 ance in the Spanish laws, for the first time, in 1866, as a section 
 of the general law of waters. This was nine years after the pas- 
 sage of the French law specially on this subject (see p. 140, ante), 
 and in the year following the adoption of the new civil code of Italy, 
 wherein the declaration of this right first found place for that 
 country as a whole. 
 
 As in the case of the right to acquire a location for the con- 
 struction of a canal or other water conduit through the property 
 ■of another, the exercise of this abutment right is altogether an 
 administrative proceeding. When a private person, having a 
 privilege as a riparian proprietor, or a special right as a grantee 
 of a privilege from the government, to divert water from a stream, 
 not being the owner of either bank, or of only one, desires to con- 
 struct a dam or weir for the purpose of diverting waters, under 
 the right or privilege, and the bank owner objects to the work 
 being placed on his land, the exercise of this right-to-abut-a-dam 
 is invoked. The person desiring to avail himself of it makes ap- 
 pUeation to the governor of the province, as in the case of applica- 
 tion for right of way over another's land, and proceedings are had 
 similar to those explained under the foregoing subhead. 
 
 He in whose favor a servitude for abutment of a weir or dam is 
 determined on, is required to pay in advance to the owner of the 
 property the full value of the land occupied, as estimated and 
 ordered by the governor, and, after the construction of the works, 
 to pay an indemnity for damages or injuries done the property at 
 
 ' See, note to preceding subhead. 
 
474 SPANISH IRRIGA TION LEGISLA TION. 
 
 large. In like manner a right to construct a weir or partitioner 
 in a canal may be acquired of the adjacent land owners when he 
 who seeks it has the consent of the canal owners. The servitude 
 of abutment may be enforced not only for the benefit of private 
 individuals, but for that of companies, associations, and public 
 works, as well. — [Articles 102-106, and 253. 
 
 The proceedings to enforce these servitudes of aqueduct and 
 abutment are so very simple, expeditious, and inexpensive that 
 irrigation is certainly on a good footing in this respect in Spain: a 
 private person, company, or association, having a water privilege 
 and land to irrigate, desiring the unquestioned right to place his 
 dam and build his canal, has not a long series of law suits before 
 him, but a simple proceeding to determine the best place for them, 
 and the fair value of the land to be occupied, and extent of the 
 damages inflicted. These points fixed, on making payment, he 
 acquires his desired privileges. If the system does not work well 
 in the interest of irrigation, it must be because of faulty adminis- 
 tration. 
 
 SECTION II. 
 
 EXPEOPEIATION FOB PURPOSES OF PuBLIC UTILITY.^ 
 
 TM General Law of Expropriation^' 
 
 One of the series of steps in advance made in the legislation of 
 Spain, under the influence of the constitutional spirit and at the 
 instigation of the liberal party, after the downfall of unlimited 
 monarchy by the death of Ferdinand in 1833, was the passage, in 
 1836, of a law prescribing the constitutional method of taking pri- 
 vate property for public purposes. This act continued in force 
 until superseded by the present law, passed in 1879, and which,, 
 with its administrative regulation of the same year, forms, with 
 the general water law of 1879, the basis of the present article. 
 
 Article 10 of the Spanish national constitution authorizes the 
 taking of private property for purposes of public utility, in cases 
 and according to forms to be prescribed by law, and the expropri- 
 ation statute makes the necessary provision of these forms, etc. 
 
 '■ See, Pardo; also, Bentabfil and TJreta, laws and regulations cited, and 
 others under heading "Expropriation." 
 
 '' See, expropriation law 1879, and ministerial regulations thereunder. Arti- 
 cles cited by number from the law. . 
 
JilGHTS OF WAY. 475 
 
 Works of public utility are defined as those whose special object 
 is to furnish to the state, to one or more pro\-inces, or to one or 
 more towns, any uses or improvements whatever, delivered over 
 for the general good, whether they be carried out by the state, 
 the provinces, or the towns, as the case may be, or by duly author- 
 ized companies or private individuals. Four steps are prescribed 
 in the taking of private property for public purposes: (1) The 
 declaration that the purpose for which it is to be taken is one of 
 public utility; (2) showing that the execution of the purpose indis- 
 pensably requires the taJdng of the whole or a part of the property 
 to be condemned; (3) appraisement of the value of that which 
 has to be taken; and, (4) payment of the price of the enforced 
 purchase. — [Articles 2 and 3. 
 
 In the case of works carried out wholly as public works of the 
 state, a province, or a municipahty. and under the general law of 
 pubhc works, a declaration of public utility is not necessary, in 
 order that property maj- be expropriated for their location or use. 
 —[Article 11. 
 
 "\^Tien works carried out by private enterprise or companies are 
 to receive a special subsidy or other financial aid from the govern- 
 ment, or when works are deemed of special importance by the 
 government, the declaration of pubhc utihtj' is made by special 
 law. "When they are simply to receive a part of the regular ap- 
 propriations at the disposal of the ministry, and when they affect 
 the interests of more than one province, the declaration of pubMe 
 utUity is made by the national administration, without special 
 legislative enactment. In the case of works of interest to only 
 one province or to the municipahties therein, the governor makes 
 the declaration. — [Article 10. 
 
 To have a work declared of public importance, appUcation 
 must be made to the competent authority, accompanied by com- 
 plete plans, estimates, and explanations in detail, and the argu- 
 ments in favor of the proposition, all in duplicate. The fact, 
 nature, and bearing of the appUcation is then officially published 
 in the provinces and towns likely to be interested; a hearing of 
 objections, if any, is had before the authority acting in the mat- 
 ter; and, finally, the declaration is made or refused, as may ap- 
 pear proper. — [Article 13. 
 
 A work having been declared of public utiUtj', it is the duty of 
 the administration to determine what property it is necessary to 
 take in its favor, whenever a proposition is made. The person or 
 
476 SPANISH IRRIGA TION LEGISLA TION. 
 
 corporation, as the case may be, whose works have been declared 
 of public importance, applies to the governor of the province to 
 condemn lands, buildings, or other property, for the location of 
 works — a canal, headworks, or other necessary feature of the en- 
 terprise, for instance. The application must be accompanied with 
 descriptions in detail, and plats illustrating the property and its 
 ownership, and showing the necessity for taking it. The governor 
 notifies the alcaldes, or mayors, of the towns; an examination is 
 made to see that the exhibits correspond with the facts as shown 
 by the land registers; an ofiicial publication is made; a hearing 
 of objections is had; and a decision as to the necessity of occupa- 
 tion is made by the governor within fifteen days from publication; 
 and, finally, an appeal may be taken from the action of the gov- 
 ernor to the minister of pubUc works. — [Articles 14-19. 
 
 Following the determination as to the necessity to take certain 
 property, or parts of it, comes the proceedings to designate exactly 
 the parts to be taken and the valuation to be ,paid therefor. A 
 notification of intention is published by authority of the governor, 
 and, when possible, the parties at interest are personally sum- 
 moned to appear before the respective town mayors to nominate 
 appraisers. The owner or owners of each piece of property to be 
 taken names an appraiser to act in conjunction with one selected 
 by the government, or by the parties in whose interest the condem- 
 nation is to be made. The appraisers must be acknowledged ex- 
 perts, and are almost always civil engineers. They measure the 
 property to be taken, and report, jointly or separately, its value, 
 to the mayor, who transmits these reports, with his opinion, to the 
 governor; and all the expenses of appraisement are paid by the 
 party at whose instance the proceedings are being had. — [Articles 
 20-25. 
 
 Following the receipt of the reports as to valuations, the gov- 
 ernor makes an offer to the owner for each piece of property. If 
 he accepts, the matter is settled. If he refuses, he must show by 
 the figures of his appraiser that the offer is not just. If the ap- 
 praisers do not agree, a third one is nominated by the judge of 
 the district civil court, at the instance of the governor, and, in the 
 end, the matter may be appealed to the minister of public works. 
 The amount to be paid in all cases is that determined upon as 
 the fair market valuation of the property, plus three per cent as a 
 bonus.— [Articles 26-36. 
 
 It will have been seen that the foregoing is purely an adminis- 
 
JilGJITS OF WA Y. 477 
 
 trative proceeding, and that it is summary and may be expedi- 
 tious. This method of acquiring title to property for a work of 
 public utility, is generally that resorted to for acquiring right of 
 way for all main works of irrigation, while for the minor works of 
 large enterprises, and for small or individual canals or ditches, 
 the servitude of aqueduct, is enforced, as explained in the forego- 
 ing section. 
 
 Expropriation Provisions in the Water Law} 
 
 Besides the general cases in which the declaration of public 
 utility may be made in favor of public enterprise, as specified in 
 the law of expropriation, the general law of waters contains some 
 special clauses relative to declarations of public utility and con- 
 demnations of private property in favor of irrigation enterprise. 
 Thus, the expropriation law requires that a work shall be of spe- 
 cial importance, or have for its special object to furnish to the state, 
 a province, or town, the use of something or of the work itself for 
 the general good, before it can be declared of public utility, but 
 article 200 of the water law says: "works necessary for the em- 
 ployment of public waters in irrigation, may be declared of public 
 utility, for the operation of the law of enforced expropriation, pro- 
 vided that the volume of water exceeds two hundred litres per sec- 
 ond." Thus, an individual enterprise for the irrigation of private 
 property, even, when the volume of water exceeds seven cubic feet 
 per second, which would be equivalent to a little stream seven feet 
 wide, one foot deep, and flowing at the very slow rate of one foot 
 per second, may be declared of public utility, and have private 
 lands condemned and enforced purchase of them made for its 
 right-of-way or head works site. 
 
 The waters of a spring or brook wholly on private property, even 
 when utilized, are subject to expropriation for the supply of towns, 
 when it is made to appear to the satisfaction of the minister of 
 public works that there are no public waters available for the pur- 
 pose. Railways, in all cases, have the right to invoke the power 
 of eminent domain, to expropriate waters for their necessary uses. 
 When an authorization or concession is issued for a water storage 
 enterprise, the grantees of the concession have the right accorded 
 of enforced purchase of water-rights already accrued on the stream 
 below, provided it is necessary to extinguish either right in favor 
 
 ^ See, general law of waters, 1879, articles cited. 
 
478 SPANISH IRRIGA TION LEGISLA TION. 
 
 of the other. In case of unavoidable interference of one water 
 utilization with another— as when higher irrigations take water to 
 the detriment of mills using it for power lower down on a stream, 
 the irrigators may ask to have the lower water-rights condemned 
 in their favor.— [Articles 167, 175, 183, and 193. 
 
 And, in general, every special employment of public waters is 
 subject to enforced purchase, without the passage of a special 
 law, on account of public utility, in favor of another utiUzation of 
 higher order in the scale of uses already spoken of, and as shown 
 in article 160 (see appendix III). That is: water used to supply 
 canals of navigation, mills, or factories, or fish ponds, is subject to 
 expropriation for purposes of irrigation, but water used for irriga- 
 tion, as well as for the other purposes mentioned, can be, in its 
 turn, condemned for the supply of railways or town populations, 
 which rank higher in the scale. And, finally — an important point 
 — one irrigation water-right may be condemned in favor of an- 
 other irrigation enterprise of greater public importance. But, as 
 the "common" utilizations rank higher under the law than the 
 " special " utilizations, rights to use waters " for drinking, washing 
 clothes, vessels, and other objects, for bathing, and watering or 
 washing of cattle or horses," cannot be expropriated in favor of 
 its use for irrigation or any other purpose, except in cases of great 
 works and by virtue of a special law. — [Articles 126, 160, and 161. 
 
 The possession of waters or rights to them is an essential pre- 
 liminary to the obtaining of a declaration of public utility in favor 
 of a work, and the holding of a concession or permit to search for, 
 and discover subterranean waters and cause them to flow on the 
 surface of the ground for a public use, is not a sufficient evidence 
 of having control of the water itself. Before the declaration of 
 public utility will be made, the waters, in such a case, must be 
 discovered and caused to flow in sufficient volume to make their 
 application of public importance for the purpose intended.' 
 
 AUTHORITIES FOR CHAPTER XX. 
 
 Pwrdo. — [Work cited as an authority for chapter XIX.] See, law for expropria- 
 tion, ]3p. 105-121), and ministerial regulation under said law, pp. 579-630; 
 law of public works, pp. 12-48, and ministerial regulation thereunder, 
 pp. 48-104; law concerning enforced servitude, pp. 148-151, and minis- 
 terial regulation thereunder, pp. 156-159. 
 
 JBentabSl y Ureta. — [Work cited as an authority for chapter XIX.] See, Royal 
 Orders, under the headings '' Expropriation" and "Servitudes." 
 
 ' Administrative decision ; Royal Order, June 11, 1879. 
 
ADMINISTRATION. AND POLICE. 479 
 
 OHAPTEK XXI.-SPAIN*^'; 
 
 THE lEW GENEEAL "WATEE LA¥SP>— ADMINISTEATION AITD 
 POLICE or WATEES AND WATEE-OOUESES. 
 
 Section I.— General Administration of Waters and Water-Courses. 
 Governmental Organization. 
 The Administration. 
 Application of the System. 
 
 Section II. — Local Administration of Waters and Irrigation. 
 Sell Government in Irrigation. 
 Development of Local Administration. 
 Ancient Custom and Modern System. 
 
 Section III. — Imgation Communities. 
 
 Governmental Policy — Water-Eights — Association. 
 
 The Principles of Association. 
 
 Revenue — Protection — Control. 
 
 Forming Associations — Adoption of Ordinances. 
 
 Section IV. — Community Administration. 
 
 Model Ordinance of Organization. 
 
 Composition of a Community — Works — Use of Waters. 
 
 Lands and Manufactories — Offenses and Penalties. 
 
 General Convention. 
 
 The Syndicate and Executive Officers. 
 
 The Jury of Irrigation. 
 
 The General Syndicate for a Natural Stream. 
 
 SECTION I. 
 
 General Administration of Waters and Water-Courses. 
 
 Governmental Organization.^ 
 
 The towns or municipal districts, of which there are 9,361 in 
 Spain, are the political units of the Spanish governmental sys- 
 tem, and correspond in this respect to the French and Italian 
 •communal organizations. These towns, or pueblos, grouped, form 
 
 ^ See, Cyclop. Pol. Sci., Amer. Bnc, Johnson's Enc, and Martin, 1882, articles 
 ■"Spain." 
 
480 SPANISH IRRIG4 TION LE GISLA TION. 
 
 the provinces, of which forty-six compose Spain, exclusive of her 
 island dependencies/ The constitution of 1869 guaranteed munic- 
 ipal and provincial liberty, in the following words: "The organi- 
 zation and duties of the provincial legislatures and the municipal 
 assemblies shall be ruled by their respective laws;" and the con- 
 stitution of 1876 further guaranteed political freedom by saying, 
 " the government and direction of interests peculiar to the prov- 
 inces and the municipal districts shall be ordered by their respect- 
 ive organizations." 
 
 Each town has its municipal council or ayuntamiento, 6f four to 
 twenty-eight members elected every two years by general man- 
 hood suffrage, and presided over by a mayor or alcalde, chosen by 
 them annually from amongst their own number. The entire mu- 
 nicipal government, with power of taxation and nomination of 
 local judiciary, is vested in this ayuntamiento, which is at once a 
 municipal legislature and executive council for its pueblo, inde- 
 pendent of superior governmental restraint or interference, so long 
 as it keeps to its duties of town government, as prescribed in the 
 constitution. 
 
 From the town governments flow those of the provinces. The 
 ayuntamientos elect representatives to the provincial diputaciones, 
 which are the law-making assembhes of the provinces. In these 
 legislatures are vested all power of taxation within the provinces, 
 other than that held by the ayuntamientos, and the determination 
 of questions relating to public institutions and works upon which 
 provincial funds are to be expended. The provincial diputacion 
 meets annually and elects from amongst its number a permanent 
 committee, called the provincial commission, of three to six mem- 
 bers, which is in constant convention between the legislative 
 sessions, performing certain executive duties, acting as a board 
 advisory to the civil governor, and as an administrative court of 
 appeal from the decisions of the mayors and of the governor. 
 
 The general government, holding a constitutional check on pro- 
 vincial legislative action, appoints the chief executive officer of 
 the province, in the person of the civil governor, who, besides being 
 the active head of the provincial administration, has a certain 
 power of holding in suspense the effect of legislation until it can 
 
 ' The area of Spain exclusive o£ the island provinces is 194,360 sq. m. The 
 average size of a town jurisdiction would, hence, be 20.7 sq. m.— a tract little 
 more than 4x5 miles in extent; and of the provinces, 4,225 sq. m.— a region 65 
 miles square. 
 
GENERAL ADMINISTRATION. 481 
 
 be considered by the general council of state in testing its consti- 
 tutionality, if necessary. 
 
 The cortes, composed of a senate, with membership partly elect- 
 ive and partly hereditary and honorary, and a congress whose 
 members are elected in each electoral district according to its 
 own laws, is the law-making body of the kingdom; and the king 
 has also a voice in legislation and the power of initiating legisla- 
 tive measures to be considered by the cortes. 
 
 The Administration} 
 
 The national administration under the king is vested in his 
 nine ministers, who are responsible for their actions to the cortes, 
 and who together compose the council of state, and groups of five 
 of these members sit as sub-councils, or sections of the council, 
 on matters pertaining to certain bureaus. There is a minister of 
 public works, and also a section of the council which deals with 
 public works affairs, such as do not necessitate attention from the 
 full council. The minister of public works is at the head of the 
 bureau of commerce, agriculture, and public works, and within 
 the latter branch is the administration of waters, water-courses, 
 and irrigation in the kingdom. Presiding over this department is 
 a director of public works; and a corps of civil engineers are his 
 personal agents in the performance of the technical part of his 
 duty, both upon works and water-courses. 
 
 The governors of the provinces and under them the provincial 
 civil engineers, and the alcaldes of the pueblos and under them 
 the municipal police, are the civil administrative officers, to carry 
 out the regulations and instructions concerning waters and irriga- 
 tion, issued by the minister, and to perform such other duties in 
 administering the law as the law itself directs. 
 
 The provincial councils act as administrative courts, and in ad- 
 vising the governors and determining questions under the regula- 
 tions, and the council of state is the highest court of appeal on all 
 questions of administrative action. In the general administration 
 of waters, therefore, there are the executive officers — the mayors 
 of towns, governors of provinces, and minister of public works; 
 and the advisory councils and administrative courts, the provin- 
 cial commissions and the council of state; and the provincial and 
 
 ^ See, Bentabfil and Ureta, headings " Attributes of the Administration," and 
 "Jurisdictions of the Courts;" also, authorities cited for preceding subdivision. 
 
 31' 
 
482 SPANISH IRRIGATION LEGISLATION. 
 
 governmental engineers are the technical ad^'isers and active su- 
 pervising agents. 
 
 The general powers and duties of the members of this adminis- 
 trative regime will be quite well understood from reading what is 
 said incidentally to other special topics in these chapters, but 
 especially from a reading of sections 248 to 252 of the law found 
 in appendix III; and the relation of the administrative and civil 
 courts to our subject, may be well studied in articles 253 to 256 
 of the same law, to all of which attention is here asked. 
 
 The active local agents of this administration of waters and 
 water-courses, the alcaldes, and the provincial civil engineers and 
 their assistants, report to the governors of the provinces; and 
 these, in turn, to the minister of public works. The ministerial 
 action is taken in the form of regulations, gi^^ng instructions in 
 detail for carrying out or availing of certain portions of the law; 
 circulars, giving general instructions concerning executive duty; 
 and orders or decrees, deciding special points or questions. When 
 a question is appealed beyond the minister, the council of state 
 renders an advisory opinion, and the result is promulgated in the 
 form of a royal order or decree. 
 
 Application of the System. 
 
 For the purposes of this report, and after the fuller treatment 
 of the French administrative system, it is unnecessary to go into 
 details of the Spanish governmental supervision of water-courses. 
 The organization is much less extended and complete than that 
 of France; the practice is confined more to generalities and less 
 to local specialities; and the service has been made efficient only 
 within the last few years. 
 
 It is a remarkable fact that during all the overhauling which 
 the affairs of Spain have recently had under the liberalizing spirit 
 of the constitutional parties, and notwithstanding the estabUsh- 
 ment of the independence of municipal and provincial government 
 — making the ayuntamientos free and elective and with power to 
 choose their alcaldes — ^the constant tendency has been to take all 
 control of waters and water-courses out of the hands of the munici- 
 palities and provinces, except in so far as the mayors act as agents 
 of the general government in executing the general laws and the 
 administrative regulations under them. The municipalities seem 
 to have been entirely shorn of their former large measure of in- 
 
GENERAL ADMINISTRATION. 483 
 
 dependent legislative as well as executive control over natural 
 streams through the lands of their jurisdiction; the general gov- 
 ernment in asserting its supremacy in this respect, as we shall 
 see in the next section, has chosen to place the local control of 
 waters, where necessary, into the hands of irrigators organized into 
 communities specially for the administration of irrigation matters, 
 rather than leave it in the hands of the political town organiza- 
 tions. 
 
 SECTION II. 
 
 Administration op Waters — Irrigation Association. 
 
 Sey Government in Irrigation. 
 
 Self government in irrigation has its root in the individual con- 
 trol of waters in private ownership. It steps thence to that of 
 waters public but in the private possession of the cultivator in 
 his fields of irrigation. And so, by degrees, following up the 
 water's flow, it has been applied, in the persons of irrigators, and 
 in the interest of irrigation, to the management of systems of arti- 
 ficial works of small and great degree, and, even, of large natural 
 streams in whose waters there is an unconsolidated community of 
 interest, and of which an equitable division has constantly to be 
 made to a number of works or districts. Thus has this principle 
 been carried to its extreme in application. 
 
 It is in doctrine the reverse of an autocratic governmental 
 administration of water-courses and waters, and in application 
 commences at the other extreme of the water's course. General 
 government, be its nature what it may, of a right representing the 
 public interest at large, becomes the guardian of public waters 
 and their channels. As such guardian, its functions have been 
 applied, in some countries, to the construction and management 
 of works for the conducting out and distribution of these waters 
 in irrigation — in no less a free country than was France under 
 the last empire, irrigation itself was conducted in some districts, 
 on the private lands, by public irrigators appointed by the prefect 
 of the department, himself the appointee of a minister of the cen- 
 tral government. Thus was this principle carried to its extreme 
 in application. 
 Where should these opposing systems meet? Where should 
 
484 SPANISH IRRIGA TION LEGISLATION. 
 
 governmental control of public waters cease, as they flow on to 
 enrich the lands of private individuals? Where should the irri- 
 gation interest take special control of waters to be devoted to its 
 needs, which have but the moment before been the property of the 
 public, uncontrollable by any special interest? Should, on the 
 one hand, works and waters of irrigation come under govern- 
 mental control; or, on the other, should the streams of the public 
 pass, tingoverned, into the hands of those who seek to divert and 
 consume their waters? This is a great question. One which has 
 occupied the minds of men in many lands, under conditions much 
 varied, and the student of such matters will find that there is no 
 one answer which might properly have been given in any large 
 part of the practice. The structure of governmental administra- 
 tion; the political, social, and industrial condition of people — 
 their antecedents in this regard, as well as present status — and 
 the physical conditions attendant upon the water supply and 
 lands, all influence the solution of this question. It has, conse- 
 quently, been answered many ways. Southern and eastern Spain 
 have been the field of developments in this line that, even under a 
 monarchial and often tyrannical rule, has resulted in an extreme 
 application of the principle of self government in irrigation mat- 
 ters; for, large natural and public streams in those regions have 
 been wholly controlled and governed by irrigators, and, in in- 
 stances, by some irrigators to the exclusion of others: the stream 
 itself virtually became community property. "Witness the case of 
 the Jucar, as controlled by the Valencian associations, of which 
 I have written in chapter XVII; and this is only one example of 
 many which might be cited. And, as an outcome of these local 
 instances, we find in the very new general water law of Spain, 
 a recognition of the principle and provision for its application, in 
 a conservative and guarded way, to be sure, where desired by irri- 
 gators or deemed necessary by government. Let us see how this 
 has come about. 
 
 Development of Local Irrigation Admiiiistration. 
 
 From very early times the people of southeastern and eastern 
 Spain have been cultivators and irrigators. The prosperity of the 
 country has depended almost wholly on the use of water in irri- 
 gation, and there have been no centralized interests or industries 
 opposed to the taking of water from the streams. This was not 
 
LOCAL ADMINISTRATION. 485 
 
 the cattle raising and sheep growing quarter of Spain; the climate 
 and natural productions were not favorable to these pursuits. The 
 streams were not navigable, neither were they tributary to navi- 
 gable rivers, and, hence, not on account of commerce either, was 
 there public interest in them as such. The utility in the streams 
 was in the taking of their waters out. 
 
 In the meantime, the government of Spain has changed hands 
 over and over again. But the greater struggles, and the scenes of 
 political supremacy have been in other parts of the peninsula. 
 The irrigation quarters of the east and southeast were cut off from 
 central Spain by rugged mountain ranges, and were looked upon 
 as outside provinces. They were the regions last reconquered 
 from the Moors, and their people were of quite different type, 
 manners, and customs. For long years there was no stable and 
 fixed government in these regions, which could administer the 
 public domain. Custom had, during still more unsettled times, 
 led the irrigators to do as they chose with the streams from which 
 they took waters. When, finally, a more settled condition of 
 things followed the final expulsion of the Moors, the new con- 
 querors were glad enough to purchase quietude on the part of 
 these half Moorish people, in their region distant from the centers 
 of Spanish power, at any price which did not harm Spaniards or 
 the government. The irrigators demanded control of the waters — 
 that their "ancient customs and rights be recognized" — and this 
 was given them. 
 
 As we have seen by a few instances cited in chapters XVII and 
 XVIII, the early Spanish kings seemed glad enough to deed the 
 waters, with control of streams implied, to the irrigators of Valen- 
 cia and Murcia, and this has been the foundation of the system 
 of self government in irrigation which has grown up there. The 
 streams themselves were actually or virtually granted to the irriga- 
 tors. Very many water-rights of this kind now exist throughout 
 this quarter of Spain, which date from the twelfth, thirteenth, or 
 fourteenth century, arid practice under them has strengthened the 
 custom of local government of natural streams. And at no time 
 since has the political system been sufficiently fixed and an ad- 
 ministration long enough established to admit of systematic man- 
 agement of water-courses by governmental authority, until this 
 has been gradually attempted during the last century, and partic- 
 ularly the past thirty years, as we have seen in the preceding sec- 
 tion of this chapter. 
 
486 SPANISH IRRIGATION LEGISLATION 
 
 In the meantime the people in some quarters had become 
 thoroughly wedded to established usage; their administration of 
 streams by syndicates of irrigation and tribunals of waters gave 
 them great satisfaction, and it interfered with no one else. Under 
 the circumstances there was much that was good to be found in 
 these institutions. So much so that Italy, long years before, and 
 France more recently, had copied them. But in Spain there was 
 for a long time a great opposition to them from certain quarters. 
 The conflict was one of higher principle, as well as opposition 
 to the mere practice of local government of streams. It was the 
 conflict between monarchial institutions and republican princi- 
 ples: in the last century, the struggle between the government 
 and the people; in the first part of this century, the struggle be- 
 tween the monarchial party and the constitutionalists; later, 
 between the old tyrant Ferdinand and an outraged nation; then, 
 between the Carlists and the liberals; still later, the struggle be- 
 tween the Moderados and the Progresistas in the politics of the 
 country; and, finally, in this last contention, local self govern- 
 ment in irrigation has, to a certain extent, been conceded. In 
 this the party of "progress" has been joined by the party of "mod- 
 eration." 
 
 The south and southeast of Spain, where irrigation has been 
 practiced, and where local self government in irrigation has grown 
 as a custom, has always been the hotbed of democracy in the pol- 
 itics of the country; while the north and west, where cattle and 
 sheep raising, grain growing, and manufacturing have been the 
 prevailing industries, and irrigation has not, until late years, been 
 much practiced, have equally been the stronghold of the monarch- 
 ial party. The sturdy Biscayan, the selfish Basque shepherd, the 
 fierce warrior of Navarre and of the Asturias — all mountain 
 dwellers of the north, and not irrigators — with the austere Castil- 
 ian of the central plateaus, the energetic Leonian and the war- 
 like Aragonian of the great northern valleys, were the deliverers of 
 Spain from the infidels — driving them south and east, off from 
 the peninsula; and since then, amongst the descendants of these 
 patriots, have been found the major part of the supporters of the 
 throne; while the "witty, flippant, gallant, bull destroying Anda- 
 lusian" of the southern valleys, the swarthy, industrious, treach- 
 erous Valencian, and his cousin of Murcia, on the east coast — all 
 irrigating people — occupy the country whence the Moors were last 
 driven, and have ever furnished the greater proportion of ultra 
 
LOCAL ADMLNISTRATLON. 487 
 
 progressionists in the politics of the nation, and been the most 
 intractable and unsubmissive to central government. 
 
 May it not be that Spanish politics and the destiny of Spain 
 have been influenced far more than the Spaniards themselves gen- 
 erally suspect by the concessions of streams and privileges of self 
 government in irrigation matters, which these people of the south 
 and east received from the early Spanish kings, to make them 
 contented and keep them quiet in their retired quarter ? Has not 
 this local exercise of self government, and freedom from official 
 restraint in the pursuit of their peculiar industry begot anew, bred, 
 and forwarded that sentiment which has spread through Spain as 
 the constitutional spirit, which now dominates the country, and 
 has circumscribed the power of the throne ? Has not the control 
 of the country by the people been hastened by the early control 
 of water-courses by them in some quarters ? 
 
 During the last century, several governmental attacks on the 
 irrigation administrative system prevalent in the eastern prov- 
 inces, were made. The people of other quarters wished to adopt 
 the system of local self government, and establish " tribunals of 
 waters," or "juries of irrigation;" but the government held that 
 the town authorities were the proper local administrative bodies 
 for community irrigations, and that special courts of waters were 
 incompatible with the national judiciary system. Attempts were 
 even made to abolish the water court of Valencia — the parent 
 of all the institutions of this kind — but these failed, as we have 
 seen.' Then came the time when the opposition gradually ceased. 
 This was through the period heretofore written of as that of early 
 constitutional development. Following on has been a term when 
 the principles of constitutional monarchy have been apparently 
 victorious in Spain, and with their triumph has risen and. been 
 adopted, as a part of the national law, the principle of local self 
 government in irrigation. 
 
 Not only the antecedent political influences and tendencies 
 spoken of, but also the material necessities of the country, have 
 directly contributed to this end. All parties have recognized the 
 great necessity of advancing agricultural interests, and each has 
 striven to encourage irrigation. But system, of control there had to 
 be of some kind, and no party was long enough in power to build up 
 a central administrative department,.as the French had. Hence, 
 
 ^ See, pp. 395-398, ante. 
 
488 SPANISH IRRIGA TION LEGISLA TION. 
 
 actual necessity of doing something to bring order out of chaos in 
 many old irrigation districts, and to admit of the carrying out of 
 new enterprises, may have forced the acceptance of the Valencian 
 plan of local administration of waters, to be applied where desired 
 or necessary. That this plan was popular, was all the more rea- 
 son for the general acquiescence in it by political leaders. But 
 we may well understand that it was heartily adopted by the chief 
 figures in the political field during the time of which I have just 
 written; for the Progresista leader was Espartero, a man who really 
 devoted himself to the material advancement of his country, and 
 who spent years of his life in agricultural pursuits; while Narvaez, 
 the leader of the Moderados, was duke of Valencia, and from the 
 irrigated quarter of Spain. 
 
 Ancient Custom and Modern System} 
 
 The primary outcome of irrigation development in Spain, in the 
 matter of administration, could hardly have been encouraging for 
 the cause of self government. Speaking of the times in Valencia 
 before the remodeling of the regulations of which I have written 
 in chapter XVII, Aymaird wrote: "There is but one word which 
 will describe the ancient state of affairs in irrigation administra- 
 tion, and that is, anarchy." — [p. 34.] In another place he speaks 
 of the condition of affairs in Granada in the following terms: "Con- 
 trary to that which has happened in other irrigation centers of the 
 peninsula, things have here remained exactly as they were in the 
 year 1492, at the time of the conquest. * * * It were vain to 
 seek for positive administrative principles in the midst of the con- 
 fused regulations that characterize these irrigations." — [p. 264. 
 
 Continuing, and after speaking of the absence of regulations and 
 administrative organization at Granada, this author remarks the 
 fact that there is no apparent confusion in the apportioning of the 
 waters, and explains this by showing that the water supply is 
 abundant for all, and, hence, that conflicts do not occur, and in 
 further explanation, he says: 
 
 " To understand how even now the irrigations are made with 
 regularity, but without general supervision, we must remember 
 that for several hundreds of years the division of water, crude 
 though it be, has remained the same, that the rights of each water 
 property have become as the bounds of the lands themselves. But 
 
 ' See, Aymard, Chaps. II and XXI. 
 
LOCAL ADMINISTRA TION. 489 
 
 if we recur to the times when these irrigations were being devel- 
 oped, we are amazed at the bare thought of disorders, encroach- 
 ments, and violence of all kinds that-niust have been in this place, 
 without any definite principles of administration. 
 
 " It is apparently believed by everybody that the Spanish con- 
 querors of the Moors only applied the institutions of their predeces- 
 sors in matters of irrigation ; that the honor of their creation belongs 
 to the Moors; that Spain actually did nothing but inherit a splen- 
 did heritage, by which she benefits. * * * But we must reflect 
 on the continual improvements that have been in progress all over 
 the country; on the crude ways yet to be seen at Granada. In 
 every century, regulations have been repeatedly revised ; and every- 
 where, in spite of the diversity of fundamental principles, a me- 
 thodical administration has been obtained, regular, strong, and 
 concentrated. Does this honor belong to the Moors or to the 
 Spaniards? The example of Granada leaves no doubt in our mind 
 on this subject. We find there undisturbed the institutions prac- 
 ticed by the Moors therhselves. The work of Loaisa, written but 
 a little while after the conquest, largely by dictation from the old 
 tillers of the soil, may be considered as a photograph of the irri- 
 gations practiced by the Moors. 
 
 " It becomes possible, therefore, to make a sort of comparison 
 between the irrigation institutions of the Moors and of the Span- 
 iards. On the side of the Moors, there is nearly a complete 
 absence of first principles of regulation; not any unity, not any 
 centralization, hardly any policing, divisions of waters made with- 
 out fixed plan, surely there was a time when there was anarchy 
 prevailing. If this anarchy has ceased, it is because the disorder 
 itself, ungoverned by a powerful hand, has become orderly by a 
 long lapse of time. 
 
 " But this is not the sign by which we recognize good institu- 
 tions. Such institutions should be good from the first, without 
 the aid of time, without support of power; they should be suscep- 
 tible of assuring regular working from the start. The systems of 
 Valencia, AUcante, and Murcia, reformed and gradually made 
 anew by the Spaniards, would do this. The system of the Moors, 
 preserved at Granada, would not. 
 
 " But we must be just to all. Without doubt the Moors irrigated 
 before the Spaniards, but to these latter incontestably belongs the 
 greater part of the honor of those institutions of administration 
 that are admired to-day." — [Aymard, pp. 269-271. 
 
 Having traced its development, we may now to advantage ex- 
 amine the system of local government in irrigation, itself. 
 
490 SPANISH IRRIGA TION LEGISLA TION. 
 
 SECTION III. 
 
 Irrigation Communities/ 
 
 Governmental Policy — Wa ter-Rights . 
 
 The Spanish governmental policy contemplates the joining of 
 all public waters available for irrigation with the lands which 
 they may irrigate, and their management by the owners of the 
 lands — individually, or as organized into communities. . Accord- 
 ingly, as we may have seen, the conditions under which water 
 privileges are issued are in all cases such as ultimately result in 
 the union of the water with, the land, and, as we will presently 
 see, the formation of communities of irrigators is made compul- 
 sory in a very large range of cases. Thus, the law provides for the 
 granting of water privileges: (1) to individual proprietors, for the 
 irrigation of their own lands; (2) to several proprietors collect- 
 ively, for the irrigation of their estates; (3) to organized commu- 
 nities or associations of proprietors, for the lands of their members; 
 and, (4) to individuals and companies or other organizations, for 
 distribution to the lands of others. In the first three cases the 
 water-right is directly attached to the certain lands of the persons 
 receiving the privilege or interested in the organization; while in 
 the fourth case, although the water privilege is temporarily the 
 property of the grantee, such concessions are only for limited 
 terms, at the expiration of which all works and rights pass to the 
 land owners, organized as a community of irrigators. — [Article 
 188.] Thus, in every case of new irrigations with public waters, 
 the ownership of the water-right is, ultimately at least, to rest 
 with the land owners; and this has been the general policy of the 
 various governments Of Spain for over a century, and, perhaps, 
 much longer. But during a greater part of this period the princi- 
 ple of local self administration of these rights was not encouraged 
 by the government. Now, however, this also is part of the gen- 
 eral law, and applicable where desired by the people or thought 
 necessary by government. 
 
 Governmental Policy — Association. 
 
 Such being the policy of the government in placing the public 
 waters available for irrigation, under the control of those' who may 
 
 ' See, Beiitabfil and TJreta; also, Pardo, laws and regulations cited. 
 
COMMUNITY ADMINISTRATION. 491 
 
 so use them on their own lands, it supplements this step by mak- 
 ing obligatory the organization of these utilizers into societies or 
 associations, the outline of whose formation and management it 
 prescribes in its laws and regulations. Following generally the 
 terms of the law of 1866, and of regulations which preceded it, 
 the law of 1879 provides that when twenty or more irrigators are 
 served under one water privilege, and the area of their lands thus 
 irrigated exceeds two hundred hectares (494 acres), or when, in 
 the opinion of the governor of a province, "the local interests of 
 agriculture demand it," " a community of irrigators shall neces- 
 sarily be formed." — [Article 228.] But, notwithstanding these 
 provisions, proprietors whose lands are irrigated with waters di- 
 verted before or after those of the community, cannot be compelled 
 to join or stay in the association, but may form a society for them- 
 selves alone and make their own regulations. — [Article 229. 
 
 Thus, in irrigations already existing, except in the cases here- 
 after to be mentioned, when the number of irrigators exceeds 
 twenty, and their irrigated lands are jointly more than 494 acres 
 in area, the law makes it obligatory on them to organize an asso- 
 ciation according to its terms and those of the ministerial decrees 
 under it. If they should not do so voluntarily, the governor of the 
 province will order it done, and a failure to comply with such 
 order will work an impairment of the water privilege. The gov- 
 ernment makes this a condition of the use of public waters by a 
 number of persons jointly, whether the rights to water had accrued 
 before the passage of the law or not. The rule is based on the 
 police power of the government; and accordingly we find the chap- 
 ter on the organization of associations, with the provision making 
 compulsory the formation of associations, placed in the law, under 
 the title of " The Police of Waters." And with it is coupled the 
 declaration that the police of the public waters shall be in charge 
 of the administration, and that the minister of public works shall 
 dictate the necessary general regulations for their use and em- 
 ployment. — [Article 226. 
 
 When the number of acres does not exceed 494, and when the 
 number of irrigators does not equal twenty, in any district served 
 with public waters under one privilege, the law generally leaves 
 the question of the formation of an association to the decision of 
 the majority of the irrigators representing a major part of the land 
 irrigated, and if such majority so determine, it must be formed; 
 but even if the majority determine in the negative, as the excep- 
 
492 SPANISH IRRIGA TION LEGISLA TION. 
 
 tion to the general rule, should the governor of the province con- 
 sider that the interests of the local agriculture demand it, he may 
 Order the organization to be made. 
 
 But, in the compulsory formation of communities for joint util- 
 izations of public waters which existed before the passage of the 
 law, as the exception mentioned in the second paragraph preced- 
 ing, article 231 says that districts "which have hitherto had a 
 special system embodied in their ordinances, shall continue under 
 the same as long as a majority of those interested do not wish to 
 modify it, subject to that which is prescribed in the present law, 
 and without prejudice to the accomplishment of that which is ar- 
 ranged in article 190." 
 
 That is to say, where there is a systematic orgamzation and man- 
 agement already in a community, and where this system has been 
 embodied in the form of a written ordinance, until the majority of 
 those interested desire to make a change, it shall be adhered to; 
 but (consulting the article, 190) such perpetuation of existing or- 
 ganizations is not to be construed as authorizing and confirming 
 uses of waters, which by examination and gauging may prove to 
 be extravagant. 
 
 Thus, the systems of management, which we have traced in for- 
 mer chapters, as developed in the Valencian and INIurcian districts 
 under customs of very very long ago, and as remodeled in later 
 years under special governmental decrees, and also other forms of 
 organization and management resting on custom or early grants of 
 right — some analogous to the present prescribed form and some 
 totally different in principle and structure — exist at this day all 
 over Spain. But many changes from the more primitive forms of 
 organization to those upon which the provisions of the new laws 
 were based, had been made during the half century prior to the 
 passage of these laws, and reorganizations since have been more 
 numerous, so that the tendency thus is strongly to a uniform sys- 
 tem of irrigation management throughout Spain. Moreover, the 
 greater irrigation enterprises of the country have nearly all been 
 inaugurated since this renaissance in irrigation organization, so, 
 it may be said, that at this day the administration of irrigation 
 affairs in all the larger districts of the country is based upon prin- 
 ciples similar to those embodied in the general law of waters. 
 
 Such being tlie result of past policy, and the effect of the law 
 on irrigations already existing, as we may suppose, water privi- 
 leges now directly issued for the joint benefit of a number of irri- 
 
COMMUNITY ADMINISTRATION. 493 
 
 gators are granted to them only as associated under the law, in all 
 cases wherein the government thinks such an organization should 
 be formed. It is only, then, in cases wherein the number of pro- 
 posed irrigators is less than twenty, and the area to be irrigated is 
 less than 494 acres, that a water-right for a joint utilization can 
 be had on any other terms, and even then the government must 
 be satisfied that due provision is made for the economical use of 
 the waters and harmonious working of the management, else it 
 arbitrarily orders the formation of an association. 
 
 Even when a water privilege is issued to a company or indi- 
 vidual for sale, rental, or distribution of waters to the lands of oth- 
 ers, an association of the consumers is immediately formed under 
 the law, the details of distribution of the waters is committed to 
 its charge, and, as before written, it falls heir to the works and 
 privileges at the expiration of the stated term of the concession. 
 
 The, Principles of Association. 
 
 The general principle of organization is that of a representative 
 government, the forms being prescribed in the law and the details 
 in the regulation under it. The model in outline and leading prin- 
 ciples being thus made compulsory, the details of organization and 
 of the ordinances and community regulations are left to the dis- 
 cretion of each association. The principles advanced by law are 
 those of the local developments already written of, and the forms 
 prescribed bj-^ the law and regulations are based upon the best 
 examples from practice, in the light of half a century of expe- 
 rience in revising those of ancient times. 
 
 The law expressly accords to irrigating communities the power 
 of fixing the qualifications of their electors and of those eligible 
 to office; the proportioning of votes to land ownership; the times 
 and forms of elections; the terms of office; manner of counting 
 votes and conducting proceedings of the assemblies. It provides 
 that every community shall have an elective governing body, to 
 be called a syndicate; that the number of members of this body 
 may be fixed by the community, considering the extent of the irri- 
 gations, the number of main distributaries employed, and the 
 number of irrigation centers or towns supplied; that the service of 
 the members shall be rendered gratuitously, and that on election 
 the individual must serve for at least one term. — [Articles 230, 
 231, 232, and 239. 
 
494 SPANISH IRRIGATION LEGISLATION. 
 
 We here find the principle of compulsion applied not only to 
 the formation of associations, but to the acceptance of office under 
 such organization. It reaches not only the irrigators collectively 
 and forces their action, but also each individual and makes ob- 
 ligatory his gratuitous service in the administration of the local 
 waters and irrigation under the law, if he be selected by vote of 
 his associates. 
 
 Although the communities, are expressly given power to frame 
 their own ordinances or regulations under the law and adminis- 
 trative models, they are, yet, directed to submit these for approba- 
 tion to the government authorities. The minister of public works 
 may accept them, and, if not appealed from, such action will be 
 final. The council of state may refuse to advise the sanction of 
 an organization which in its judgment is not made in accordance 
 with the terms of the law, or which materially differs from the 
 administrative models; and on such advice the minister may 
 reject it, and the community will have to be reorganized. — [Ar- 
 ticle 231. J In this feature of the law we find the provision which 
 compels uniformity of organization, in all essential points, through- 
 out Spain. 
 
 The general assembly of the members is the source of power 
 and the supreme authority in the community, and all irrigators 
 and users of water within the district are eligible to membership. 
 The regulation directs that at the first meetings for the formation 
 of an association, and before it has adopted its ordinances, the 
 voting shall be done according to area of lands which each partici- 
 pant represents, but all have an equal voice in the proceedings. 
 This provision really puts the stamp of landed qualification on the 
 whole organization, for, although the assembly may fix the status 
 of the individual vote as it chooses, it is not likely that the larger 
 proprietors in organizing will altogether sacrifice their advantage. 
 The practice, apparently, results in a compromise on this point, 
 so that, in the ordinances examined, the vote is accorded to cer- 
 tain units of ownership, in such way as to Umit the proportionate 
 voting power of the larger owners.— [Articles 239 and 240. 
 
 While the law allows much freedom in the organization of asso- 
 ciations, on the important points of electoral qualification, repre- 
 sentation, and voting, the number of members in the governing 
 syndicate, etc., there is yet a limitation on this independence, pro- 
 vided to make certain of equitable distribution of membership. It 
 is found in article 236, and insures to the lands last receiving water 
 
COMMUNITY ADMINISTRATION. 495 
 
 in a district, and to each of the several centers of irrigation or 
 separate interests naerged into the community, their due repre- 
 sentation in the board of control. It is an essential part of the 
 organization, made necessary by the spirit of the law as well as 
 the letter of ministerial instructions, to keep the census of indi^dd- 
 ual irrigators and the records of water use constantly up to date, 
 and to reapportion representation in the syndicate in accordance 
 with these data, applied under the rule, whenever it may become 
 necessary. Failure in this woald result in appeal to the govern- 
 ment, and the administration would perform the duty if the com- 
 munity authorities refused to act. 
 
 Revenue — Protection — Control. 
 
 The law seems carefully to have avoided details in its provis- 
 ions concerning community revenue and expense, the sole check 
 on free action being that all expenses shall be borne "by the irri- 
 gators in equitable proportion." Thus, there are plans of assess- 
 ment and tax levying which might be considered equitable in one 
 quarter which would not be so considered in another. We have 
 already seen that very great variation in this respect existed in 
 the older irrigation districts of eastern and southeastern Spain; 
 and the fact is that newer ordinances show examples of revenue 
 systems of every variety, from, that based on simple measurement 
 of water used, without reference to land ownership, to that based 
 simply on area of land ownership without reference to area irri- 
 gated or amount of water used. — [Article 233. 
 
 While the law is most careful to guard existing interests within 
 communities as well as without, it has not overlooked the fact that 
 obstinate inaction and illiberal spirit, as well as absolute inability 
 on the part of some individuals to join in an improvement, may 
 often be present, and prevent the carrying out of the best and most 
 promising improvements, if there is no way of avoiding such nega- 
 tion. Hence, we find a clause which enables some irrigators of 
 the community to carry out works or to enlarge those existing, at 
 their own exclusive expense, and to fully profit by their enterprise, 
 provided they obtain the consent of the community as a whole. — 
 [Articles 233 and 234. 
 
 Although, in the main, irrigation communities'are the complete 
 owners of their property — even of the water power which the flow 
 in their canals may afibrd — the law is ever vigilant to insure the 
 
496 SPANISH I R RIG A TION LE GISLA TION. 
 
 full measure of benefit being derived from the public waters; and 
 if a community does not utilize the power which the waters in its 
 channels may be caused to produce, the administration, after due 
 notification and formality, may grant the right of such use to other 
 parties. — [Article 235.] There can be no more conclusive proof 
 than this of the complete control which the government really 
 reserves over its waters, even though it does leave the details of 
 their management to local communities of irrigators. 
 
 Forming Irrigation Communities} 
 
 Although the law, as we have seen, compels the organizing of 
 irrigators into associations, and prescribes the general form and 
 principles of such organizations, it does not make the initiation 
 and conducting of the proceedings an administrative power or 
 duty, except in those cases wherein the governor may order such 
 formation, or in the cases where the alcalde may be called upon 
 to inaugurate a movement, as we shall next see. It appears .to be 
 the policy to leave the proprietors as free to act as possible under 
 the law and regulations. They are supposed to know the law and 
 the terms of using public waters, and to be disposed to comply 
 therewith. 
 
 The law is silent upon this subject, but the ministerial circular 
 of instructions under it enters into details substantially as follows: 
 In cases where it is desired or necessary under the law to form an 
 irrigation association the movement shall be commenced by the 
 proprietors collectively, or, in default of this, the alcalde of the 
 town in whose jurisdiction the lands lie must call a meeting, giv- 
 ing at least thirty days' notice in the most public manner, to all 
 those interested in the utilization of the waters in any manner, 
 within the proposed district,. setting forth the object and design, 
 time, and place of the proposed meeting. 
 
 This general convention or assembly of interested persons, must 
 determine the basis of the proposed organization, upon which its 
 constitution or ordinance and regulations are to be framed, and 
 appoint a committee of its members, to put its wishes into form 
 according to the model prescribed in the ministerial circular, and 
 also to draught regulations for the governance of its proposed syn- 
 dicate and jury or tribunal of irrigation. This committee reports 
 at a subsequent meeting, where, at one or more sessions, the prop- 
 
 ' Hee, Ministerial Instruction, June 25, 1884. 
 
COMMUNITY ADMINISTRATION. 497 
 
 ositions of the committee are discussed. Before the final adoption 
 of the ordinance and formation of the community, it is necessary, 
 however, to give another public and general notice, according to 
 the prescribed official form, by publication and otherwise, sum- 
 moning all land owners to appear at the meeting where the final 
 steps are to be taken. The actual presence of the owners or legal 
 representatives of more than half of the property to be included 
 in the community, is necessary to make the meeting valid; and if 
 such majority is not present, another meeting must be called. At 
 these preliminary meetings the voting must be conducted upon 
 the basis of the unit of area of land ownership — that is, by hectares 
 or fractions represented. If it is a question of the formation of the 
 association, and in a case wherein the law does not make such 
 formation obligatory, there must be a majority of land in the dis- 
 trict voted in the affirmative, in order to so decide it. If a ques- 
 tion of simple adoption of an ordinance or regulation, the vote of 
 a majority of the property present is sufficient for adoption. Thus, 
 there being a bare majority of lands in the proposed district rep- 
 resented, and a bare majority of that present being in the affirm- 
 ative on the adoption of the ordinances, such law for the whole 
 district may be adopted by a vote but little in excess of one fourth 
 of the interest involved. But the proper notice having been given, 
 it is considered to be the fault of those who have not attended, 
 that they have no voice in the matter, and so the result must rest 
 until changed in the manner prescribed for such remodelings in 
 the ordinance adopted. 
 
 Having thus organized, a copy of the proceedings in full and 
 the ordinances adopted must be deposited in the office of the 
 municipal council for a term of thirty days, and the fact must 
 be officially advertised, so that all may examine and become ac- 
 quainted with the project and results of the meeting. After this 
 time the ordinances and copies of all proceedings in duplicate, 
 duly certified and attested by the officers of the assembly, are sent 
 by the chairman to the governor of the province. Accompanying 
 these documents must go copies of all objections or protests which 
 may have been filed, and plats illustrating the whole subject. 
 
 The governor of the province must successively consult and ob- 
 tain the opinions of the provincial board of agriculture, industry, 
 and commerce, the chief civil engineer of the province, and the 
 provincial committee, upon the proper outUning and other points 
 32' 
 
498 SPANISH IRRIGA TION LEGISLA HON. 
 
 relative to the formation of the district and association, and these, 
 with his own report, together with all the papers received by him, 
 he must send to the minister of pubUe works for his approval. 
 The minister may approve, and thus end the whole proceedings by 
 sanctioning the formation of the association, but in case he does 
 not approve, the matter must be brought by him before the council 
 of state, by whose advice only can the approval of the ordinances 
 of an irrigation association be refused/ 
 
 SECTION IV. 
 
 Community Administration.^ 
 
 Ordinances of an Irrigation Community. 
 
 Under authority and by direction of the law, the minister of 
 public works has, from time to time, issued instructions concern- 
 ing the general form to be followed in the organization and gov- 
 ernment of communities of irrigators. The last circular of this 
 kind, dated but little over a year ago, is specially complete and ex- 
 haustive of the subject. Having, without doubt, been based upon 
 the best results of all accumulated experience, it probably em- 
 braces the features and forms found to be generally desirable and 
 advantageous. This circular is in five parts: (1) an instruction 
 concerning the steps to be taken in the forming of irrigation asso- 
 ciations; (2) a model form upon which to draw ordinances for 
 irrigation associations; (3 J a model form upon which to draw reg- 
 ulations for syndicates of associations; (4) a model form upon 
 which to draw rules for the government of special courts of irriga- 
 tion; and, (5) a model for the formation of central syndicates on 
 streams where there are several organized communities of irriga- 
 ,tors, each with its special syndicate. The first of these instruc- 
 tions has served as the basis of the paragraphs which hereinbefore 
 appear under the heading, "Forming Irrigation Communities." 
 On the others, together with certain articles of the general law, 
 is based that which follows in this section. 
 
 The model forms of ordinances and regulations themselves first 
 demand notice. They are annexed, for the most part in mere out- 
 
 ' Royal Order ; Administrative decision. 
 
 ■^ t>ee, Beutab61 and Ureta; also, Pardo, laws and regtdations cited. 
 
COMMUNITY ADMINISTRATION. 499 
 
 line, to appendix III. It is diffictilt to think of anything of this 
 kind more complete than are the originals of these documents, for 
 every point appears to have been foreseen and provision made to 
 meet it; but when we remember that they embrace the collected 
 results of long experience and of very many examples, we need 
 not feel surprise at their apparent perfection. It is a significant 
 fact that so much care should have been exercised by the govern- 
 ment in framing these models, and it is the strongest evidence 
 that; while virtually leaving the details of irrigation administra- 
 tion to the irrigators, the government recognizes the necessity for 
 and proposes to exact uniformity in organization, and to retain the 
 general control itself. 
 
 Composition of the Community. — Taking the general model ordi- 
 nance as a basis of what follows; under this heading we find in 
 twenty articles, provision made for the declaration of formation 
 and nomination of those participating in the community; a de- 
 scription of the lands, improvements, and works; a description of 
 the water-rights, sources, and courses; a declaration of the object 
 of organization, and of the fact of individual agreement to it; stip- 
 ulations with respect to withdrawal of members and of entry of 
 new members; specifications with respect to community obliga- 
 tions and powers, and the same with respect to the rights and obli- 
 gations of the individual irrigators and of other users of water who 
 are members; a declaration concerning promptness in payment of 
 assessments, and nomination of penalty for delinquency, and pro- 
 visions with respect to the officers,- their qualifications, terms, gra- 
 tuitous and compulsory service, etc. 
 
 The object of forming an association and the engagement of 
 members to observe its ordinances, as expressed in Article 5 of 
 this model, constitutes the key to the entire Spanish system of irri- 
 gation administration. Substantially and almost in plain terms 
 it says: As the result of centuries of experience in Spain it is found 
 that the diversion of waters from streams and their use in irriga- 
 tion is a most fruitful cause of quarreling and litigation, and so 
 continues to be wherever proper organization and government has 
 not been efifected. This evil is one of such magnitude and so 
 harmful to the general interests, although but a small part of cul- 
 tivated Spain even is irrigated, that the government feels called 
 upon to stop it. To this end four things are necessary: (1) Local 
 organization for constant administration of waters; (2) uniformity 
 of general plan amongst such organizations, and accountability to 
 
500 SPANISH IRRIGA TION LEGISLA TION. 
 
 a central authority; (3) engagement on the part of irrigators to 
 accept such rule and to keep their differences out of the courts — to 
 submit them to summary arbitration by tribunals specially elected 
 for the purpose by themselves, rather than involve them in pro- 
 tracted litigation before courts not so chosen or fitted; and (4) 
 establishment and recordation at once of the actual and relative 
 rights of water users, as a guide and basis for their administration, 
 so that individual rights may be known and respected; and be- 
 cause of the necessity for this, the law has been passed and this 
 model is promulgated. 
 
 Article 6, following in this line, adds force to the implied argu- 
 ment of necessity for organization and submission of individual 
 interests to general welfare, and the inviolability of the compact: 
 irrigators who have become members of a community can not be 
 permitted to withdraw at will. Their act of association must be 
 a compact binding them, on pain of forfeiture of their rights to 
 water, to remain as members and be governed by the will of the 
 majority, as expressed under their ordinances. And, conversely, 
 irrigators or land owners who have not come with others into an 
 association, can not afterwards be permitted lightly to demand 
 entrance, and thus disturb the settled regime of affairs. If there 
 was sufficient reason for them to stay out at first, it is to be pre- 
 sumed that there remains sufficient reason for them to keep out, 
 and, in this view, their entrance may only be attained upon the 
 expressed will of a majority vote in the association as formed. 
 
 Taken in connection with the compulsory formation of associa- 
 tions, already commented upon, this reasoning is very significant. 
 It completes the story of the whole system : system and admin- 
 istration there must be; and it must not only be uniform, but it 
 must be settled and stable, and not easily disturbed. 
 
 But from article 8 it would appear that while rigid, and invio- 
 lable though the system must be, in the details of application it 
 must equally be flexible, else it can not be adopted without hard- 
 ship in many cases, because of great variation in established con- 
 ditions. It would appear from this article that in neighborhoods 
 covered or likely to be covered, even by only one community, there 
 are found established utilizations of water whose bases of individ- 
 ual right differ — some being by volume of water, others by time of 
 flow, others by area irrigated, etc. — and that it is necessary to ad- 
 mit each irrigator upon the basis to which he is accustomed — ^the 
 recognized basis of his rights; or, at any rate, that uniformity of 
 
COMMUNITY ADMINISTRATION. 501 
 
 terms of association in this particular is not so essential to the 
 success of the system as a whole, as to require the adoption of one 
 rule or basis of individual interest to be insisted upon everywhere. 
 
 Still another principle specially worthy of notice we find recog- 
 nized under this heading — ^that of compulsion upon the individual 
 member promptly to meet his engagements to the community. 
 Article 9 of the model ordinance is most direct and sweeping on 
 this point. The irrigator who enters an association under it signs 
 a contract, and pledges his land as security, that he will promptly 
 pay his assessments, or suffer an additional charge of ten per cent 
 per month for time of delinquency, and at the end of three months 
 will forfeit his water if not paid, and that all expense accruing 
 from the proceedings shall be equally a charge against him, sub- 
 ject to summary collection, and without power of appeal to any 
 tribunal other than the special jury of his district. 
 
 Herein we find the same appreciation of the point essential to 
 success in irrigation enterprise, which has been before repeatedly 
 remarked — the necessity for promptness of decision, the cutting 
 short of all disputes, the suppression of grumbling, the rebuking 
 of individual inaction, and the stmimary dealing with individual 
 participants in the common benefit. 
 
 Tforfo 0/ the Community. — Under this heading in the model 
 ordinance, we find a declaration to the effect that there shall be 
 made, and constantly kept posted, a complete descriptive schedule 
 of the works of the community, and another schedule of all works 
 forming part of the irrigation system, which may be the property 
 of private individuals and which should be maintained at their 
 cost and responsibility. This pro-vision, contained in articles 21 
 and 23, shows very clearly, as is the fact, that in Spain, as else- 
 where, grave troubles and complications frequently result from the 
 -want of complete plans and descriptions of works made clearly of 
 record and kept readily accessible. Managers, constructors, and 
 owners of works are changed or pass away; knowledge of much 
 which is familiar to them concerning the works, and trivial though 
 each item may be, is lost with them. Then trouble succeeds. 
 The width of a canal is not of record; the original grantor of the 
 right of way did not care how wide it was made. But now its 
 margins have been built on; land and improvements are valuable. 
 It cuts out its channel from some cause, threatening these im- 
 provements; or its owner desires to widen it, and claims the privi- 
 lege so to do under the old right of way. There is no sufficient 
 
502 SPANISH I R RIG A TION LE GISLA TION. 
 
 record of what was the width of the work, or what it was intended 
 to be. Litigation follows; and more is spent in one such lawsuit 
 than proper plans and descriptions of the works would have cost 
 several times over. This is but one of hundreds of cases which 
 rise out of insuificient plans of works in old regions, and the Span- 
 ish government has carefully guarded its irrigation communities 
 from trouble on this score, as may be seen by reading the articles 
 cited in its model ordinance. 
 
 Exercise of excessive authority on the part of boards of control 
 or other executive officers in charge of great common properties 
 like the irrigation system of a community, is another point which 
 this Spanish model ordinance seems to have guarded. A syndi- 
 cate may order studies and plans of new works, but only the com- 
 munity in general assembly has the power to adopt such plans 
 and order the construction of the work, and a tax levy for a 
 work not thus ordered can be resisted by any member of the com- 
 munity. Even as to the matter of cleaning the works, there is a 
 distinct understanding placed in the ordinance, so that certain 
 cleanings annually are had, and the syndicate has beyond this 
 certain discretion for additional cleanings, but up to a defined 
 limit only. — [Articles 22, 24, and 25. 
 
 As the power of the syndicate is limited with respect to the 
 works, so are the privileges of the individual members clearly 
 defined. No one may do work on any canal or structure without 
 authorization; nor, even, may the owner of the margins of a canal 
 use them except under guide of specifications in the ordinance 
 limiting the character and scope of his utilization. — [Articles 26 
 and 27. 
 
 0/ f/ie Use of Waters. — Under this heading is found in the model 
 ordinance a declaration of individual rights to water, on the basis 
 of the measure of individual^ interest in the community, deter- 
 mined under a former article, the order of use or schedule of turns 
 by which water must be distributed to different individuals, quar- 
 ters of the community, or main distributing works, as the case may 
 be, instructions concerning the distribution of water by the author- 
 ized agents of the community only, and a declaration that no irri- 
 gator need expect preference over his associates because he has 
 chosen to cultivate a crop which may need water more than do 
 theirs.— [Articles 28-32. 
 
 Of the Lands and Manufactories. — Attention is specially directed 
 to articles 34 to 36 of the model ordinance, and under the above 
 
COMMUNITY ADMINISTRATION. 503 
 
 heading. In providing for plats and schedules of lands irrigated 
 or irrigable, and establishments served with water, as is done in 
 these articles, and requiring that they be constantly posted to date, 
 the Spanish government has attested the existence of an expe- 
 rience in Spain which all familiar with irrigation community de- 
 velopment under any system are prepared to appreciate. The 
 absence of proper plans of lands and neighborhoods served is 
 almost always a source of trouble, extravagant service, and waste 
 of water; the manager of works is at sea without a chart when he 
 has no plan of his district, as many are now beginning to appre- 
 ciate to their sorrow in this country. It is to be noted that the 
 Spanish model ordinance is very full and explicit in its provisions 
 under this head. 
 
 O^ Offenses, Indemnities, and Penalties. — Articles 37 to 42, under 
 the above heading, are of interest because they illustrate the work- 
 ing of the special water court, a most important feature, hereafter 
 referred to under a special heading 
 
 Of the General Convention or Assembly. — The articles 43 to 57, 
 under this heading, are most important, but their matter is rele- 
 vant to that under a former subdivision of this report concerning 
 the " Principles of Association," and should be read in connection 
 
 therewith. 
 
 Of the Syndicate. 
 
 The administration of irrigation community affairs under the 
 Spanish system is distinctly separated into two branches — the ex- 
 ecutive and the arbitrative or judicial — which are represented by 
 the syndicates or boards of direction, and the juries or boards of 
 arbitration. 
 
 Article 237 of the general law of waters [see appendix III], 
 very clearly defines the general powers and duties of the executive 
 arm of the administration, and in this connection attention is first 
 directed to it. 
 
 Articles 58 to 66 of the prescribed model ordinance for commu- 
 nities [annexed to appendix III], quite fully explain the organi- 
 zation of and representation on such boards, and the qualifications, 
 distribution, and service of members thereof; and on these points 
 these articles should be here consulted. 
 
 Finally, the prescribed model for regulations to govern a syndi- 
 cate [also annexed to appendix III], enters fully into details on 
 
504 SPANISH IRRIGA TION LEGISLA TION. 
 
 all the points upon which the law and general ordinance touched, 
 and contains other matter worthy of attention. 
 
 In view of much that has been said elsewhere in this report on 
 the subject of syndicate boards, and with the above cited matter 
 at hand for reference, it is not necessary at this point to enter into 
 the subject further than to remark that in Spanish practice it is 
 considered a great honor to be elected a member of the syndicate 
 of one's irrigation community, and that the contaminating influ- 
 ence of party politics rarely finds entrance there. 
 
 Of the Jury of Irrigation. 
 
 The general law of waters devotes the second section of its chap- 
 ter XIII (articles 242 to 247) to juries of irrigation — the arbitra- 
 tive branch of its administrative system for communities. We 
 therein find this feature as a necessary part of the system, and its 
 adoption made compulsory. This is surely a great revolution from 
 the few years ago when, as we have seen, the government declared 
 against such special courts as organized locally in Valencia and 
 Murcia, and put every obstacle in the way of these examples being 
 elsewhere followed; alleging that the system was opposed to the 
 integrity of the judicial system of the country, and not possible to 
 be linked therewith, or at all tolerated. We are not to suppose 
 that this change in sentiment and policy towards special water 
 courts, however, is altogether due to the change in form of the 
 Spanish government and the spread of liberal principles, or that it 
 is even, to any great extent, directly a result thereof, for the true 
 explanation of the change is in the fact that the water courts were 
 formerly opposed because of misapprehension on the part of the 
 ruling powers of the necessities of irrigation in this respect, and of 
 the real nature of the courts themselves. This is but an illustra- 
 tion of a fact which any student of irrigation history and develop- 
 ment will find constantly recurring in the records of the past and 
 experiences of the present: those who do not live in irrigation re- 
 gions rarely appreciate the peculiar demands which this industry 
 necessarily makes for special recognition in the laws of a coun- 
 try, and are seldom capable of conceding freely to it the simplest 
 of its requirements, from the fear that some established right is 
 to be invaded, or custom set aside. 
 
 The object and purpose of the jury of irrigation in the Spanish 
 system, as gathered from the articles above cited, is: to have de- 
 
COMMUNITY A DMINISTRA TION. 505 
 
 cided promptly and inexpensively the thousand and one questions 
 which arise in the distribution and use of water — to relieve irri- 
 gators of expense of litigation, and irrigation from its curse. 
 
 We find in the model community ordinance as prescribed by 
 the administration, articles 68 to 72, devoted to the organization, 
 etc., of such juries, the qualifications of their members and pro- 
 vision for a special regulation to more clearly define their powers 
 and duties. And, finally, the model for the regulation itself leaves 
 nothing to be supplied in explaining its working. 
 
 Of General Syndicates. 
 
 In this feature of the Spanish irrigation administrative system, 
 we have the guiding principle carried to its extreme in applica- 
 tion. Local government is herein applied to the management of 
 the distribution of waters from natural streams to those who have 
 rights therein. Article 241 of the general law (see appendix III) 
 plainly states that " when on the course of a river several com- 
 munities and syndicates exist, they may form for their mutual 
 convenience one or more central or common syndicates, for the 
 defense of the rights and the maintenance and protection of the 
 interests of all; and it shall be composed of representatives of the 
 communities interested." 
 
 Now, it is a most noteworthy point that this article virtually 
 puts, if the government so elects, the control of distribution from 
 natural streams into the hands of the representatives of such users 
 ■of waters only as are organized into communities. It should be 
 carefully noted that neither private or individual utilizers from a 
 stream, nor companies or others engaged in the distribution of 
 waters for sale or rental, are given any such privileges. In fact, 
 Tvere claimants of the several named classes located on the same 
 stream, under the Spanish law the community representatives 
 would control the division of the waters from it, to the exclusion 
 of the individual or company claimants, whose protection would 
 be had through tjie general administrative authorities. 
 
 Going further, the last paragraph of article 241 provides that 
 ■" the number of representatives which may be nominated " to the 
 central syndicate " shall be proportioned to the extent of irrigable 
 land embraced within the respective boundaries " of the several 
 irrigation communities on the stream. Thus, the proportion of 
 control accorded is in direct ratio to the extent of irrigation sys- 
 
506 SPANISH IRRIGA TION LEGISLA TION. 
 
 tematized according to the prescribed governmental regulations. 
 This is setting a high premium on irrigation enterprise by the own- 
 ers of land, and systematic organization and self government by 
 the irrigators, as against enterprise by companies or others who 
 distribute water for sale or rental to the lands of others. But let 
 it not be supposed that rights of this class are not fully protected. 
 The government has chosen to allow representatives of irrigation 
 communities, formed into central syndicates, to apportion their 
 waters from streams to their communities, but the streams have 
 not been turned over to them unreservedly. As a matter of fact, 
 it is only by implication, and in cases where the government re- 
 frains from taking charge of the division of waters from the streams, 
 that these central syndicates have anjr right of control over the 
 waters in their natural channels. The law directly accords no 
 such power. It simply says that central boards may be formed 
 where more than one organized community derives its water from 
 one source of supply, and that the purpose of the forming is " the 
 defense of the rights and the maintenance and protection of the 
 interests of all." Neither is there any direct mention in the pre- 
 scribed model ordinance for communities, nor yet in the model 
 regulation for central syndicates, of any power or duty connected 
 with distribution of waters from the natural streams. 
 
 The second paragraph of the article 241 of the general law gives 
 authority to the minister of public works, and to the governors of 
 provinces, to order the formation of central syndicates " when the 
 interests of agriculture demand it." From this we may infer, as 
 is the fact, that the government has found it well to enforce local 
 organization on a broader plan than that of the single irrigation 
 community, in order to preserve harmony amongst users of water 
 otherwise independent of each other, by providing means of inter- 
 course, and of preventing and adjusting conflicts between them, of 
 whatever nature, arising out of their irrigation practice. 
 
 And the ultimate fact is, that where such central syndicate is 
 formed, whether voluntarily or under orders from the administra- 
 tion, the authorities leave to it the detail of management of the 
 division of waters from the natural stream to the several commu- 
 nities according to their rights. But the government has sacri- 
 ficed in no way its complete control over the streams, nor does it 
 in practice leave them wholly to any local organization. 
 
 In conclusion of this subject, attention is directed to article 67 
 of the model ordinance for community organization, which is in 
 
COMMUNITY ADMINISTRATION. 507 
 
 substance a mere repetition of the article already cited from the 
 general law; and also to the model for a regulation to govern cen- 
 tral sydicates, annexed to appendix III. 
 
 AUTHORITIES FOR CHAPTER XXI. 
 
 Bentdb6l and Ureta. — [Work cited as an authority for Chapter XIX.] See, head- 
 ings "Attributes of the Administration," "Jurisdictions of the Courts," 
 "Appeals," "Jurisdictions," and " Communities of Irrigators." 
 
 Pardo.— [Work cited as an authority for Chapter XIX.] See, general law of 
 waters. 
 
 Jymai'd.— [Work cited as an authority for Chapter XIX.] See, Chapters II and 
 XXI, and parts cited for Chapters XVII and XVIII of this book. 
 
 Cyclop. Pol Sci. — "Cyclopedia of Political Science." By John J. Lalor; 3 vols., 
 Chicago, 1884. See, article " Spain." 
 
 Amer. Enc. — " New American Encyclopedia." See, article " Spain." 
 
 Johnson. — "Johnson's Encyclopedia." See, article " Spain." 
 
 Martin.— "The Statesman's Yearbook" for 1883. By Fred. Martin. London. 
 See, article " Spain." ' 
 
508 SPANISH IRRIGA TION LEGISLA TION. 
 
 OHAPTEK XXII.-SPAIN' 
 
 ■"), 
 
 GOVEENMENTAL POLICY AND lEEIGATION EUTEEPEISE. 
 
 Section I. — Past Piomotwn q/ Irrigation. 
 
 Ancient Policy and Works, to 1759. 
 Commencement of Modern Policy— 1759-1833. 
 Policy of the Moderate Constitutionalists— 1833-1868. 
 Liberal Policy of the Eegency— 1868-1875. 
 
 Section 11.— Present Policy of Spain. 
 
 The Laws Now in Force. 
 Subsidies and Exemptions Oflfered. 
 Examinations — Applications— Auctions. 
 Terms of Concessions. 
 
 Section III. — Recent Irrigation Enterprises. 
 
 Notable Concessions — Canals. 
 Notable Concessions— Reservoirs. 
 
 SECTION I. 
 
 PROMOTTfiN OF Irrigation i.\ Spain. 
 
 Ancient Policy and TForts.' 
 
 The construction of several existing works of irrigation in cen- 
 tral and northeastern Spain has been attributed to the Romans. 
 Others in these quarters are dated from various times during the 
 eleventh to thirteenth centuries, and accredited to the Spaniards. 
 But the greater number of works and most successful irrigations 
 at that time, existed in the south and east quarters, and were the 
 developments of the Moors. 
 
 During the early part of the thirteenth century James I of Ara- 
 gon, taking great interest in irrigation matters, paid special atten- 
 tion to the management of the works throughout the province of 
 Valencia, conquered from the Moors, and constructed there the 
 
 ' See, Llauriido; also, Aymard. 
 
PROMOTION OF IRRIGATION. 509 
 
 Royal Jucar canal, whose administration has been described in a 
 former chapter. It may be supposed that he had much trouble 
 with these properties. The irrigators from the old systems fretted 
 under the restrictions placed on them, and demanded control 
 of the works, like, it was alleged, their ancestors had under the 
 Moors. As we have seen (chapter XVI, ante), the canals and 
 waters were finally deeded over to them by this monarch, they 
 were left free to form their own administration, and it resulted 
 that the Royal canal was, at a later date, given to the owners of 
 its dependent lands, on somewhat similar terms. 
 
 This example was followed by the succeeding kings of Aragon, 
 and also by those of Castile, so that the works found in almost 
 every valley opening to the east and south of the peninsula were 
 turned over to the irrigators under them, or to the municipalities 
 within whose political jurisdiction they were situated, either to 
 manage without interference by the general government, or upon 
 some plan which divided the responsibility and authority. 
 
 These acts were generally confirmed by the first rulers of re- 
 united Spain in the last part of the fifteenth and first part of the 
 sixteenth centuries. During this same period were commenced 
 at government expense, by Don Juan of Navarre, the royal canal 
 of Aragon, and also that of Tauste, in the valley of the Ebro; and 
 other important acts of encouragement to irrigation were author- 
 ized. Sohcitude for the development of home resources continued 
 through this and the following reign, but was cut short by the 
 ambition of Charles I (1517-1557) for conquest and acquisition of 
 territory in America. His successor (Philip II; 1557-1598) laid 
 aside war and had the satisfaction of seeing completed in his day 
 a number of large irrigation works, chief among which are the 
 great stone reservoir dams of Alicante, Elche, Almansa, and Ar- 
 anjuez. During the three succeeding reigns (1598-1700) Spain 
 passed through a period of depression and financial embarrass- 
 ment, and only a few minor works of irrigation were inaugurated. 
 Following this (1700-1746) the desires of the first king of the 
 house of Bourbon to obtain the' good will of the people, led to a 
 series of abortive attempts to carry forward work on the royal canal 
 of Aragon. 
 
510 SPANISH IRRIGA TION LEGISLA TION. 
 
 Commencement of Modern Activity} 
 
 It was not until the fertile reign of Charles III (1759-1788) that 
 the government again gave a vigorous impulse to irrigation. Dur- 
 ing this reign the great royal canal of Aragon was completed, the 
 two immense stone dams of Lorca were built (one of them being 
 the highest in the world) , the royal canal of Castile was in large 
 part constructed, all at national expense, and other great and im- 
 portant projects were conceded, upon what were considered most 
 liberal terms, to companies, associations, and municipalities. The 
 last part of the eighteenth and first part of the present century 
 again brought great embarrassments and embroilments in Spain, 
 so that there ^yas no other notable encouragement to irrigation, 
 except that in 1788 the corrigidores, or executive magistrates of 
 the towns, were instructed by royal order to do all within their 
 power to encourage the use of public waters in irrigation, both by 
 private enterprise and by community or municipal action.'' 
 
 Before his accession to the throne, Ferdinand VII (1814-1833) 
 made protestation of great interest in agriculture, and promised 
 much for irrigation, but as he disappointed the constitutionalists 
 by his overthrowing their work, so did he fall short of fulfilling 
 the hopes of the votaries of general irrigation and liberal man- 
 agement of irrigation practice. Nevertheless, under his rule the 
 Koyal canal of Castile was considerably prolonged at government 
 expense, the great canal of Castanos (Infanta) received govern- 
 mental aid and was completed, and the canal of Urgel was pushed 
 forward by the municipalities whose lands it was to fertilize. But, 
 above all, " with the object of promoting agriculture," all munici- 
 paUties, communities, companies, corporations, or private individ- 
 uals who, in virtue of a concession from government, should bring 
 dry lands under cultivation by irrigation, were promised exemp- 
 tion from any increase of tax thereon, over and above that pre- 
 viously levied on them in their dry condition, to the time of and 
 for twelve years after their first full harvest following irrigation." 
 
 ' See, Llaurado, Aymard, and Wallis. 
 
 ^ Nov. Rec. 
 
 ' Royal Decree, August 31, 1819. 
 
PROMOTION OF IRRIGATION. 511 
 
 Policy of the Moderate Constitutionalists} 
 
 Next came the reign of Isabella, the period of constitutional 
 development and supremacy, as sketched in chapter XIX, ante. 
 Within this time the policy of government, in the way of encour- 
 agement to irrigation, took a final turn, from that of construction 
 of works at national expense, to the direct subsidizing of irrigation 
 enterprises. I first abstract the general laws of the reign, upon 
 this subject. 
 
 By a law of 1849^ all capital which might thereafter be invested 
 in irrigation canals, ditches, or dams of derivation, in accordance 
 with governmental permits, as well as the rents or incomes re- 
 turned thereon, was declared exempted from every tax or impost 
 for ten years after the completion of the works in each case. 
 
 The lands which should be irrigated by means of such works 
 were in like manner exempted from any increase in tax assess- 
 ment for the same period. 
 
 And these benefits were extended, also, to such capital as might 
 be invested in works for the discovery of waters — as artesian wells 
 or ordinary wells — under governmental authorizations, and to the 
 lands irrigated by waters thus brought to the surface.'' 
 
 In 1861 an appropriation of one hundred million reals ($12,500,- 
 000) was made by law, to be devoted to the encouragement of 
 agriculture; but the movement was not made complete until 1865, 
 when was passed a law prescribing the manner in which this 
 money was to be applied. Under these directions two thirds of 
 the whole amount was to be issued in loans, in sums to suit, to 
 land proprietors who should use it in the construction of works to 
 irrigate their properties; and one third was to be granted in sub- 
 sidies to capitalized enterprises for the construction of irrigation 
 canals and reservoirs, and drainage or reclamation works. 
 
 The loans could be made by ministerial recommendation and 
 royal decree, without the necessity of further enactment of law, 
 to land owners individually or as organized into associations or 
 communities, upon terms prescribed in the law and under condi- 
 tions set forth more fully in a general governmental regulation on 
 the subject, and as fast as the money should be recovered into the 
 treasury it was to be again available for like disposition. 
 
 ' See, Pardo, Llaurado, and Wallis. 
 
 '' Law of June 24, 1849, Encouragement to Irrigation and bervitude ot Aque- 
 duct; Pardo, p. 148. 
 
51 2 SPANISH IRRIGA TION LE GISLA TION. 
 
 The subsidies were to be granted in each case only by virtue of 
 a special law of the cortes, sanctioning the proposed scheme and 
 terms of the contract. In such cases the government voluntarily 
 or by request examined the project, revised the plans and esti- 
 mates, determined the proportion of the cost it would advance, or 
 sum total of its subsidy, and then advertised the proposition for 
 bids. The company or person, etc., who would undertake the 
 scheme on the proposed conditions and allow the greatest rebate 
 on the governmental subsidy was awarded the concession, and 
 then the proposition was submitted to the cortes for ratification. 
 Such subsidies were to be paid, in the case of irrigation enter- 
 prises: one third when the canal excavation should be finished; 
 one third when all the main works were completed; and the other 
 third after the distribution of waters should be effected. 
 
 Land proprietors might organize as companies to irrigate their 
 own lands, avail themselves of the benefits of the law in the mat- 
 ter of subsidy, and then issue bonds to raise money for the works, 
 up to two thirds the taxed value of their lands. 
 
 When the works were to be carried out by a company not own- 
 ing the lands it might issue obligations under the general law of 
 public works .^ 
 
 By virtue of the general law of waters of 1866, all capital in- 
 vested under it in works of irrigation was exempted from taxation 
 forever. Grantees of concessions were authorized to enter upon 
 the public domain and take thence, freely, whatsoever material 
 might be obtainable there; and to enter upon private lands, by 
 virtue of the power of eminent domain, and condemn to their use, 
 in the manner prescribed by law, such property or material as 
 might be necessary for the works. And there were other benefits 
 and privileges less important than those above, but still material 
 to canal constructors. 
 
 Lands brought. newly under irrigation by virtue of such works 
 were declared exempt for ten years after irrigation should be ef- 
 fected, from increase of tax assessment over their valuation prior 
 to the commencement of the works. This was a benefit to land 
 owners, which enabled them to offer some direct inducement to 
 a company contemplating the irrigations, or which, in other in- 
 stances, was calculated to encourage them to combine, themselves- 
 to effect the irrigation of their lands. 
 
 ' Law of June 11, lSl.i5 ; Wemoria, etc., 1864-1866, p. 12. 
 
FORMER GOVERNMENTAL POLICY. 513 
 
 In all cases, whether the concession was made to a company or 
 to a community, all lands within the district were obliged to pay 
 for water when brought to them, at the stipulated rates, or, failing 
 in this, to sell their lands to the company or association at fifty 
 per cent advance on their assessed valuations previous to irriga- 
 tion. Should the company not choose to take lands at this rate, 
 however, the owners might thereafter use and pay for water, or not, 
 as they chose. 
 
 All concessions embodying the above benefits or any subsidy to 
 companies were to be put up at auction, and sold to the bidder 
 who allowed the greatest rebate on the benefits, to the government, 
 and every grantee was required to deposit a sum equal to one per 
 cent of the gross estimated cost of completed works, as a guaranty 
 of his good faith.^ 
 
 This law was continued in force until 1879, when was passed 
 another upon the same model and containing provisions somewhat 
 similar to the above, as we shall see hereafter. 
 
 In the matter of works, during this reign of Isabella, the most 
 important were the completion of the Royal canal of Castile, which' 
 was intended for transportation much more than for irrigation, at 
 government expense; the construction of the great Lozoya ma- 
 sonry dam and the canal thence for the water supply of the na- 
 tional capital and irrigation in its vicinity, chiefly by subscription 
 or subsidy from the city of Madrid; the construction of the great 
 canal of Urgel, in the northeastern quarter, by an association of 
 land owners assisted by government subsidies; and, of the Hen- 
 ares and Esla canals, by the Iberian Irrigation Company — a 
 corporation of English capitalists organized to operate in the con- 
 struction of irrigation works throughout Spain, under the laws 
 subsidizing irrigation enterprise. These are but a portion of the 
 large enterprises undertaken in this time, while of small works 
 there were very many carried out by private individuals and asso- 
 ciations of land owners, who availed themselves of the benefits 
 and immunities which the foregoing laws offered. 
 
 Liberal Policy of the Regency.'' 
 
 Under the constitutional government and the regency of Ser- 
 rano, and just prior to the accession of Amadeus to the throne, the 
 
 ' See, Memoria, etc., 1864-1866, p. \i,et seq. 
 ' See, Pardo, Llaurado, and Wallis. 
 
 » 33' 
 
514 SPANISH IRRIGA TION LEGISLA TION. 
 
 cortes passed and the regent promulgated, an important law con- 
 cerning concessions to companies and persons for the construction 
 of irrigation canals and works of water storage/ This law was 
 continued in force during the succeeding reign and until 1883, 
 and a large number of imjjortant concessions were made under it. 
 
 Its object was "the encouragement of the use of public waters 
 in irrigation." All companies or individuals who should organize 
 and carry out works under a concession embodying its conditions, 
 to water the lands of others, were granted, by way of subsidy, the 
 full amount of the increased tax revenue to be derived from lands 
 irrigated, to a gross amount of 150 ^pesetas per hectare (1.21 dollars 
 per acre). This payment to begin two years after irrigation com- 
 menced, and to continue until the amount was made up, and 
 thereafter to continue three full years more by way of indemnity 
 for interest on capital during the period of construction. 
 
 Those who availed themselves of this law were required to de- 
 posit in the Bank of Spain, as a guaranty of good faith, a sum 
 equivalent to two per cent of the gross estimated cost of the entire 
 system of works. During the course of construction this amount 
 was to be paid back in installments proportioned to work done. 
 In case of failure to carry out works, this deposit was to be for- 
 feited, and the works were to be sold at auction for the benefit of 
 the creditors and grantees. All works projected under this law 
 for the irrigation of more than 200 hectares (494 acres) were to be 
 declared of public utility and entitled to the exercise of the power 
 of eminent domain. 
 
 Capital invested under the law was declared forever exempted 
 from all taxation except a net income tax. All lands irrigated 
 under the law were to be exempted from the stamp tax on the 
 first sale or transfer of ownership made after their irrigation should 
 be effected. Owners who carried out works for the irrigation of 
 their own lands were allowed, as under the law of 1866, the ex- 
 emption from increase of tax assessment for ten years; but, under 
 the foregoing provision of this law of 1870, those lands irrigated 
 by works of capitalized companies were subject to assessment 
 without the above exemption. 
 
 ' Law of February 20, 1870; Pardo, p. 260. 
 
FORMER GOVERNMENTAL POLICY. 515 
 
 Study of Water Supply.^ 
 
 In order to acquire information concerning the water supply of 
 the country, and obtain data upon which to study the arterial 
 drainage problems of the great river valleys where disastrous 
 floods sometimes occurred, the government, in 1863, instituted an 
 extensive hydrological study of the entire kingdom. It was or- 
 dered: that on the midstream pier of every road bridge constructed 
 across the principal rivers and their affluents throughout the coun- 
 try, a gauge rod should be afiSxed; that records of the rise and 
 fall of the waters should be made by readings on these rods, under 
 the direction of the engineers of the provinces; and that for each 
 province these should be brought together and recorded in an offi- 
 cial book. 
 
 At periods of flood and of low water the flow was to be noted 
 with special care. The approach of flood waves was to be observed 
 and their progress studied, in order that danger might be foretold 
 and warnings published. 
 
 The provincial engineers were ordered to collate the results of 
 these observations annually, in tables showing the movement of 
 the waters and the periods and volumes of high and low water 
 flow, illustrating these phenomena by diagrams of curves repre- 
 senting the rise and fall of the waters, and to transmit the same 
 with a report to the central board of engineers of public works; 
 and it was ordered that the outcome of these studies should be 
 digested and published every five years, together with discussions 
 as to the causes and results of the various extreme phenomena of 
 flood and drought. The expense of these observations was to be 
 met with moneys from the general appropriation for waters, rivers, 
 and canals, placed at the disposal of the minister of public works. 
 
 Pursuing the subject still further, and this time more immedi- 
 ately in the line of the water supply for irrigation, in 1864 the 
 consulting council of the government civil engineering department 
 was directed to formulate a programme which should serve as 
 " the basis of a hydrological study of the great river basins of the 
 Spanish peninsula, in order that, understanding them, the data 
 relating to the quantity and elevation of their waters, and the 
 minute details, as to the course of the streams, the height and 
 character of their banks, their slopes, cross sections, and profiles 
 
 ' See, Memoria sobre las Obras Publicas, 1864r-1866. 
 
516 SPANISH IRRIGA TION LE GISLA TION. 
 
 may be at hand, and that the importance of having the mentioned 
 data, in order to regulate the appropriation of waters and foster 
 the interests of agriculture and the increasing industries of the 
 country, may be realized." 
 
 Still again, in 1865, " to give a new and vigorous impulse to the 
 hydrological studies of the territory of the peninsula," the country 
 was marked out into ten hydrographical divisions, according to 
 its topography and great water-shed areas; and the results of the 
 study of its water supply and flood phenomena were ordered to be 
 formulated according to these governing natural features. 
 
 In January, 1866, all local governments, and local and govern- 
 mental functionaries whose duty imposed upon them, under the 
 laws and customs of the country, the expression of opinion or reg- 
 ulation of actions relating to the ' appropriation of waters, were 
 called upon to report to the central government, clearly and mi- 
 nutely, setting forth their views on the subject of the water supply 
 and the opposition on the part of private individuals to the sys- 
 tematizing of water-right affairs, assigning the reasons for such 
 opposition, for the guidance of the general board of public works. 
 
 The policy of government has steadily progressed in the line of 
 the hydrological study, and there have been a number of decrees, 
 orders, and circulars issued during the time from 1866 to the 
 present, following up the commencement made as above, and a 
 great amount of field work has been accomplished under them. 
 So that now the water supply study has come to be a permanent 
 institution of the country. 
 
 SECTION II. 
 
 Present Irrigation Policy of Spain. 
 
 Laws now in Force} 
 
 All the water and irrigation laws and measures of the former 
 reign, of which the last subdivisions of the preceding section treat, 
 continued in force during that which followed and now just closed, 
 until some of them were set aside by those yet in force. These 
 latter are the general public works law of 1877, the general water 
 law of 1879, and the law of irrigation concessions of 1883. 
 
 The law of 1877 systematized the matter of public works in ac- 
 
 ' See, Pardo; also, Bentab61 and Ureta. 
 
PRESENT NATIONAL POLICY. 517 
 
 cordance with the provisions of the national constitution which 
 had been adopted the previous year. [See p. 436, ante,.\ By it 
 pubHc works are classed in two groups: the first, those of general 
 utility, embraces roads, railroads, ports, lighthouses, great canals 
 for irrigation and navigation, and works relating to the manage- 
 ment, utilization, and police of waters, improvement of rivers, 
 reclamation, and drainage; the second embraces buildings for the 
 use of the state, a province, or a municipality. Within these 
 groups are sub-classes of works, the exclusive charge of some of 
 which is reserved to the national government, that of others to the 
 provinces, and the care of others is accorded to the municipalities. 
 The immediate control of works of a fourth and verj' large class of 
 the first group, may, according to circumstances, be retained by 
 the state, a province, or a municipality, or may be given over to 
 private individuals, communities, or companies. Of this class are 
 irrigation, drainage, and river works. 
 
 To the state is reserved the control of canals of irrigation and 
 navigation wholly paid for with national funds, and all national 
 river works; and also the prescribing or approval of measures of 
 police and administration of the use of public waters and streams 
 in all cases. The provinces each have administrative control of 
 works of navigation and irrigation pertaining solely to their sev- 
 eral territories and those paid for by their funds. And the towns 
 control works for the supply of their people with water. 
 
 The state may accord to a private individual, association, com- 
 munity, company, municipality, or province the privilege of con- 
 ducting any enterprise which would come under its control. A 
 province may accord to individuals of either class of grantees 
 named a privilege to carry out a work otherwise provincial. And, 
 in like manner, a municipality may delegate its right of construc- 
 tion and immediate control of municipal waterworks. But neither 
 the state, a province, nor a municipality can forfeit its right of 
 ultimate administrative supervision and regulation of works and 
 waters. 
 
 In conceding to others its right of construction and immediate 
 management of works of its class, the state, a province, or a mu- 
 nicipality may agree to assist in the work. 
 
 All general government works must be let by contract, as will 
 hereinafter be explained.' The conducting of provincial and mu- 
 nicipal works is controlled by laws of the provinces. 
 ' See, Law of Public Works, Articles 74, et seq. 
 
618 SPANISH IRRIGA TION LEGISLATION. 
 
 No money subsidy can be agreed to in a concession unless an 
 appropriation for such class of expenditure shall have been em- 
 bodied in the administrative estimates, and passed by the cortes; 
 and each concession with a money subsidy or premiums attached 
 has to be sanctioned by a special law after the auction of the con- 
 cession and the preliminary agreement, hereafter to be explained, 
 shall have been consummated. 
 
 The water law of 1879 repealed that of 1866, but left in force 
 the public works act of 1877, under whose general provisions with 
 respect to works, companies, concessions, subsidies, and exemp- 
 tions, it prescribes certain details of governmental policy specially 
 relating to irrigation, navigation, etc. 
 
 The law of 1883 relates exclusively to terms of concessions for 
 and subsidies or other gratuities to irrigation enterprises. It re- 
 pealed the law of 1870, and modified the public works law and 
 the general law of waters in some particulars relating to subsidies, 
 but otherwise left these two latter statutes in force. 
 
 Subsidies and Exemptions Offered? 
 
 The public works law defines a subsidy as " any direct or indi- 
 rect assistance from public funds." Which includes exemptions 
 from customs duties on articles or machinery imported for con- 
 struction, maintenance, or operation of works; exemptions or par- 
 tial exemptions from taxes or increase of taxable valuations of 
 works, capital, income, lands, or improvements; power to collect 
 rates for which a direct return is not made; contributions of 
 money; and gifts of lands; all of which forms of assistance gov- 
 ernmental action has at times extended to irrigation enterprise. 
 
 Special exemptions in the nature of subsidies, to authorized con- 
 structors of canals of irrigation, are found in articles 194 and 198 
 of the general law of waters; and subsidies of the same class are 
 ofiered to owners of lands who themselves construct works for their 
 irrigation, in articles 195 and 199. It will be noticed that these 
 subsidies are similar to those offered by the law of 1866, already 
 abstracted. — [See appendix III. 
 
 The law of 1883 says, that the state may help in the construc- 
 tion of canals and reservoirs of public interest, which require spe- 
 cial authorizations, when the volume of water to be furnished by 
 them is at least equivalent to a continuous flow of 200 litres per 
 
 ^ Same reference as for preceding subdivision. 
 
PRESENT NATIONAL POLICY. 519 
 
 second. The assistance will consist of a money subsidy not to 
 exceed thirty per cent of the estimated cost of the main works 
 and principal distributaries, including dams or other structures 
 for storage, control, conducting, and letting out the water; and, 
 furthermore, in a premium not to exceed 250 pesetas for each litre 
 (1,415 dollars for each cubic foot) per second of continuous flow 
 that the canal or reservoir can furnish in irrigation. But in no 
 case may the total amount of subsidy exceed forty per cent of the 
 actual cost of the establishment of the irrigation, plus one hun- 
 dred pesetas per hectare (8 dollars per acre) of the land irrigated. 
 And the government reserves the right to expend under its own 
 immediate management, the moneys of the first named subsidy 
 on such of the works as may be considered specially difficult of 
 construction. 
 
 The subsidies proper are ordinarily to be paid by installments 
 upon the completion of certain sections or divisions of the works, 
 in proportionate parts of the whole, as shall have been agreed 
 upon and stipulated in the articles of concession. The premiums 
 are to be paid as the irrigation is actually effected or water deliv- 
 ered for the purpose, within maximum limits per year which may 
 have been previously fixed in the concession, and in no case may 
 the amount in any one year exceed the fifth part of the total of 
 premiums due to all irrigations under the work. 
 
 Neither increase nor reduction in the cost of a work, resulting 
 from modifications in its plan, notwithstanding official approval, 
 can change the amount of its subsidy, unless its delivery of water 
 shall have been augmented or diminished. In this case the sub- 
 sidy may be made proportionately more or less. 
 
 By special understanding and arrangement an enterprise may 
 be subsidized, not only by the state, but also by a province or a 
 municipality or both. 
 
 When communities of irrigators, constituted according to the 
 law of waters, wish to construct canals or reservoirs to irrigate 
 their lands or to improve their existing irrigations, whatever may 
 be the quantity of water delivered, agreeing in due form to defray 
 one half the expense, according to a scheme officially sanctioned, 
 the government will grant the concession to them, and will subsi- 
 dize the enterprise to the extent of 50 per cent of the estimated 
 cost of all main works. The subsidy will be paid by the govern- 
 mental execution of a proportionate part of the works, choosing 
 always those the most difficult and important. 
 
520 SPANISH IRRIGA TION LEGISLA TION. 
 
 Moreover, the government will advance to such community, as 
 a loan, 50 per cent of the cost of secondary canals and of commu- 
 nity distributing ditches, and of the preparation of community 
 lands for irrigation. The amounts thus advanced, to be regained, 
 with 3 per cent per annmn interest, by a tax on the lands irri- 
 gated, fixed and agreed upon at the time of the concession. 
 
 Simple associations of proprietors, not necessarily formed into 
 a community under the law, may, on the presentation of a proper 
 mortgage bond, also claim the benefits above accorded to regular 
 communities. But no such community or association can claim 
 the premium on irrigation efiected, which is offered to canal or 
 reservoir companies as heretofore explained. 
 
 Examinations — Applications — Auctions} 
 
 Under the general water law, when provincial diputacions, sjm- 
 dicates of land owners, or communities, municipalities, national 
 or foreign companies, or private persons apply to the minister of 
 public works for the examination of a project for a canal or reser- 
 voir of irrigation, he will order the necessary surveys, examina- 
 tions, estimates, and plans to be made by the governmental civil 
 engineers, when the public service will admit of a detail for the 
 purpose, provided the petitioners agree to pay the expense of such 
 work upon terms prescribed by him. — [Art. 201 — appendix III. 
 
 The forms of and data to be furnished with all apphcations for 
 concessions, are specified in the general water law [article 189], 
 and certain conditions are stipulated with respect to available 
 water supply, etc. [articles 190-191]. The law of 1883 treats of 
 this subject more particularly. It says: " Each concession that is 
 to be subsidized under this law shall be solicited, formulated, and 
 determined upon conformably to the following prescriptions: 
 
 " There will be presented with the apphcation a complete study 
 of the project, showing the whole irrigable district, the gaugings of 
 the volume of water available, the estimates of cost and speciSca- 
 tions, the maximum rates to be charged annually for irrigation, 
 per litre per second of flow, with tables of equivalents per hectare 
 in different classes of cultivation, and an exhibit of the probable 
 utility of the enterprise. And these shall be accompanied by the 
 written agreement of the proprietors of more than half the lands 
 in the district, under which they are obliged to take water at 
 prices that do not exceed those expressed in the application." 
 
 ' Same reference as for preceding subdivision. 
 
PRESENT NATIONAL POLICY. 521 
 
 The administration then orders its inquiry or investigation, 
 which is extended and formal, calling in the services of an exam- 
 ining and a consulting engineer, the provincial authorities, the 
 consulting board of roads, canals, and ports, and the council of 
 ministers, to advise the minister of public works, under whose 
 immediate charge the proceeding is had. 
 
 If it is determined to grant the concession and subsidize the 
 enterprise, the plans and estimates are definitely fixed upon, the 
 proportion of the cost to be borne by the state and rate of its pay- 
 ment are stipulated, and a provisional agreement. is drawn up. 
 The concession is then offered at public auction. Each bidder is 
 required first to deposit, as a guaranty of good faith, in the govern- 
 ment treasurj^, an amount of money equivalent to five per cent of 
 the gross estimated cost of the works; and each of those who has 
 not been the author of the scheme and paid for its examination, 
 is required to deposit an additional amount sufficient to cover the 
 cost of the same and to reimburse the author for his labors, as 
 shall have been previously determined upon. The auction then 
 goes on, and the concession is awarded to the bidder who agrees 
 to carry out the enterprise with the least amount of money sub- 
 sidy. If the offers should be equal on this point, the award is 
 made to the bidder who agrees to reduce the premium the most. 
 And if equal in this, also, to' him who places the tariff for irriga- 
 tion at the lowest rates. Finally, the successful bidder is required 
 to furnish within fifteen days from the award, a bond for ten per 
 cent of the gross estimate, which is to be held until the work is 
 completed, while his cash deposit is returned to him in install- 
 ments as the work progresses. 
 
 Terms of Concessions.^ 
 
 Such concessions are made for terms of ninety-nine years. The 
 time is specified within which each section of the work is to be 
 completed. Forfeits are predetermined and agreed to for partial 
 failures. Extensions of time are granted only when unforeseen 
 natural circumstances are the cause of delay. Concessions are 
 forfeited upon non-comphance with conditions. Such forfeiture is 
 declared by the minister, and the enterprise and works are sold 
 at auction for the benefit of creditors, and the grantee. 
 
 Same reference as for preceding subdivision. 
 
522 SPANISH IRRIGATION LEGISLATION. 
 
 Companies or individuals, etc., having concessions of this char- 
 acter are required to pay taxes on the lands owned by them, but 
 under the general law of waters their capital and works are ex- 
 empt from taxation. 
 
 The law 6f 1883 closes with a number of provisions relative to 
 the adjusting of benefits under it, to concessions obtained under 
 former laws, and also recognizes the existence of subsidies under 
 the law of 1870. So that as a matter of fact there may be enter- • 
 prises subsidized under both laws, though not to the full extent 
 allowed by either. 
 
 The duties and privileges of grantees and obligations of irriga- 
 tors are set forth in articles 196 and 197 of the general law of wa- 
 ters, to which attention is here asked. — [See appendix III. 
 
 SECTION III. 
 Notable Irrigation Enterprises.' 
 
 In closing this account of the policy of Spain towards the irriga- 
 tion interest, I present, as an exhibit of the extent to which the 
 subsidy system has been applied, a tabulated statement of all the 
 principal concessions which have been granted, with direct subsi- 
 dies from the general government, under the laws of 1849, 1865, 
 1866, and 1870, up to the passage of the present general water law 
 in 1879, and which were at that time in good standing. In addi- 
 tion to these, about half as many more important concessions had 
 been made but were forfeited; a larger number of small conces- 
 sions were registered and in good standing; and a very large num- 
 ber of small, individual, or association works had been carried out 
 imder the provisions of law which exempted the dependent lands 
 from increased tax rating for ten years after irrigation. 
 
 Some of the following named projects were old or partly built 
 works, for the enlargement, extension, or completion of which these 
 concessions were made. But most of them were entirely new enter- 
 prises which the subsidy system brought into being. There are 
 no statistics at hand of the application of the subsidy features of 
 the laws of 1879 and 1883. 
 
 ' See, Bentab61, and Ureta. 
 
IRRIGATION ENTERPRISES. 
 
 523 
 
 Notable Irrigation Concessions — Canals. 
 
 Name of the 
 Canal. 
 
 Karnes of the Sup- 
 plying Rivers. 
 
 Provinces Wliere 
 Situated. 
 
 a 
 1 
 
 s 
 s 
 
 Iff 
 
 2 02 
 
 g S B 
 
 g.g:? 
 1 s? 
 
 
 ihS. 
 
 1 
 
 1 
 
 Aragfin and 
 Catalufia 
 
 Canals of the 
 Ebro --- 
 
 Essara and 
 Cinca 
 
 Ebro 
 
 Huesea and 
 Lgrido 
 
 Farragona 
 
 L^rido 
 
 Le6n and Za- 
 mora_. 
 
 Guadalahara.. 
 
 Huesea 
 
 Sevilla _. 
 
 Cfidiz and Ma- 
 laga 
 
 104.8 
 41.5 
 45.9 
 
 24.8 
 28.5 
 10.5 
 46.5 
 
 42.8 
 
 14.3 
 
 3.1 
 
 23.4 
 
 6.2 
 
 7.5 
 
 11.2 
 
 24.8 
 13.0 
 31.6 
 
 37.8 
 39.0 
 10.5 
 
 1,250 
 
 "1,180" 
 
 232 
 
 180 
 
 45 
 
 534 
 
 64 
 
 22 
 36 
 18 
 
 4 
 
 7 
 
 45 
 
 107 
 
 53 
 
 150 
 
 107 
 
 200 
 
 11 
 
 257,000 
 
 32,180 
 
 242,140 
 
 22,770 
 
 28,400 
 
 2,050 
 
 53,080 
 
 '4,460 
 
 1,480 
 2,260 
 8,180 
 
 610 
 
 817 
 
 4,110 
 
 21,740 
 
 4,010 
 
 19 760 
 
 $6,000,000 
 3,723,000 
 3,882,000 
 
 Urgel 
 
 
 Esla . 
 
 Esla 
 
 Henarea 
 
 Henares 
 
 Arag6n 
 
 Guadalquivir. _ 
 Guadiaro 
 
 Genal and Gua- 
 diaro 
 
 BuUent 
 
 630,000 
 
 946,400 
 
 49,100 
 
 1,939,000 
 
 133 600 
 
 Guadalquivir _ _ 
 
 Guadiaro 
 
 Genal and Gua- 
 
 diaro 
 
 DelaOliva 
 
 Malaga 
 
 Valencia 
 
 Almeria 
 
 Castill6n 
 
 Cfidiz and MS- 
 lag'a 
 
 32,400 
 
 18,300 
 
 373,000 
 
 5,400 
 
 24,600 
 
 De la Obra 
 
 Guadiaro 
 
 Barranco de la 
 
 Obra 
 
 Guadiaro 
 
 GSvora and Za- 
 pat<5n _ 
 
 Guadalentin _. 
 
 Guadalete 
 
 Duero. __ 
 
 Genii and Cu- 
 
 biUas- 
 
 Guadiana 
 
 Ebro 
 
 Gfivora __ 
 
 Guadalentin - _ _ 
 Guadalete 
 
 Badajos 
 
 Jafin and Gra- 
 nada 
 
 Cadiz 
 
 73,400 
 
 302,800 
 107,000 
 
 Duero 
 
 Valadolid 
 
 Granada 
 
 Ciudad-Real .. 
 Zatagosa 
 
 866,400 
 
 Derecha del 
 Genii _ 
 
 Guadiana 
 
 Escatron 
 
 9,600 
 
 16,060 
 
 750 
 
 133,400 
 
 489,800 
 
 43,800 
 
 Notable Irrigation Concessions — Reservoirs. 
 
 Name op the 
 Canal. 
 
 Names of tlie Sup- 
 plying Rivers. 
 
 Provinces Where 
 Situated. 
 
 Capacity— Cu- 
 bic Feet. 
 
 Extent of 
 
 Irrigable 
 
 Land — 
 
 Acres. 
 
 Estimated 
 Cost. 
 
 Torralba de Ri- 
 bota .- 
 
 Barranco de la 
 Hoz __.. 
 
 Zaragoza 
 
 1,505,000 
 
 558 
 
 
 
 $5,300 
 
 Isbert 
 
 Barranco de 
 Infern 
 
 Arba de Luesia. 
 
 Regajo- 
 
 Arroyo Esc.u- 
 risa 
 
 
 
 420,000 
 
 Arba de Luesia. 
 Monteagudo . . . 
 HIjar 
 
 Zaragoza 
 
 Soria 
 
 79,835,000 
 227,500,000 
 
 420,000,000 
 2,135,000 
 
 4,940 
 1,531 
 
 7,460 
 494 
 
 39,700 
 50,000 
 
 Teruel -- 
 
 Alicante 
 
 Murcia 
 
 245,500 
 
 Elda. 
 
 Vinalopfi 
 
 Guadalantln .. 
 Huerva. 
 
 5,000 
 
 Puentes 
 
 1,562,400 
 
 Mezalocha 
 
 Zaragosa 
 
 280,000,000 
 
 3,400 
 
 65,200 
 
524 SPANISH IRRIGA TION LEGISLA TION. 
 
 AUTHORITIES FOR CHAPTER XXII. 
 
 Bentab6l y t7i-c«a.— [Work cited as an authority for chapter XIX.] 
 Pardo. — [Work cited as an authority for chapter XIX.] 
 Memoria, etc. — [Work cited as an authority for chapter XIX.] 
 WaHis.— [Work cited as an authority for chapter XIX.] 
 Aymard.—lW orVi cited as an authority for chapter XVII.] 
 Llav/rado. — [Work cited, as an authority for chapter XVII.] 
 Llaurado. — "State Aid to Irrigation Enterprises." By D. Andres Llaurado, 
 Chief Engineer, etc. ; Pamphlet, Madrid, 1882. 
 
 Note to " Spanish Irrigation Legislation." 
 
 The subject of the old water and irrigation laws of Spain will be taken up in 
 a chapter on their introduction into Mexico, in part III of this report, when 
 some omissions that may appear to have been made in Chapter XVI of this 
 volume, will be supplied. 
 
 Conclusion to Paet I. 
 
 Comparisons of practices and circumstances, results of policies, 
 and applications of the lessons of European experience to any of 
 our Californian questions, have been generally omitted from the 
 foregoing chapters: the object being simply to narrate the facts 
 and illustrate their immediate bearing in the several fields of 
 inquiry, thus making this book a preliminary study of the sub- 
 ject, to be referred to from those which follow and wherein it will 
 be sought to apply its lessons. 
 
lEKIGATION LEGISLATION AND ADMINISTKATION. 
 
 APPENDICES. 
 
APPENDICES TO PAKT I. 
 
 CONTENTS. 
 
 Appendix I.— France— Articles of the Civil Code, wMch specially relate 
 to or affect Water-right and Irrigation matters. 
 
 Appendix II, — Italy— Articles of the Civil Code, which specially relate 
 to or affect Water-right and Irrigation matters. 
 Appendix III.— Spain— New Law of Waters, 
 
 Ordinance for an Irrigation Community. 
 Eegulation concerning Water-rights. 
 
APPENDIX I. 
 
 ARTICLES OF THE CIVIL CODE OF FRANCE 
 
 Specially Eelating to or Affecting 
 
 THE SUBJECTS OP 
 
 WATEE-OOURSES, WATEES, AND lEEIGATION. 
 
 CODE NAPOLEON— BOOK II. 
 
 Or Peopertt, and the Different Modifications of 
 
 Property. 
 
 TITLE I. 
 Of the Classii^ication of Property. 
 Article 516. All property is movable or iminovable. 
 Chapter I. — 0/ Immovable Property. 
 
 Art. 526. Immovable in respect of the object to which they 
 are applied are, (1) The usufruct of immovable things; (2) Ser- 
 vitudes or agricultural services; etc. 
 
 Chapter III — Of Property, with Reference to those who are in the 
 Possession of it. 
 
 Art. 538. Highways, roads, and streets at the national charge; 
 rivers and streams which will carry floats; shores, lands covered 
 and uncovered by the sea; ports, harbors, anchorages for ships, 
 and generally all portions of the national territory which are not 
 susceptible of private proprietorship, are considered as dependen- 
 cies on the public domain. 
 
 Decreed January 25th, promulgated February 4th, 1804. 
 
528 SPANISH IRRIGA TION LEGISLA TION. 
 
 Aet. 542. Common property is that to the ownership or pro- 
 duce of which the inhabitants of one or more communes have an 
 acquired right. 
 
 Aet. 543. One may have over property either a right of own- 
 ership or a simple right of enjoyment, or only claims for ground 
 services. 
 
 TITLE II. 
 Op Property.' 
 
 Art. 544. Property' is the right of enjoying and disposing of 
 things in the most absolute manner, provided they are not used 
 in a way prohibited by the laws or statutes. 
 
 Art. 545. No one can be compelled to give up his property, 
 except for the public good, and for a just and previous indemnity. 
 
 Chapter II — 0/ the Right of Accession over what is Connected and 
 Incorporated with Anything. 
 
 Aet. 551. Everything which is connected and incorporated 
 with anything belongs to the proprietor, according to rules which 
 shall be hereafter established. 
 
 Section First — Of the Right of Accession Relating to Things Immov- 
 able. 
 
 Art. 552. Property in the soil imports property above and 
 beneath. The proprietor may make above (the surface) all kinds 
 of plantations and buildings which he shall judge convenient, sav- 
 ing the exceptions established under the title " Of Servitudes and 
 Services Relating to Land." He may make beneath (the surface) 
 all buildings and excavations which he shall judge convenient, 
 and draw from such excavations all the products which they are 
 capable of furnishing, saving the restrictions resulting from the 
 laws and statutes relating to mines, and from the laws and regu- 
 lations of police. 
 
 Art. 553. All buildings, plantations, and works upon the soil 
 or beneath the surface, are presumed to have been made by the 
 proprietor at his own expense, and to belong to him until the con- 
 trary be shown, without prejudice to the property which a third 
 person may have acquired or may a-cquire by prescription, whether 
 it be a vault beneath the building of another, or any other part of 
 the building. 
 
 Decreed the 27th of .fanuavy; promulgated the 6th of February, 1804. 
 
O WNERSHJP OF STREAMS. 629 
 
 Art. 556. The accumulations and increase of mud formed 
 successively and imperceptibly on the soil bordering on a river or 
 other stream is denominated " alluvion." 
 
 Alluvion is for the benefit of the proprietor of the shore, whether 
 in respect of a river, a navigable stream, or one admitting floats, or 
 not, on condition, in the first case, of leaving a landing place or 
 towing path conformably to regulations. 
 
 Art. 557. It is the same with regard to changes occasioned by 
 a running stream retiring insensibly from one of its banks, and 
 encroaching on the other; the proprietor of the bank added to 
 profits by the alluvion, without giving the proprietor on the oppo- 
 site side a right to reclaim the land which he has lost. This right 
 does not apply to encroachments or alluvions of the sea. 
 
 Art. 558. Alluvion does not apply to lakes and ponds, the pro- 
 prietor of which preserves always the land which the water cov- 
 ers when it is at the pond's full height, even though the volume 
 of water should be diminished. In like manner the proprietor of 
 a pond acquires no right over land bordering on his pond which 
 may happen to be covered by an extraordinary flood. 
 
 Art. 559. If a river or a stream, navigable or not, carries 
 away by a sudden violence a considerable and distinguishable 
 part of a field on its banks, and bears it to a field lower or on its 
 opposite bank, the owner of the part carried away may reclaim 
 Ms property; but he is required to make his demand within a year: 
 after this interval it is inadmissible, unless the proprietor of the 
 field to which the part carried away has been united, has not 
 taken possession thereof. 
 
 Art. 560. Islands, islets, and accumulations of mud formed 
 in the bed of rivers or streams navigable, or floatable, belong to 
 the nation, if there be no title or prescription to the contrary. 
 
 Art. 561. Islands and accumulations of mud formed in rivers 
 and streams not na-\'igable, and not floatable, belong to the pro- 
 prietors of the nearest shore, where the island is formed near one 
 side only; when formed in midstream, it belongs to the proprietors 
 of the shores on the two sides, divided by an imaginary line drawn 
 through the middle of the river. ' 
 
 Art. 562. If a river or other stream in forming itself a new 
 arm, divide and surround a field belonging to the proprietor of the 
 shore, and thereby form an island, such proprietor shall retain the 
 ownership of his land, although the island be formed in a river, or 
 in a navigable stream or one floatable. 
 
 Art. 563. If a river or a navigable stream, capable of admit- 
 ting floats or not, form a new course, abandoning its ancient bed, 
 the proprietors of the land newly occupied, take, by title of indem- 
 nity, the ancient bed abandoned, each in proportion to the land 
 of which he has been deprived. 
 
 ' 34^' ' 
 
530 APPENDIX I— FRENCH CODE ARTICLES. 
 
 TITLE IV. 
 
 Of Servitudes, or Manorial Services.' 
 
 Art. 637. A servitude is a charge imposed upon an estate for 
 the use and benefit of an estate belonging to another proprietor. 
 
 Art. 638. Servitude does not establish any preeminence of one 
 estate over another. 
 
 Art. 639. It is derived either from the natural situation of 
 places, or from obligations imposed by law, or from agreements 
 between proprietors. 
 
 Chapter I — Oj Servitudes Derived from the Situation of Places. 
 
 Art. 640. Lower lands are subjected, as regards those which 
 lie higher, to receive the waters which flow naturally therefrom to 
 which the hand of man has not contributed. The proprietor of the 
 lower ground cannot raise a bank which shall prevent such flow- 
 ing. The superior proprietor of the higher lands cannot do any- 
 thing to increase the servitude of the lower. 
 
 Art. 641. He who possesses a spring within his field may 
 make use of it at his pleasure, saving the right which the propri- 
 etor of a lower field may have acquired by title or by prescription. 
 
 Art. 642. Prescription in such case can only be acquired b}' 
 an uninterrupted enjoyment during the space of thirty years, to be 
 computed from the moment at which the proprietor of the lower 
 field has made and completed the works apparently designed to 
 facilitate the fall and course of the water within his property. 
 
 Art. 643. The proprietor of a spring cannot change the course 
 thereof when it supplies the inhabitants of a commune, village, or 
 hamlet, with water for their necessary use ; but if the inhabitants 
 have not acquired the use of it, by prescription or otherwise, the 
 proprietor may claim an indemnity, to be settled by competent 
 persons. 
 
 Art. 644. He whose property borders on a running water, 
 other than that which is declared a dependency on the public do- 
 main by article 538, under the title, ''Of the Distinction of Property," 
 may employ it in its passage for the watering of his property. He 
 whose estate is intersected by such water, is at liberty to make use 
 of it within the space through which it runs, but on condition of 
 restoring it, at the boundaries of his field, to its ordinary course. 
 
 Art. 645. If a dispute arise between proprietors to whom such 
 waters may be useful, the courts, in pronouncing their judgment, 
 must reconcile the interest of agriculture with the respect due to 
 
 ' Decreed the 31st oJ January, promulgated the 10th of February, 1804. 
 
WATER-RIGHTS AS SERVITUDES. 531 
 
 property; and in all cases particular and local regulations on the 
 course and use of waters must be observed. 
 
 Chapter II — Of Servitudes Established by Law. 
 
 Art. 649. Servitudes established by law have for their object 
 the public benefit, or that of the conamune, or of private persons. 
 
 Art. 650. Those established for the public benefit, or that of 
 the commune, have for their object footways by the side of navi- 
 gable rivers or floatable streams, the construction or reparation of 
 roads and other public works, or those relating to the commune. 
 Ever3rthing relating to this species of servitude is determined by 
 the laws or by particular regulations. 
 
 Art. 651. The law subjects proprietors to different obligations 
 as respects each other, independently of all agreements. 
 
 Art. 652. Part of these obligations is regulated by the laws 
 touching rural police. Others relate to party-walls and ditches, 
 and the cases in which supporting walls are necessary, to views 
 over the property of a neighbor, to the dropping of water from 
 house eaves, to rights of way. 
 
 Chapter III — Of Servitudes Established by the Act of Man. 
 
 Section First — Of the different species of Servitudes which may be 
 Established over Property. 
 
 Art. 686. It is allowed to proprietors to establish over their 
 property, or in favor of their property, such servitudes as seem 
 good to them, provided, nevertheless, that the services established 
 be not imposed either on a person, or in favor of a person, but only 
 on an estate and for the benefit of an estate, and, provided, more- 
 over, such services contain nothing contrary to public order. 
 
 The mode of using and extent of servitudes thus established, are 
 governed by the document which constitutes them; in default of 
 such document, by the rules hereafter given. 
 
 Art. 687. Servitudes are established either for the use of build- 
 ings, or for that of landed estates. Those of the first species are 
 called urban, whether the buildings to which they are due are sit- 
 uated in a town or in a field. Those of the second species are 
 called rural. 
 
 Art. 688. Servitudes are either continual or interrupted. Con- 
 tinual servitudes are those whose use is or may be continual 
 without having a necessity for the positive act of man. Such are 
 water pipes, house eaves, windows, and other things of that de- 
 scription. Interrupted servitudes are those which require the pos- 
 
632 APPENDIX I— FRENCH CODE ARTICLES. 
 
 itive act of man for their exercise. Such are rights of way, of 
 drawing water, of pasture, and other similar ones. 
 
 Art. 689. Servitudes are apparent or non-apparent. Apparent 
 servitudes are those which are manifested by external works, such 
 as a gate, a window, or aqueduct. Non-apparent servitudes are 
 those which have no external sign of their existence, as, for exam- 
 ple, a prohibition to build upon a field, or against building beyond 
 a determinate height. 
 
 Section Second — Of the Mode of Establishing Servitudes. 
 
 Aet. 690. Continual and apparent servitudes are acquired by 
 deed, or by possession for thirty years. 
 
 Art. 691. Continual non-apparent ser%'itudes, and interrupted 
 servitudes whether apparent or not, can only be established by 
 deeds. Even immemorial possession does not suffice to establish 
 them ; without power, nevertheless, to impeach at the present time 
 servitudes of this nature already acquired by possession in dis- 
 tricts where they may have been acquirable in this manner. 
 
 Art. 692. The appointment of a father of a family is equiva- 
 lent to a deed as regards continual and apparent servitudes. 
 
 Art. 693. There is no appointment by the father of a family 
 but when it is proved that the two farms actually divided have 
 belonged to the same proprietor, and that it is by him that things 
 have been put into the state whence results the servitude. 
 
 Art. 694. If the proprietor of two estates between which there 
 exists an apparent sign of servitude, disposes of one of these estates 
 without inserting in the contract any stipulation relative to the 
 servitude, it continues to exist actively or passively in favor of the 
 land alienated, or over the land alienated. 
 
 Art. 695. The deed constituting servitude, as far as respects 
 those which cannot be acquired by prescription, can only be sup- 
 plied by a document acknowledging the servitude, and emanating 
 from the proprietor of the estate subject to servitude. 
 
 Art. 696. When a servitude is established, it is considered 
 that ever3rthing is granted which is necessary in order to make 
 use of it. Thus the servitude of drawing water at another's foun- 
 tain necessarily imports a right of way. 
 
 Section Third — Of the Rights of the Proprietor of the Estate to which 
 the Servitude is Due. 
 
 Art. 697. He to whom a servitude is due, has a right to form 
 all the works necessary to make use of and preserve it. 
 
 Art. 698. These works are at his own expense, and not at that 
 of the proprietor of the estate subjected to servitude, unless the 
 deed establishing the ser^'itude declare the contrary. 
 
WATER-RIGHTS AS SERVITUDES. 533 
 
 Art. 699. In the case even where the proprietor of an estate 
 subjected to servitude is charged by the deed with the construc- 
 tion, at his own expense, of works necessary for the usage or pres- 
 ervation of the servitude, he may always get rid of such charge by 
 abandoning the estate subjected to servitude to the proprietor of 
 that estate to which the servitude is due. 
 
 Abt. 700. If the estate for the benefit of which the servitude 
 has been established happens to be di\'ided, the servitude remains 
 due for each portion, provided always, nevertheless, that the bur- 
 den of the estate subjected to servitude shall not be aggravated. 
 Thus, for example, if the case be respecting a right of way, all the 
 joint proprietors shall be obliged to exercise it by the same path. 
 
 Art. 701. The proprietor of an estate from which a servitude 
 is due can do nothing which tends to diminish the usage thereof, 
 or to render it less satisfying. Thus he cannot change the condi- 
 tion of places nor transport the exercise of the servitude into a 
 place different from that in which it has been originally assigned. 
 Nevertheless, if this original assignment has become more bur- 
 densome to the proprietor of the estate subjected to the servitude, 
 or if he is prevented from making there advantageous repairs, he 
 may offer to the proprietor of the other estate a place equally com- 
 modious for the exercise of his rights, and the latter shall not be 
 at liberty to refuse. 
 
 Art. 702. On the other hand, he who claims the servitude, 
 can only use it according to his title, without power to effect either 
 in the estate which owes the servitude, or in the estate to which it 
 is due, any change which aggravates the condition of the former. 
 
 Section Fourth — Of the Manner in which Servitudes are Extinguished. 
 
 Art. 703. Servitudes cease when things are in such a state 
 that it is impossible any longer to make use of them. 
 
 Art. 704. They revive if things are reestablished in such a 
 manner that they can be made use of; unless a sufficient space of 
 time have already elapsed to raise a presumption that the servi- 
 tudes have been extinguished, as is described in article 707. 
 
 Art. 705. Every servitude is extinguished when the estate to 
 which it is due, and that which owes it, are united in the same 
 hands. 
 
 Art. 706. A servitude is extinguished by non-usage during 
 thirty years. 
 
 Art. 707. The thirty years begin to run according to the dif- 
 ferent species of servitudes, either from the day on which they 
 have ceased to be enjoyed, when the case regards interrupted ser- 
 vitudes, or from the day on which an act has been made contrary 
 to the servitude, in the case of continual servitudes. 
 
534 APPENDIX I— FRENCH CODE ARTICLES. 
 
 Art. 708. The mode of servitude is subject to prescription like 
 the servitude itself and in the same manner. 
 
 Art. 709. If the estate in favor of which the servitude is es- 
 tablished belong to several coparceners, the enjoyment by one 
 precludes prescription with regard to all. 
 
 Art. 710. If among the joint proprietors there be one against 
 whom the prescription has not been able to run, as a minor, he 
 shall have preserved the right for all the others. 
 
 BOOK III. 
 
 Of the Different Modes of Acquiring Property.' 
 
 General Dispositions. 
 
 Art. 711. Ownership in goods is acquired and transmitted by 
 succession, by donation between living parties, or by will and by 
 the effect of obligations. 
 
 Art. 712. Ownership is acquired also by accession, by incor- 
 poration, and by prescription. 
 
 Art. 713. Property which has no owner belongs to the nation. 
 
 Art. 714. There are things which belong to' no one, and the 
 use whereof is common to all. The laws of police regulate the 
 manner of enjo5n.ng such. 
 
 AUTHORITY FOR APPENDIX I. 
 
 The foregoing translation of articles from the code Napoleon, is that of Rich- 
 ards, with a very few corrections of wording where relating to physical sub- 
 jects, made after examination in the French edition of the code, by Pigoreau. 
 Bee authorities for chapter II, p. 73, ante. 
 
 Decreed the 19th of April, 1803. Promulgated the 29th of the same month. 
 
OWNERSHIP OF RIVERS. 535 
 
 APPENDIX n. 
 
 ARTICLES OF THE CIVIL CODE OF ITALY 
 
 Specially Eelative to or Affecting 
 THE SUBJECTS OF 
 
 WATEE-COUESES, WATEES, AND lEEIGATION. 
 
 ITALIAN CODE— BOOK II. 
 
 Of Property, and of the Modification of Property. 
 
 TITLE I. 
 
 Op the Classification op Property. 
 
 Article 406. All things which can be the subject of public 
 or private ownership are ranked as immovable or as movable 
 property. 
 
 Chapter I — 0/ Immovable Property. 
 
 Art. 407. Properties are immovable by nature, by their desti- 
 nation, or with reference to the object to which they relate. 
 
 Art. 412. Springs, reservoirs, and water-courses are immov- 
 able in their nature. Canals which take water to a building or 
 estate are also immovable and form part of the building or estate 
 to whose service the water is devoted. 
 
 Art. 415. The law considers immovable with respect to the 
 object to which they relate: * * * Pradial servitudes; * * *. 
 
536 APPENDIX II— ITALIAN CODE ARTICLES. 
 
 Chapter III — Of Property Relatively to the Person to Whom it 
 
 Belongs. 
 
 Art., 425. Properties belong to the state, to a province, to com- 
 munes, to public institutions, or other moral bodies, or to private 
 individuals. 
 
 Art. 426. Properties of the state are classed in the public do- 
 main and in patrimonial properties. 
 
 Art. 427. The national roads, the shore of the sea, the har- 
 borfe, bays, coasts, rivers, and torrents, the gates, walls, ditches, 
 and bastions of forts and fortifications, form part of the public 
 domain. 
 
 Art. 428. Whatever other species of property appertains to 
 the state forms part of its patrimony. 
 
 Art. 429. Lands of fortifications and bastions of forts which 
 cannot be applied to their intended use, and all the other prop- 
 erties which cease to be applied to public use or to the national 
 defense, pass from the public domain to the patrimony of the 
 
 state. 
 
 Art. 430. The properties of the public domain are by their 
 nature inalienable; while those of the patrimony of the state can- 
 not be alienated except in conforniity with special laws which 
 govern it. 
 
 Art. 432. Properties of the provinces and of the communes 
 are classified into properties of public use and patrimonial prop- 
 erties. The purpose, the mode, and the conditions of the public 
 use, and the mode of administration and of alienation of patri- 
 monial properties, are determined by special laws. 
 
 TITLE II. 
 
 Op Property. 
 
 Chapter I — General Provisions. 
 
 Art. 436. Property is the right of enjoying and disposing of 
 things in the most absolute manner, provided they are not applied 
 to a use prohibited by the laws or ordinances. 
 
 Art. 488. No one can be compelled to cede his property, or to 
 permit that others make use of it, if not for a cause of public 
 utility legally recognized and declared, and following the pay- 
 
On-i\ERSffTP OF STREAMS. 537 
 
 ment of a just indemnity. The forms relative to expropriation for 
 purposes of public utility are determined by special laws. 
 
 Art. 440. He who has tilie property of the soil has for his the 
 space over it and all that is found upon or beneath the surface. 
 
 Art. 443. Property in a tiling, whether movable or immovable, 
 includes the right to all which it produces, whether this is accom- 
 plished naturally or by artificial means; this right is called the 
 right of accession. 
 
 Chapter III — Of the Right of Accession to that which is Incoi-po- 
 rated icith or United to a Tiling. 
 
 Art. 446. All that which is incorporated with or is united to a 
 thing, appertains to tlie proprietor of it. under the rules established 
 in the following. 
 
 Section First — Of the Right of Accession Relatively to Immorable 
 
 Things. 
 
 Art, 447. A proprietor may make upon his own soil any con- 
 struction or plantation whatever, sa^^ng the restrictions established 
 under the head '' Of Pradial Servitudes." Similarly, he may make 
 beneath the soil any construction or excavation whatever, and take 
 all the possible products, sa^•ing the restrictions of the law and reg- 
 ulations concerning mines and poUce. 
 
 Art. 44S. Every construction, plantation, or work upon or 
 under the soil is presumed made by the proprietor at his own ex- 
 pense, and belongs to him, while not proven to the contrary, and 
 Tiithout prejudice, however, to the rights of third parties, legiti- 
 mately acquired. 
 
 Art. 453. The uniting of lands and their increments, which 
 are formed gradually and imperceptibly in estates bordering on 
 the banks of rivers and torrents, are called alluvions. Alluvions 
 form to the benefit of the owner along the bank of the river or tor- 
 rent, whether navigable and floatable or not, with the obligation 
 in the first case of permittiiig a tow-path, according to regulations. 
 
 Art. 4-34. Land abandoned by running water which insensi- 
 bly is retired from one of the banks to another, belongs to the 
 proprietor of the bank uncovered, without power on the part of 
 the losing proprietor to reclaim the land lost. This right does not 
 apply to lands abandoned by the sea. 
 
 Art. 455. The right of alluvion as relating to lakes and stand- 
 ing waters does not exist. The owners of these hold always tliat 
 
638 APPENDIX II— ITALIAN CODE ARTICLES. 
 
 which the water covers when it is at the greatest height of flood 
 in the lake or pond, when it comes to be reduced. Likewise the 
 proprietor of a lake or pond does not acquire any right over the 
 land along the shore which the water covers in case of extraor- 
 dinary overflowing. 
 
 Art. 456. If a river or torrent by sudden force takes a consid- 
 erable and recognizable part of a property contiguous to its course, 
 and transports it against a lower property, or against the opposite 
 bank, the proprietor of the part taken may reclaim his property- 
 ship within a year. After the passing of this term, the demand 
 shall not be admitted, unless that the proprietor of the land to 
 which the part moved has been added has not yet taken posses- 
 sion of it. 
 
 Art. 457. The islands, islets, and unitings of land which are 
 formed in the beds of navigable or floatable rivers or torrents,, 
 belong to the State, if there exists no title by prescription to the 
 contrary. 
 
 Art. 458. The islands and unions of land which are formed 
 in rivers and torrents not navigable nor floatable, belong to the 
 fronting proprietors to the extent of the middle line of the river or 
 torrent. If the island or union of land is situated nearer to one 
 bank than the medium line, then it belongs to the proprietor of 
 the nearest bank. The portions of the island or union of earth 
 due to proprietors of opposite banks, is determined by measure- 
 ments perpendicular to the middle line of the stream, made at the 
 extreme point of frontage of each property. 
 
 Art. 459. The dispositions of the two preceding articles are 
 not applicable to the case where an island is formed with land 
 taken by sudden force from a bank and transported into the river 
 or torrent. The proprietor of the property from which the land is 
 taken preserves his ownership; but in the case of navigable and 
 floatable rivers, the State has the right to make purchase from the 
 proprietor, making payment of a proper indemnity. 
 
 Art. 460. If a river or torrent forming a new course, surrounds 
 and encircles property of a bordering proprietor, forming an island,, 
 he shall preserve the ownership of the property, saving the pre- 
 scription established in the preceding article. 
 
 Art. 461. If a river or torrent forms a new bed, abandoning 
 its ancient one, this belongs to the proprietors bordering on the two 
 banks. This is to be divided to the middle of the channel, iii pro- 
 portion to the frontage of each one. 
 
WATER-RIGHTS AS SERVITUDES. 539 
 
 TITLE III. 
 Of the Modifications of Pkopkrty. 
 
 Chapter II — 0/ Pradial Servitudes. 
 
 Art. 531. A pradial servitude consists in a burden imposed 
 upon one estate for the use and utility of an estate belonging to 
 another proprietor. 
 
 Art. 532. Pradial servitudes are established by law and by 
 the acts of man. 
 
 Section 1 — Of Servitudes Established by Law. 
 
 Art. 538. Servitudes established by law have for their object 
 either public or private utility. 
 
 Art. 534. Servitudes established for ptiblic utility relate to a 
 water-course, to foot-paths along rivers and navigable canals, or 
 acts of passage, to the construction and repairing of roads and 
 other public works. All things which concern this species of ser- 
 vitude will be determined by laws and special regulations. 
 
 Art. 535. Servitudes which the law imposes for private use, 
 are determined by the law and reigulations of rural police, and by 
 the dispositions of the present section. 
 
 Section First — Of Servitudes Resulting from the Situation of Places. 
 
 Art. 536. Lower estates are obliged to receive the water which 
 flows naturally off those higher up, so long as such flow is not 
 occasioned by the act of man. The owner of the lower estate must 
 not in any way interfere with this flow. The owner of the upper 
 estate must not do anji;hing to increase the servitude of the lower 
 estate. 
 
 Art. 537. If the banks and barriers existing on an estate, and 
 serving to retain water, should have been destroyed or carried 
 away, or repairs should be proposed, which changes in the course 
 of the waters render necessary, and should the owner of the estate 
 not wish himself to repair, rebuild, or construct them, the owners 
 injured or whose property may be in peril, may execute at their 
 own expense the necessary repairs or constructions. The work, 
 however, must be executed so that the owner of the estate shall 
 not suffer injury, and aftet procuring judicial sanction, those inter- 
 ested having been heard and the special rules about water having 
 been complied with. 
 
 Art. 538. The same holds good when it is proposed to remove 
 
540 APPENDIX IT— ITALIAN CODE ARTICLES. 
 
 an obstruction formed on an estate, or in a ditch, brook, drain, or 
 other channel, by substances stopped in it so that the water injures 
 or may injure the neighboring estates. 
 
 Art. 539. All the proprietors to whom the preservation of the 
 banks and barriers, or the removal of the obstructions mentioned 
 in the two preceding articles are beneficial, may be summoned 
 and obliged to contribute to the expense in proportion to the ad- 
 vantages which each receives therefrom, always provided that the 
 injuries or expenses which may have been occasioned by the 
 destruction of the barriers, or by the formation of the aforesaid 
 obstructions, shall be made good. 
 
 Art. 540. He who has a spring on his estate, may use it at 
 his pleasure, sa^ving the right which the proprietor of a lower 
 estate may have acquired by force of title or prescription. 
 
 Art. 541. The prescription in this case does not hold good 
 except after a possession of thirty years, computed from the day 
 on which the owner of the lower estate has made and finished on 
 the upper estate visible and permanent works destined to facilitate 
 the fall and course of the water to his own estate, and which works 
 have served for that purpose. 
 
 Art. 542. The owner of a spring may not divert its course 
 when the same supplies the inhabitants of a community, or a por- 
 tion of one, with water which is necessary for them; but if the 
 inhabitants have not acquired the use of it, or have not got it by 
 right of prescription, the owner has a right to compensation. 
 
 Art. 543. Whoever has an estate bordering on a stream which 
 flows naturally and without artificial works, excepting such as are 
 declared public domain by article 427, or over which others have 
 a right, may, whilst it runs along, make use of it for the irrigation 
 of his lands, or for the proseciition of his industries, on condition, 
 however, of restoring the drainage and residue. of it to the ordi- 
 nary channel. Whoever has an estate crossed by such water may 
 also use it in the interval in which it is running through, but with 
 the obligation of restoring it to its natural course when it leaves 
 his lands. 
 
 Art. 544. Should a dispute arise between owners to whom the 
 waters may be of use, the judicial authority must reconcile the 
 interests of agriculture and' industry, with the consideration due 
 to property, and in all cases the special and local rules of the 
 water-course and use of waters must be observed. 
 
 Art. 545. Any owner or possessor of water may make use of 
 it at his pleasure, or even dispose of it in favor of others, where no 
 title or prescription prevents; but after having used it he may not 
 divert it so that it may be consumed to the injury of other estates, 
 where it could be used without damming it up, or otherwise pre- 
 judicing those using it above, and which, by means of an equiva- 
 lent compensation, give payment for that by which they profit. 
 
WATER-RIGHTS AS SERVITUDES. 541 
 
 where a spring or other water belonging to the owner of the upper 
 estate is treated for. 
 
 Section Third — Of Intermediate Distances and Works. 
 
 Art. 575. No one may dig ditches or canals without keeping 
 a distance from the boundary of the estate of another person at 
 least equal to their depth, except when a greater distance may 
 have been established by local regulations. 
 
 Aet. 576. The distance shall be measured from the edge of 
 the bank of the ditch or canal nearest to the said boundary. This 
 bank must, moreover, be inclined at a slope; and, if without a 
 slope, be provided with works of support. When the boundary of 
 an estate of another is found in a common ditch, or else in a pri- 
 vate road but common to both estates, or subject to a right of pas- 
 sage, the distance shall be measured from the aforesaid edge to 
 the edge of the bank of the common ditch, or else to the margin 
 or exterior border of the road nearest to the new ditch or canal, 
 subject to the dispositions in relation to the slope. 
 
 Art. 577. If the ditch or canal be dug in the neighborhood of 
 a party wall, the aforesaid distance is not required, but all the 
 works must be executed so as to prevent any damages. 
 
 Art. 578. Whoever wishes to open springs, to establish heads 
 or branches of fountains, canals, or water-courses, or to dig, deepen, 
 or enlarge their bed, to increase or diminish their fall, or alter 
 their form, must, besides the distance above decreed, observe 
 whatever greater distance and execute whatever works may be 
 necessary so as not to injure estates, springs, heads or branches 
 of fountains, canals, or aqueducts belonging to others, existing 
 already and destined for the irrigation of lands or the supply of 
 buildings. 
 
 Where a dispute arises between two proprietors, the judicial 
 authority must conciliate them in the fairest manner and with 
 respect to the consideration due to the rights of property and to 
 the greater advantages which may be obtained to agriculture or to 
 industry, from the use to which the water is put, or intended to be 
 put, awarding, where it may be necessary, to one or the other of 
 the proprietors that compensation which they ought to have. 
 
 Section Sixth — Of the Eight of Passage, and of Aqueduct. 
 
 Art. 598. Every proprietor has to give passage through his 
 estates for waters of any kind which have to be conducted by 
 any one who has permanently, or even only temporarily, the right 
 
•542 APPENDIX 11— ITALIAN CODE ARTICLES. 
 
 to make use of them for the necessities of hfe, or for agricultural 
 or industrial purposes. There are excepted from this servitude 
 houses, and the courts, gardens, and yards belonging to them. 
 
 Art. 599. Whoever demands a passage must open the neces- 
 sary canal, without causing its waters to flow in the canals already 
 existing and intended as the course of other waters. But the pro- 
 prietor of the estate, who -is also proprietor of a canal existing 
 thereon and of the waters flowing therein, can prevent a new canal 
 being opened on his land, offering to give passage for the waters 
 in the same canal, when it can be done without notable damage 
 to him who demands the passage. In such case there will be due 
 to the proprietor of the canal an indemnity to be determined, hav- 
 ing regard to the water introduced, the value of the canal, the 
 work that will be rendered necessary for the new passage, and the 
 increased expense of maintenance. 
 
 Art. 600. Passage for water across canals or aqueducts must 
 also be allowed, in the manner known to be most convenient and 
 adapted to the locality and to their state, provided that the course 
 or the volume of the waters flowing in them may not be impeded, 
 retarded, or accelerated, nor in any way altered. 
 
 Aet. 601. Having to conduct waters across public highways, 
 rivers, or torrents, the special rules and regulations concerning 
 highways and waters must be observed. 
 
 Aet. 602. Whoever desires to make water pass through the 
 estate of another, must show that he can dispose of the water dur- 
 ing the time for which he demands the right of passage ; that the 
 same will be suflicient for the use to which it is desired ; that the 
 passage demanded will be the most convenient and the least preju- 
 dicial to the serving property, having regard to the circumstances 
 of the neighboring estate, to the slope, and to the other conditions 
 for the conducting, the course, and the discharge of the waters. 
 
 Aet. 603. Before undertaking the construction of the aqueduct, 
 whoever may wish to conduct water through the property of 
 another, must pay the estimated value of the ground occupied, 
 without subtraction of the taxes or the other imposts inherent to 
 the property, and with the addition of one fifth over and above 
 the reimbursement, for immediate damages, including those arising 
 from the division of the land into two or more parts, or from other 
 deterioration of the ground by cutting up. 
 
 The ground which would be occupied solely for the deposit of 
 the material excavated, or for the throwing out of silt, will only be 
 paid for at the rate of half the value of the land with the addition 
 of one fifth, and always without subtraction of the taxes or other 
 inherent imposts; but in the same ground the proprietor of the 
 serving property may plant and raise trees or other vegetation, 
 and remove and transport the accumulated material, provided it 
 is done without damage to the canal, its cleansing, or maintenance. 
 
RIGHT OF WAY FOR WATER. 543 
 
 Aet. 604. When a demand for the passage of waters is for a 
 time not greater than nine years, the payment of the value and 
 the indemnity to which reference is made in the preceding arti- 
 cle, will be restricted to only one half, but with the obligation at 
 the end of the term to replace things in their original state. Who- 
 ever has obtained this temporary passage can, before the comple- 
 tion of the term, render it perpetual by paying the other half, with 
 legal interest thereon, from the day on which the passage was first 
 effected. The term once concluded no account will be taken of 
 that which has been paid for the temporary concession. 
 
 Art. 605. Whoever possesses a canal on the estate of another 
 cannot introduce in it a greater quantity of water than that which 
 the canal is known to be capable of carrjdng, and must not cause 
 any damage to the serving property. 
 
 If the introduction of a greater quantity of water necessitates 
 new works, these cannot be undertaken until their nature and 
 kind are first determined and the sum due for the ground to be 
 occupied and the damage established in the manner laid down in 
 article 603, are paid. The same holds good when for the passage 
 across an aqueduct there has to be substituted a canal bridge, a 
 pipe, or vice versa. 
 
 Art. 606. The dispositions contained in the preceding articles 
 "with regard to the passage of the waters are extended to the case 
 in which passage is demanded for the purpose of wasting superflu- 
 ous waters that the neighboring owner would not consent to receive 
 on his property. 
 
 Art. 607. It will always be in the power of the proprietor of 
 the serving ground to cause the bottom of the canal to be fixed in 
 a stable manner by the laying of pavement or sills to be placed at 
 fixed points. But where he did not make use of said power in 
 the first concession of the aqueduct, he will have to support half 
 the necessary expense. 
 
 Art. 608. Where a water-course prevents the owner of con- 
 tiguous lands from gaining access to the same, or prevents the 
 continuation of the irrigation and drainage of waters, those who 
 are served by that water-course are obliged, in proportion to the 
 benefits which they receive, to construct and maintain the bridges 
 and their approaches in a way sufficient for commodious and 
 secure transit, as well as the syphons, the canal bridges or other 
 similar works for the continuation of the irrigation or the drainage, 
 saving rights arising from agreement or prescription. 
 
 Art. 609. The proprietor who intends to dry out his land or 
 render it salubrious by subdrainage, by warping, or by any other 
 means, has the right, by previous payment of indemnity and with 
 the least damage possible, to conduct by drain or ditch the wa- 
 ters of drainage across the lands which separate his from a water- 
 course or any other drain. 
 
544 APPENDIX 11— ITALIAN CODE ARTICLES. 
 
 Art. 610. The owners of estates crossed by a drain or ditch of 
 another, or who could otherwise profit by the work done in virtue 
 of the preceding articles, have the power to make use of them for 
 the improvement of their property, on the condition that this may 
 not bring any damage on the property already improved, and that 
 they bear: 
 
 Fir&i — The new expense needed to modify the work already 
 done, in order that it can serve also for the property crossed. 
 
 Second — A proportional part of the expenses already incurred, 
 and of those needed to maintain the work which has become com- 
 mon. 
 
 Aet. 611. In the execution of the work indicated in the pre- 
 vious articles, the disposition of the first clause of article 598 and 
 articles 600 and 601 are applicable. 
 
 Art. 612. If in the drainage of a marshy property any one 
 having a right to the water which is drawn off should object, and 
 if with proper works, bearing an expense proportional to their 
 scope, the two interests cannot be conciliated, the drainage shall 
 nevertheless be made, after payment of a sufficient indemnity to 
 the opponent. 
 
 Art. 613. Whoever has a right to derive waters from rivers, 
 torrents, streams, canals, lakes, or reservoirs, can, where it may be 
 necessary, place or fix an inclosure on the banks, though with the 
 obligation to pay the indemnity and to make and maintain the 
 works which are suitable to guarantee the estates from any dam- 
 age. 
 
 Art. 614. He having the right to the derivation and use of 
 waters, as described in the preceding article, must avoid, between 
 the users higher up and those lower down, every injury which may 
 arise from the stopping up or excessive flow, or from the diversion 
 of the said water. Those persons who may have caused such in- 
 jury are held to compensation for damage, and are subject to the 
 penalties established by the regulations of rural police. 
 
 Art. 615. Concessions by the state for the use of water are 
 always understood to be made without injury to former rights to the 
 use of said water, which might have been legitimately acquired. 
 
 Chapter III — Of Servitudes Established by the Acts of Man. 
 
 Section First — Of the Different Kinds of Servitudes which can be 
 Laid upon Estates. 
 
 Art. 616. Proprietors can establish on their estates, or for their 
 benefit, any servitude, provided that it may only be imposed on 
 one property and for the advantage of another, and that it may 
 not be in any way opposed to the public order. 
 
 The exercise and extension of servitudes are regulated by the 
 title, and in default of this by the following dispositions. 
 
WATER-RIGHTS AS SERVITUDES. 545 
 
 Aet. 617. Servitudes are continuous or discontinuous. They 
 are continuous when their existence is or may be continuous with- 
 out an actual act of man being necessary; such are those of aque- 
 ducts, dropping of water, views, and such like. 
 
 They are discontinuous when they require an actual act of man 
 to be exercised: such are those of passage, of drawing water, of 
 conducting cattle to pasture, and the like. 
 
 Art. 618. Servitudes are apparent or non-apparent. They are 
 apparent when they are manifested by visible signs; as a gate, a 
 window, a canal. They are non-apparent when they have no visi- 
 ble sign of their existence; as the prohibition to build on an estate, 
 or to build except at a fixed height. 
 
 Aet. 619. The ser\'itude of taking water by means of canals 
 or other visible and permanent works, for whatever purpose they 
 may be intended, is included among the number of continuous 
 and apparent servitudes, even should the taking of the water not 
 be exercised except at intervals of time or by a routine of days or 
 hours. 
 
 Aet. 620. When for the derivation a constant and fixed quan- 
 tity of running water, the form of the gate opening and of the 
 structure has been agreed on, that form must be maintained, and 
 parties are not permitted to interfere with it under the pretense of 
 an excess or deficiency of water, unless that excess or deficiency 
 arises from a subsequent variation in the supplying canal, or in 
 the course of the water flowing in it. 
 
 If the form has not been determined on, but the opening and 
 works of derivation have been constructed and possessed peacea- 
 bly during five years, then it is not permitted, after such time, to 
 make reclamation of a part under the pretense of excess or defi- 
 ciency of water, except in the case of variation taken place in the 
 canal or in the course of the water as above. In the absence of 
 agreement or of the possession above mentioned, the form shall 
 be determined by the judicial authorities. 
 
 Aet. 621. In concessions of water made for a definite service, 
 without the volume being expressed, it is understood that the 
 amount necessary for the object is granted; and whoever is con- 
 cerned in it may at any time cause the form of derivation to be 
 established in a manner that at all times there shall be enough 
 deHvered for use, and an excess prevented. 
 
 But if the form of the intake and headworks has been agreed 
 on, or if, in the absence of an agreement, it has been peaceably 
 used for five years, no alteration of the parts is then permitted, 
 except in the case mentioned in the preceding article. 
 
 Aet. 622. In new concessions in which is laid down and ex- 
 pressed a constant volume of water, the volume conceded must 
 always be expressed in terms of modules. The module is the 
 
 35^ 
 
546 APPENDIX II— ITALIAN CODE ARTICLES. 
 
 unit of measure of running water. It is a body of water which 
 flows with the constant volume of 100 Htres per second, and is 
 divided into tenths, hundreds, and thousandths. 
 
 Aet. 623. The right to the taking of a flow of water can be 
 exercised at every instant. 
 
 Art. 624. Such a right is exercised for the summer waters 
 from the spring to the autumn equinox; for the winter waters, 
 from the autumn to the spring equinox; and for water distributed 
 at intervals of hours, days, weeks, months, or otherwise, in the 
 times laid down by the agreement or possession. The distribution 
 of water by days or by nights refers to the natural day or night 
 only. The use of water on feast days is regulated by the festivals 
 ordained to be observed at the time when the use was agreed on 
 or when the possession began. 
 
 Art. 625. In the distribution of water by turns, the time which 
 the water takes to arrive at the opening of derivation of the user, 
 is consumed at his charge, and the tail of the water supply belongs 
 to him whose turn is ceasing. 
 
 Art. 626. In canals subject to distribution by turns, the waters 
 rising or escaping, but contained within the channel of the canal, 
 cannot be stopped or taken off by a user, except at the time of his 
 own turn. 
 
 Art. 627. In the same canals the users may vary or exchange 
 their turns among themselves, provided such changes cause no 
 injury to the others. 
 
 Art. 628. Whoever has a right to make use of the water as a 
 motive power cannot, without an express stipulation of the title, 
 hinder or slacken its flow, causing it to overflow or be backed up. 
 
 Section Second — Of the Manner in which by the Act of Man Servi- 
 tudes are Established. 
 
 Art. 629. Continuous and apparent servitudes are established 
 by the effect of a title, or with the prescription of thirty years, or 
 by the appointment of the father of a family. 
 
 Art. 631. In affirmative servitudes the possession necessary 
 for the prescription is computed from the day on which the pro- 
 prietor of the dominant estate commenced to exercise it upon the 
 servient estate. In negative servitudes the possession commences 
 from the day of the prohibition made with formal act, by the pro- 
 prietor of the dominant estate to him of the servient estate by 
 contesting the free use of the same. 
 
 Art. 632. The appointment of the father of a family has place 
 when it is evident, by any sort of proof, that two estates, actually 
 divided, were once possessed by the same proprietor, and that the 
 
WATER-RIGHTS AS SERVITUDES. 647 
 
 thing or state from which resulted the servitude was his will or 
 permission. 
 
 Art. 637. Drainage waters derived from another estate may 
 constitute an active servitude, claimable by the estate which re- 
 ceives'it, to the extent of preventing its diversion. When such a 
 servitude is claimable by prescription, it is only considered to 
 commence from the day on which the owner of the dominant es- 
 tate may have made on the servient estate visible and permanent 
 works, with the view of collecting and conducting the said drain- 
 age waters for his own profit; or from the day on which the owner 
 of the dominant estate may have commenced and continued to 
 enjoy them, notwithstanding a formal act of opposition on the part 
 of the owner of the servient estate. 
 
 Art. 638. The regular cleansing and the maintenance of the 
 banks of an open channel upon the estate of another, destined and 
 serving to collect and draw off the drainage, infers the presump- 
 tion that it is the work of the owner of the dominant estate, when 
 there may be no title, sign, or proof to the contrary. The exist- 
 ence on the channel, of structures built and maintained by the 
 owner himself of the estate in which the channel is opened, is 
 considered a contrary sign. 
 
 Section Third — In ichat Manner Servitudes are Exercised. 
 
 Art. 639. A right of servitude includes all that is necessary 
 for its use. Thus the servitude of taking water from the fountain 
 of another includes the right of passage through the estate to the 
 fountain from which it is taken. Likewise, the right to lead water 
 through the estate of another comprehends that of passage along 
 the banks of the canal for guarding the conducted water, and to 
 make the cleanings and repairings necessary. 
 
 Art. 642. In the servitude of taking and of conducting water 
 when the title does not otherwise express, the proprietor of the ser- 
 vient estate can always demand that the excavation be maintained 
 conveniently clean, and that the banks be kept in a state of good 
 repair, at the expense of the proprietor of the dominant estate. 
 
 Art. 648. A right to the conducting of water does not confer 
 on the conducter the ownership of the lands of the banks or bed 
 of the spring or supplying channel. The property tax and other 
 burdens belonging to estates are to be borne by its owners. 
 
 Art. 649. In the absence of special agreement, the owner or 
 other granter of the water of a fountain or of a canal, is bound 
 towards the users of it, to execute the ordinary and extraordinary 
 works for the derivation and conducting of the water up to the 
 
548 APPENDIX II— ITALIAN CODE ARTICLES. 
 
 point at which it is delivered, to maintain the structures in good 
 condition, to preserve the bed and banks of the source or of the 
 canal, to perform the ordinary cleansings, and to use diligence, 
 care, and watchfulness, to the end that the derivation and regular 
 supply of the water may be effected in proper time. 
 
 Art. 650. The granter of the water, however, should- there 
 prove to be a deficiency of the same, naturally brought about, or 
 even by the act of another, which in no way, directly of indirectly, 
 can be imputed to him, is not bound to pay for damages, but 
 only to allow a proportional diminution of the rent or price agreed 
 on, as it falls due, or even after it has been paid, saving always 
 the right of the granter or grantee to damages from the author of 
 the deficiency. When users are agreed as to the author of the 
 damage, they may oblige the granter to take legal action, and to 
 assist by every means in his power to procure compensation for the 
 damage caused by the deficiency. 
 
 Aet. 651. The deficiency of water must be borne by whoever 
 has a right to take and use it in the time during which such defi- 
 ciency happens, saving always the right of compensation for inju- 
 ries, and to a diminution of the rent or price as in the preceding 
 article. 
 
 Art. 652. Among different users, the deficiency of the water 
 should be borne first by those whose title or possession is the most 
 recent; or, among users similarly situated, by the last user. The 
 right to compensation for the injuries caused by the deficiency is 
 always excepted. 
 
 Art. 653. When the water has been granted, reserved, or pos- 
 sessed for a determined use, with the obligation of restoring to the 
 granter or to others whatever is over, such an arrangement must 
 not be changed to the injury of the estate to which the restitution 
 is due. 
 
 Art. 654. The owner of an estate bound to restore the drain- 
 age or the residue of the water, must not divert any portion of it 
 under plea of having introduced a greater quantity of flowing 
 water or a different body, but must permit it to flow off entirely in 
 favor of the estate below. 
 
 Art. 655. The servitude to drainage does not deprive the owner 
 of the servient property of the right of freely using the water to 
 benefit his own estate, of changing the cultivation on it, or even 
 of abandoning entirely or partly the irrigation of it. 
 
 Art. 656. The owner of an estate subjected to the servitude of 
 drainage, or of supplying surplus water, can always free himself 
 from such servitude by ceding and insuring to the dominant estate 
 a volume of running water, the quantity of which shall be deter- 
 mined by the judicial authority, due account being taken of all 
 the circumstances of the case. 
 
WATER-RIGHTS AS SERVITUDES 549 
 
 Art. 657. Those who have a common interest in the deriva- 
 tion and in the use of water, or in the improvement or drainage of 
 lands, may unite in an association, with a view of providing for 
 the exercise, the preservation, and the defense of their rights. 
 The union of those concerned and the rules of the society must be 
 fixed in writing. 
 
 Art. 658. The association having been constituted, the reso- 
 lutions of the majority, within the limits and according to the rules 
 laid down in the respective regulations, shall have effect accord- 
 ing to article 678. 
 
 Art. 659. The formation of such an association may also be 
 decreed by the judicial authority on the demand of the majority 
 of those interested, the others having been fully heard, when it is 
 a case of the exercise, the preservation, or the defense of common 
 right, of which it is impossible to make a division without serious 
 damage. In such a case the regulations proposed and resolved on 
 by the majority are subject to the approval of the judicial authority. 
 
 Art. 660. A dissolution of the association can only take place 
 when resolved on by a majority exceeding three fourths, and when 
 a partition may be effected without serious damage, and when it 
 shall have been demanded by some of those interested. 
 
 Art. 661. In all else the rules established by the commune, 
 the society, or the division, are observed by all associations. 
 
 Section Fourth — Of the Manner in which Servitudes are Extinguished. 
 
 Art. 662. A servitude ceases when things arrive at such a State 
 that it cannot be used. 
 
 Art. 663. A servitude is revived when things are reestablished 
 in a condition such that it can again be exercised, saving when 
 time sufficient shall have elapsed to extinguish the servitude. 
 
 Art. 666. A servitude is extinct when not exercised for a space 
 of thirty years. 
 
 Art. 667. The thirty years, in the case of a discontinuous servi- 
 tude, commences to run from the day on which it ceased to be 
 exercised, in the case of a continuous servitude, from the day in 
 which is made an act contrary to the servitude. 
 
 Art. 668. The method of the servitude is prescribed in the 
 selfsame manner that the servitude itself is prescribed. 
 
 Art. 669. The existence of vestiges of works, by which had 
 been practiced a taking of water, is not an impediment to pre- 
 scription; for to iinpede this the existence and conservation in a 
 serviceable state of the works made for the taking must be rees- 
 tablished, as well as the canal of derivation. 
 
550 APPENDIX II-ITALIAN CODE ARTICLES. 
 
 TITLE IV. 
 Of Community of Property. 
 
 Art. 673. The community of property, in default of conven- 
 tional forms or accepted terms, is regulated by the following rules. 
 
 Art. 674. The proportion of participation in a community 
 shall he presumed to be equal unless the contrary is proven. The 
 assembly of participants, as well in the advantages as in the value 
 of common rights, shall be in proportion to their respective inter- 
 ests. 
 
 Art. 675. Each part owner may make use of common prop- 
 erty, provided its employment aid the purpose for which it is 
 intended, and be not at variance with the interests of the com- 
 munity, or in a manner which would impede other participants 
 in the exercise of their rights. 
 
 Art. 676. Each part owner has the right to compel the others 
 to contribute with himself to the expense necessary for the con- 
 servation of common property, except the du-ectory release them 
 or they release themselves by an abandonment of their rights as 
 joint proprietors. 
 
 Art. 677. No part owner may make any change relative to 
 common property, although it appears to him to be of advantage 
 to all, if the others do not consent. 
 
 Art. 678. For the administration and better enjoyment of 
 common property, the decisions of a majority of the part owners 
 shall also be binding on the dissenting minority. There is no 
 majority, except when the votes forming it in the deliberations 
 represent the major part of the interests which are the object of 
 the common property. If a majority cannot be obtained, or if 
 their deliberations may result seriouslj^ to the prejudice of com- 
 mon property, the judicial authority may look into the matter, 
 and if necessary, also 'appoint an administrator of its use. 
 
 Art. 679. Each part owner has full title to his part quota of 
 lands in the association, and a proportionate use and benefit of 
 the whole common property. Each may freely alienate, cede, or 
 hypothecate his part, and also grant its use to others if no personal 
 rights are infringed upon. But the effect of this alienation or 
 hypothecation is limited to the portion which would be under 
 separate control of the participant. 
 
 Art. 680. The creditors or grantees of a part owner, may oppose 
 a division which is being made without their consent, and may in- 
 terfere at their own expense, but cannot impugn a consummated 
 division, except in case of fraud, or a division executed notwith- 
 standing a formal protest, and saving always to these the applica- 
 tion of the rules of debtor or creditor. 
 
IRRIGATION COMMUNITIES. 561 
 
 Art. 681. No one can be forced to remain in community of 
 property, and neither can any one of the part owners demand a 
 disorganization. Nevertheless, a contract which makes anything 
 part of a community property for a fixed period, not more than 
 ten years, is valid. Judicial authority, however, provided weighty 
 and urgent circumstances require it, may order a withdrawal from 
 common property even before the agreed time. 
 
 Art. 682. [Specially relates to common pastures.] 
 
 Art. 683. The withdrawal of community property cannot be 
 demanded by the owners of any part whoste segregation would 
 render the whole unfit for the purposes for which it was intended. 
 
 Art. 684. The rules concerning the distribution of inheritance 
 are applicable to the division of common property among the 
 owners. 
 
552 GENERAL WATER-LAW OF SPAIN. 
 
 APPENDIX m. 
 
 GENERAL LAW OR CODE OF SPAIN* 
 
 SPECIALLY KELATING TO 
 
 WATEE-OOUESES, WATEES, AND lEEIGATION. 
 
 TITLE I. 
 
 Of the Dominion of Terrestrial Waters. 
 
 Chapteb. I — 0/ the Dominion of Rain Waters. 
 
 Article 1. To the owner of a property belong the rain-waters 
 which fall in the same, and during the time they run through it. 
 He may, in consequence, construct, within his own possessions, 
 tanks, reservoirs, cisterns, or ponds to conserve them, or use any 
 other adequate means, always provided that it does not cause in- 
 jury to the public or to third parties. 
 
 Those are regarded as rain-waters, for the purposes of this law, 
 which proceed directly from rains. 
 
 Art. 2. There are of the public domain the rain-waters which 
 run through ravines or shallciw washes, whose channels may be 
 on the public domain. 
 
 Art. 3. A municipal council, giving notice to the governor of 
 the province, can grant authority, to him who applies for it, to 
 construct on the public lands within its municipal estate and juris- 
 diction, cisterns or tanks to collect rain-waters. 
 
 When the permission of a municipal council is refused, the 
 applicant can appeal to the governor of the province, who shall 
 finally determine the matter. 
 
 Chapter II — Of the Dominion of Living Waters, Springs, and 
 
 Streams. 
 
 Art. 4. There are public or of the public domain: 
 First — The waters which rise perennially or intermittently upon 
 lands of the said public domain. 
 
 * Promulgated June 13, 1879, and taking the place of the General Law of 
 Waters of August 3, 1866. 
 
O WNERSHIP OF SPRINGS. 653 
 
 Second — Those, continuous or intermittent, of springs and small 
 streams which flow through their natural channels. 
 Third — The rivers. 
 
 Aet. 5. As well on the lands of private persons, as on those 
 the property of the state, the provinces, or of the towns, the waters 
 which rise on them continually or intermittently, belong to the 
 respective owners, each for his own use and employment, while 
 they run through his property. 
 
 With regard to the waters not usefully employed, passing from 
 the property where they rise, they immediately become public by 
 virtue of the present law. If, after having passed out of the prop- 
 erty where they rise, they enter naturally to run through another 
 of private ownership, either before coming to the public channels 
 or after having run through them, the owner of said property may 
 usefully employ them casually, and the one immediately below, 
 if there should be one, and in this manner, the owners successively, 
 in obedience, however, to that which is prescribed in the second 
 paragraph of Article 10. 
 
 Art. 6. Every casual employment of the waters of springs and 
 small streams in natural channels, may be fully effected by means 
 of work by the owners of the properties situated lower down, always 
 provided that they do not make use of barriers other than of earth 
 and loose stone, and that the quantity of water consumed by each 
 one of them does not exceed ten litres (0.353 cubic feet) per sec- 
 ond of time. 
 
 Aet. 7. The order of preference for the casual employment 
 shall be the following; 
 
 First — The properties through which the waters run before their 
 incorporation with the river, maintaining the order of their prox- 
 imity to the head of the streams, and preserving their right to the 
 casual employment in the entire length of each property. 
 
 Second — The properties fronting or contiguous to the channel, in 
 the order of proximity to the same and preferring always those 
 highest up. 
 
 But it is understood that those lower and bordering properties, 
 which shall have anticipated the utilization by a year and a day, 
 cannot be deprived of it by another, although this may be found 
 situated higher up on the course of the water; and that no casual 
 employment can interrupt nor attack rights previously acquired 
 over the same waters in a lower district. 
 
 Aet. 8. The right to usefully employ indefinitely the waters 
 of springs and small streams, is acquired by the owners of lower 
 lands, and, in their order, of those contiguous to the channel, when 
 they shall have utilized them without interruption, for a term of 
 twenty years. 
 
 Aet. 9. The waters not usefully employed by the owner of the 
 property where they rise, as well as those which are more than is 
 required for their employments, shall go out from the property at 
 
554 APPENDIX III— WA TER-LA W, SPAIN. 
 
 the point of their natural and accustomed channel, unless they 
 can be in some manner led off in the course by which they have 
 originally been taken out. The same is understood for the prop- 
 erty immediately below, in relation to the following, observing 
 always this order. 
 
 Art. 10. If the owner of a property, whence a natural spring 
 flows, does not employ more than the half, the third part, or other 
 fractional portion of its waters, the residue or surplus comes within 
 the conditions of Article 5, in regard to utilizations lower down. 
 
 When the owner of a propert}', whence a natural spring flows, 
 does not usefully employ more than a fractional and fixed part of 
 its waters, he shall continue, in seasons of drought and lowering 
 of the spring, to use and enjoy the same absolute quantity of water, 
 and the loss shall be the misfortune and damage of the irrigators 
 and users lower down, whatever may be their title to enjoy it. 
 
 In consequence of what is ordered here, the properties situated 
 lower down, and those bordering in their turn, shall acquire in the 
 order of their location the option to usefully employ these waters 
 and to strengthen their right by the uninterrupted use of them. 
 
 But it is understood that, in these lower or bordering properties, 
 he who shall anticipate, or should have anticipated by a year and 
 a day the use of the water, cannot be deprived of it by another, 
 even when he should be situated higher up on the course of the 
 water. 
 
 Art. 11. If, after twenty years, counting from the day of the 
 promulgation of the law of the third of August, 1866, the owner oif 
 the property where waters rise naturally, should not have used 
 them, wasting them wholly or partially in any manner whatever, 
 he shall lose all right to interrupt those using or applying the same 
 waters lower down, who for the period of a year and a daj^ con- 
 secutively may have used them. 
 
 Art. 12. There belong to the State the waters found in the 
 site of the construction of public works, though the works were 
 executed by a grantee, nothing to the contrary having been stipu- 
 lated in the concession. Nevertheless, they shall enjoy the gratui- 
 tous use of these waters, as much for the ser^^[ce of the construction 
 as for that of the operation of the same works. 
 
 Art. 13. There belong to the towns, the surplus waters of their 
 fountains, sewers, and public establishments. But if they should 
 have been employed by the owners of the lower lands during the 
 period of twenty years, by virtue of concessions from the municipal 
 councils, or by their tacit consent, the course of these waters can 
 not be changed, nor can the continuation of the employment of 
 them be hindered, except on account of public utility dvily proved, 
 and after indemnification for damages and injuries. 
 
 When temporarily, by reason of greater consumption, droughts, 
 or works, it may be necessary to have surplus waters, those who 
 use them have not the right to be indemnified, even when they 
 
CONTROL OF SPRINGS. 555 
 
 have them by virtue of a concession, unless that for this they may 
 lose their right to these surplus waters when these causes cease. 
 
 Art. 14. As well in the case of Article 5 as in that of Arti- 
 cle 10, always provided that twenty years have transpired from 
 the publication of the law of 1866, should the owner of the prop- 
 erty in which waters spring, after having commenced to use them 
 all or in part, discontinue his employment for the period of one 
 consecutive year and a day, he shall lose the control to all, or to 
 the part of the waters not employed, the right being acquired by 
 those who shall have utilized them for the equal period of a year 
 and a day, according to Articles 10 and 18. 
 
 Nevertheless, the owner of the property where the waters rise, 
 shall always preserve the right to use the waters within the same 
 property, as a motive power or for other uses which do not produce ■ 
 an appreciable waste in the quantity, or alteration in the quality 
 of the waters, prejudicial to the established uses lowei- down. 
 
 Art. 15. The control of mineral waters which run through 
 public channels, pertains, in the same manner as that of common 
 waters, to the owners of the lands in which they rise, and they are 
 for the casual and final employment of the owners of the lower 
 properties and those fronting on the channels, according to that 
 which is ordered in the former articles of this chapter. 
 
 For the purposes of this law, mineral waters are understood to 
 be those which hold in solution useful substances for industry 
 generally, whatever may be their nature. 
 
 Art. 16. The control of mineral-medicinal waters are acquired 
 by the same means as those to surface or subterranean waters: 
 belonging to the owner of the property on which they rise' if he 
 utilizes them, or to the discoverer if he shall apply them, subject 
 to the sanitary regulations. The distances to be observed in the 
 exploration of these special waters, by means of ordinary wells, 
 shafts, and galleries, and artesian wells for rising waters, shall be 
 the same as established for common waters. 
 
 Out of consideration for the public health, the government — the 
 provincial council, the sanitary council, and the council of state 
 approving — can declare the compulsory condemnation of mineral- 
 medicinal waters, when not already employed for healing pur- 
 poses, and of the adjacent lands which are necessary for forming 
 bathing establishments, granting, however, two years preference to 
 the owners to examine the project for themselves. 
 
 Chapter III — Of the Dominion of Dead or Stagnant Waters. ' 
 
 Art. 17. Lakes and marshes formed by nature and covering 
 public lands are of the public domain. 
 
 Lakes, marshes, and ponds formed on the lands of their respect- 
 ive estates, belong to private individuals, to the municipalities, 
 to the provinces, and to the state. Those situated on lands of 
 common profit, belong to the respective towns. 
 
556 APPENDIX III— WA TER-LA W, SPAIN. 
 
 Chapter IV — 0/ the Dominion of Subterranean Waters. 
 
 Art. 18. Subterranean waters belong to the owner of a prop- 
 erty, in full proprietorship, who shall have obtained them on it, by 
 means of ordinary wells. 
 
 Art. 19. All proprietors may freely open ordinary wells to 
 raise water within their own properties, though a diminution of the 
 waters of their neighbors result from them. Nevertheless, the 
 distance of two metres between well and well, within the towns, 
 must be preserved, and fifteen metres in the country, between the 
 new excavation and the wells, tanks, fountains, and permanent 
 canals of neighbors. 
 
 Art. 20. For the purposes of this law, ordinary wells are under- 
 stood to be those which are opened with the exclusive object of 
 accommodating domestic use or the ordinary necessities of life, 
 and those which in the extraction of the water do not employ on 
 the apparatus any other motor than a man [manual power ?] . 
 
 Art. 21. The authorization to open ordinary wells, or draw- 
 wells on the public lands, shall be granted by the administrative 
 authority, in whose charge is found the management and police 
 of the land. He who shall obtain it, shall acquire full ownership 
 of the waters which he may find. In opposition to a resolution 
 which has issued, recourse can be had, on appeal, before the supe- 
 rior hierarchical authority. 
 
 Art. 22. When the development of subterranean waters is 
 sought by means of artesian wells, or by shafts or galleries, he 
 who finds them, and causes them to rise to the surface of the earth, 
 shall be the owner of them forever, without losing his right though 
 they run away from the property where they were discovered, 
 whatever may be the direction which the discoverer wishes to give 
 them while he maintains their control. 
 
 If the owner of the discovered waters should not construct a 
 channel to conduct them through the lower properties which they 
 might cross, and permits them to take a natural course, then the 
 owners of these properties shall commence to enjoy the casual 
 rights which are conferred by articles 5 and 10 in relation to nat- 
 ural upper springs, and the final right which article 10 establishes, 
 with the limitations fixed in articles 7 and 14. 
 
 Art. 23. The owner of any land may search for and fully 
 appropriate by means of artesian wells, or by shafts or galleries, 
 the waters which exist under the surface of his property, provided 
 he does not divert or remove public or private waters from their 
 natural course. 
 
 When, in consequence of the works of an artesian well, shaft, or 
 gallery, a result is threatened which will divert or diminish the 
 public or private waters due to a public service, or to a preexisting 
 private employment by rights legitimately acquired, the alcalde, 
 
SUBTERRANEAN WATERS. 657 
 
 officially, on the motion of the municipal council in the first case, 
 or by means of information from those interested in the second 
 case, may suspend the works. The decision of the alcalde shall 
 be final, if not opposed within the legal term before the governor 
 of the province, who shall then dictate the decision that goes out, 
 previously hearing those interested, and statements and expert 
 opinions. 
 
 Art. 24. The works for developments treated of in the pre- 
 ceding article, shall not be executed within a less distance than 
 40 metres of another's house, nor of any railroad or high road, nor 
 at a less distance than 100 metres from any other exploration or 
 fountain, river, canal, ditch, or public watering place, without the 
 proper permission of the owners, or in their case of the municipal 
 council, before the formation of the final project; nor within the 
 site of fortified posts, without permission of the military authority. 
 
 Neither can the said works be executed within the boundaries 
 of a mineral location, without previous agreement for compensation 
 of losses. In the case in which there should be no agreement, the 
 administrative authority shall fix the conditions of indemnifica- 
 tion, having first obtained the opinion of experts appointed for the 
 purpose. 
 
 Art. 25. Concessions of lands of the public domain, for the 
 purpose of exploring for subterranean waters by means of galleries, 
 shafts, or artesian wells, may be granted by the administration, 
 always taking care of everything relating to the control, the lim- 
 itations of propertyship and useful employment of the waters dis- 
 covered, subject to that which the present law prescribes in respect 
 to these particulars. Lands of the public domain can only be 
 granted for these subterranean explorations, whose surface or soil 
 has not been granted for a diflferent purpose, unless that both may 
 be compatible. In the regulation for the execution of this law 
 rules shall be established which must be followed in the legal pro- 
 ceedings of this class of concessions, in order to leave without in- 
 jury, the preexisting instances of useful employment of the water 
 which have rights legitimately acquired, whether they may be of 
 public or private interest. 
 
 Art. 26. The grantees of mining locations, shafts, and gal- 
 leries for the drainage of mines, shall have the ownership of the 
 waters found in their works, during the time their respective mines 
 are held by them, with the restrictions treated of in the second 
 paragraph of Article 16. 
 
 Art. 27. In the extension and preservation of old mining 
 works in search of water, the distances shall continue to be pre- 
 served which governed for their construction and operation in each 
 locality, always respecting acquired rights. 
 
558 APPENDIX III— WATER-LA W, SPAIN. 
 
 TITLE II. 
 
 Of Beds or Channels op Waters, op Banks and Mar- 
 gins, OP Accretions, and op Works por Protection 
 
 AND POR THE DkAINAGE OP LaNDS. 
 
 Chapter V — 0/ Beds or Channels, Banks, Margins, and Accretions. 
 
 Art. 28. The natural bed or channel of the intermittent 
 streams formed by rain-waters, is the land which they cover 
 during their ordinary floods in the ravines or shallow washes, 
 which serve to receive them. 
 
 Art. 29. The channels referred to in the former article, which 
 run through lands in private ownership, are private property. 
 
 Art. 30. The channels which do not belong to private prop- 
 erty, are of the public domain. 
 
 Art. 31. The private ownership of the beds of rain-waters, 
 does not authorize cultivations to be made in them, nor works to 
 be constructed, which would change the natural course of the 
 waters, to the injury of other parties, or whose destruction by the 
 force of the floods might cause damage to landed properties, fac- 
 tories or establishments, bridges, roads, or towns situated lower 
 down. 
 
 Beds, Banks, and Margins of Rivers and Small Streams. 
 
 Art. 32. The natural bed or channel of a river or of a small 
 stream, is the land which its waters cover in the greatest ordinary 
 floods. 
 
 Art. 33. The beds of all small streams belong to the owners 
 of the cultivated grounds and of the lands which they cross, with 
 the restrictions which Article 81 establishes in relation to the beds 
 of rain-waters. 
 
 Art. 34. There are of the public domain ; 
 
 First — The beds or channels of the small streams, which are 
 not included in the former article. 
 
 Second — The beds or natural channels of rivers, to the extent 
 which their waters cover at their greatest ordinary flood swells. 
 
 Art. 35. The banks are understood to be the lateral borders 
 of the beds of rivers, included between the level of their lowest 
 waters and that which these reach to in their greatest ordinary 
 floodings; and the margins are the lateral zones which are contig- 
 uous to the banks. 
 
 Art. 36. The banks, even when they may be private property 
 by virtue of ancient law or custom, are subject in their whole ex- 
 tent, and the margins in a zone of three metres, to the servitude 
 
CHANNELS AND BEDS. . 559 
 
 of public use, in the general interest of navigation, flotation, fish- 
 ing, and salvage. Nevertheless, when the accidents of the land or 
 other legitimate causes require it, the zone of this servitude shall 
 be expanded or contracted, conciliating as far as possible all in- 
 terests. The regulation shall determine when, in what cases, and 
 in what manner, the distances designated in this article can be 
 ^changed. 
 
 Beds and Borders of Lakes, Marshes, and Ponds. 
 
 Art. 37. The bed or bottom of lakes, marshes, or ponds, is the 
 land which the waters occupy, in these, at their greatest ordinary- 
 height. 
 
 Aet. 38. The beds of the lakes, marshes, and ponds, which 
 do not belong to the state, to the provinces, or to the municipali- 
 ties, or which by special title of possession may be private prop- 
 erty, belong to the owners of the contiguous lands. 
 
 Art. 39. The shores of navigable lakes, which are cultivated, 
 are subject to the servitude of salvage in case of shipwrecks, in 
 the terms established in the law of harbors, in respect to the 
 properties bordering on the sea, and to the embarking, disembark- 
 ing, depositing boats, and other operations for the service of navi- 
 gation at points which the authorities designate. 
 
 Accretions and Abrasions by Waters. 
 
 Art. 40. The lands which may have been occasionally inun- 
 dated by the waters of lakes, or by brooks, rivers, or other streams, 
 will continue to be the property of their respective owners. 
 
 Art. 41. The channels of rivers which have been abandoned 
 by a natural variation of the course of the waters, shall belong to 
 the owners of the bank lands in all their respective lengths. If 
 the abandoned channel separates the properties of different own- 
 ers, the new line of division shall run equi-distant between them. 
 
 Art. 42. When by a navigable or floatable river naturally 
 changing its course, a new channel is opened on private property, 
 this channel shall enter into the public domain. The owner of 
 the property shall recover his submerged land should the waters 
 return to their former channel, and leave it dry either naturally or 
 by works legitimately authorized for that purpose. 
 
 Art. 48. The public channels which remain dry in conse- 
 quence of works authorized by special concession, belong to the 
 grantees, should there be nothing established in the conditions 
 according to which this has been effected. 
 
 Art. 44. When the current of a brook, torrent, or river segre- 
 gates from its bank a known portion of land, and carries it to the 
 properties opposite or to those lower down, the owner of the land 
 
560 APPENDIX III— WATER LA W, SPAIN. 
 
 which the segregated bank bordered retains the ownership of the 
 parcel carried away. 
 
 Art. 45. If a known portion of land segregated .from a bank 
 becomes insulated in a channel, it continues to belong uncondi- 
 tionally to the owner of the land from whose bank it was carried 
 off. The same shall happen when a river dividing into smaller 
 channels, surrounds and insulates any lands. 
 
 Art. 46. The islands, which are formed in the rivers by suc- 
 cessive accumulations from upper abrasions, belong to the owners 
 of the margins or borders nearest to each, or to those of both mar- 
 gins if the island shall be situated in the middle of the river, they 
 having divided it longitudinally into halves. If an island thus 
 formed be further from one margin than from the other, it shall 
 belong solely and entirely to the owner of the nearest margin. 
 
 Art. 47. The increase which lands gradually receive by depos- 
 its and sediments of waters, belong to the owners of such lands 
 bordering on brooks, torrents, rivers, and lakes. The mineral 
 deposits of waters, which could be made useful as such, shall be 
 petitioned for, according to the legislation for mines. 
 
 Floating and Submerged Articles of Property. 
 
 Art. 48. Any one who may recover and save animals, timber, 
 fruit, furniture, and other industrial products, carried away by the 
 current of public waters, or submerged in them, shall immedi- 
 ately deliver them to the local authority, who shall order their 
 storage, or sale at public auction when they cannot preserve 
 them. The discovery shall be announced in the same town, and 
 those adjoining it above, and if within six months reclamation 
 shall be made on the part of the owner, the article or its price 
 shall be given to him, he first paying the costs of keeping, and the 
 tax for salvage, which tax shall be ten per cent. The above period 
 having elapsed, without the owner having reclaimed it, he shall 
 lose his right to it, and all of it shall be restored to the one who 
 found it, he first pajdng the costs of keeping. 
 
 The provisions of the previous paragraph shall cease to hold 
 good from the moment that the owner of the objects shall provide 
 for their salvage. 
 
 Art. 49. The brushwood, branches, and timber which may 
 be floating in the waters, or may be deposited by them in the 
 channel, or on the lands of the public domain, belong to the first 
 person who takes them; those stranded on the lands of private 
 ownership,, belong to the owner of the respective properties. 
 
 Art. 50. The trees uprooted and carried away by the current 
 of the waters belong to the owner of the land where they happen 
 to stop, if they are not reclaimed within one month by their former 
 owners, who must pay the costs occasioned in collecting the trees 
 and putting them in a safe place. 
 
DRAINAGE AND DEFENSIVE WORKS. 561 
 
 Art. 51. The articles submerged in the public channels con- 
 tinue to belong to their owners, but if at the expiration of one 
 year, they do not remove them, they shall belong to the persons 
 who recover them, first obtaining the permission of the local 
 authority. 
 
 If the objects submerged offer an obstruction to the currents, or 
 to the navigation, a reasonable period shall be granted by the au- 
 thorities to the owners, which having passed without using their 
 right, proceedings shall be taken for their extraction as though 
 they were abandoned. 
 
 The owner of the objects submerged in the waters of private 
 ownership, shall ask of the owner of the waters permission to take 
 them out, and in case of refusal, the local authority shall grant it, 
 previously fixing the guarantee for damages and injuries. 
 
 Chapter VI — 0/ TTori-s o/ Defense against Public Waters. 
 
 Art. 52. The owners of properties conterminous with public 
 channels have liberty to make defenses against the waters on their 
 respective margins by means of plantations, palisades, or revet- 
 ments, whenever they may think it useful, giving timely notice 
 thereof to the local authority. Nevertheless, previous notice hav- 
 ing been given, the administration can order such works to be 
 suspended, and even return the things to their former condition, 
 when by these circumstances they threaten to cause injuries to 
 navigation, or floatage of the rivers, divert the currents from their 
 natural course, or produce inundations. 
 
 Art. 53. When plantations, or any work of defense that is 
 planned, may invade the channel, they cannot be executed on 
 navigable or raftable rivers without previous authorization from 
 the minister of public works, and on the other rivers from the 
 governor of the province, always according to that which is pro- 
 vided in the regulation of this law. 
 
 Art. 54. In channels where it is suitable to construct defen- 
 sive works costing little, the governor shall grant a general au- 
 thorization, in order that the owners of the bordering properties, 
 each one in that part of the channel contiguous to his own bank, 
 can construct them, but subjecting them to the conditions which 
 are fixed in the concession, in order to prevent any proprietor 
 from causing injury to others, and according to that which is 
 determined in the regulation. 
 
 Art. 55. When the works projected may be of some impor- 
 tance, the minister of public works, on the application of those 
 who have proposed them, can compel all the proprietors who may 
 be benefited by them to pay the costs, always provided that the 
 majority of them give their consent, computing by the amount of 
 property which each one represents, and that the common utility 
 which these works may subserve shall be completely and scien- 
 36' 
 
562 APPENDIX III— WA TER-LA W, SPAIN. 
 
 tifically shown. In such case each one shall contribute to the 
 payment according to the benefits which he receives. 
 
 Art. '56. Whenever, in order to prevent or control imminent 
 inundations, it may be necessary in case of urgency, to erect tem- 
 porary works, or to destroy those existing, on all classes of prop- 
 erties, the alcalde can sanction the act at once upon his own 
 responsibility; but with the understanding that the losses and 
 injuries occa,sioned shall be indemnified, fixing the interest at 
 iive per cent per annum, from the day on which the damage was 
 caused, until the indemnity has been satisfied. The payment of 
 this indemnity shall be made respectively by the state, the mu- 
 nicipalities, or the private individuals, to whom the property 
 threatened by the inundation belongs, and whose defense had 
 occasioned the losses for which indemnity is due, and subject to 
 the prescriptions of the regulation. 
 
 Art. 57. The works of general interest, provincial or local, 
 necessary to defend towns, territories, roads, or public establish- 
 ments, and to promote the scouring and keeping clear of naviga- 
 ble and floatable rivers, shall be marked out and paid for by the 
 administration, according to that which is prescribed in the gen- 
 eral law of public works. The examination and approbation of 
 the plans 'relative to this class of works belongs to the minister of 
 public works, who shall authorize the execution of the same, after 
 the procedures which shall be determined in the regulation for the 
 execution of the present law. 
 
 Art. 58. The minister of public works shall direct what shall 
 be the study of the rivers, in order to ascertain the best regime 
 of the currents, as also the navigable and floatable divisions, the 
 gauging of their currents, and the means to avoid inundations, 
 to fix the points where it is suitable to make works for scouring, 
 to reclaim overflowed lands, arid to maintain rapid navigation 
 and flotation. 
 
 Art. 59. The minister of public works shall also direct that 
 those parts, basins, and watersheds of the rivers shall be studied 
 which are suitable to maintain foresting communities in the inter- 
 est of the good regimen of the waters. 
 
 Chapter VII — Of the Drying of Swamps and Marsh Lands. 
 
 Art. 60. The owners of swamps, or marshy or flooded lands, 
 who may wish to dry or reclaim them, having obtained the proper 
 authorization, may take from the public lands, the stone and 
 earth, which are considered indispensable fpr the embankments, 
 and other works. 
 
 Art. 61. When swamps or marshy lands belong to various 
 owners, and a piecemeal reclamation being impossible, some of 
 them propose to effect it in common, the minister of public works 
 can compel all of the proprietors to pay collectively for the works 
 designed for this object, provided that the majority approve, under- 
 
SANITARY DRAINAGE OF LANDS. 563 
 
 standing as such, those who represent the major part of the area 
 of the reclaimable land. If any of the proprietors should object 
 to the payment, and prefer to grant to the other owners their part 
 of the reclaimable land, it can be done by means of suitable in- 
 demnification. 
 
 Art. 62. Whenever, on any account, a swamp, or marshy, or 
 inundated tract is declared to be unhealthful, its drying or rec- 
 lamation shall be carried out compulsorily. If it should be 
 private property, the decision shall be made known to the owners, 
 in order that the drainage or reclamation can be arranged within 
 the time which is determined for it. 
 
 Art. 63. If the majority of the owners refuse to carry out the 
 works for drying, the minister of public works can grant the 
 priAdlege to any private person or company who may offer to 
 carry it to the end, first having obtained the approval of a suitable 
 plan. The land reclaimed shall become the property of whoever 
 has carried out the drainage or reclamation, only paying to the 
 former owners the sum corresponding to the tax valuation. 
 
 Art. 64. In case that the owners of the marshy lands declared 
 to be unhealthful do not wish to execute the reclamation, and 
 there may be no private person or company who offer to carry it to 
 the end, the state, the province, or the municipality can execute 
 the works, pa5dng for them with the funds which for this pur- 
 pose are included in their respective estimates, and in each case, 
 according to the general law of public works. When this is done, 
 the state, the province, or the municipality shall enjoy the same 
 benefits which the former article determines, in the mode and 
 form that in it is established, remaining consequently subject to 
 the rules which are dictated for this class of property. 
 
 Art. 65. If the marshes, lakes, or flooded lands declared to 
 be unhealthful belong to the state, and a proposition is presented 
 offering to dry or reclaim them, the author of the proposition 
 shall become the owner of the reclaimed lands, after having exe- 
 cuted the works according to the approved plan. If two or more 
 propositions are presented, the question of competition shall be 
 decided according to articles 62 and 63 of the general law of pub- 
 lic works. 
 
 Art. 66. The applicant for the drying or reclamation of lakes, 
 marshes, or inundated lands belonging to the state, to a commu- 
 nity, or to private individuals, may demand, if it is proper, the 
 declaration for public utility. 
 
 Art. 67. The rules contained in the general law of public 
 works, relative to the authorizations for investigations and the 
 rights of those who obtain them, the declaration for public utility, 
 the obligations of the grantees, the lapsing of the concessions, and 
 the examinations of works executed for the useful employment of 
 public waters, are applicable to the authorizations granted to pri- 
 vate projectors of the drying of marshes and inundated lands, 
 
564 APPENDIX III— WATER-LA W, SPAIN. 
 
 without prejudice to the special concessions which are estabUshed 
 for each case. 
 
 Art. 68. The lands reduced to cultivation by means of drying 
 or reclamation, shall enjoy the privileges of those newly irrigated. 
 
 TITLE III. 
 
 Op the Servitudes on the Subject of Waters. 
 
 Chapter VIII — Of the Natural Servitudes. 
 
 Art. 69. Lower lands are subject to receive the waters which 
 naturally and without the work of man flow from those higher up, 
 as well as the stones or earth which they drag along in their course. 
 But if the waters are produced by artificial diggings, or the sur- 
 plus of irrigating canals, or proceed from industrial establishments 
 which had not acquired this servitude, the owner of the lower 
 property shall have the right to exact compensation for damages 
 and injuries. The owners of lower properties or establishments 
 can refuse to receive the surplus of the industrial establishments 
 which drag down or carry in solution noxious substances intro- 
 duced by the owners of them. 
 
 Art. 70. If in any one of the cases of the preceding article, 
 which confers the right of compensation on the lower property, it 
 should be convenient to the owner of it, to give a direct outlet to the 
 waters, in order to free himself of the servitude without prejudice 
 to the owner above, or to third parties, he can do so at his own 
 cost, as well as employ casually the waters if it suits him, renounc- 
 ing in the meantime the compensation. 
 
 Art. 71. The owner of the lower or serving property, also has 
 the right to make, within it, ditches, embankments, or walls, 
 which, without impeding the course of the waters, will serve to 
 regulate them, or to usefully employ them as the case may be. 
 
 Art. 72. In the same manner the owner of the upper or domi- 
 nant property, may construct, within it, ditches, embankments, 
 or walls, which, without increasing the servitude of the lower prop- 
 erty, will check the current of the waters, keeping back the vege- 
 table soil which they drag along with them, causing injuries to 
 the land. 
 
 Art. 73. When the owner of a property changes the outlet of 
 the waters jDroceeding from an artificial source, according to arti- 
 cles 21 and 68, and with them causes damage to a third party, 
 the latter can exact indemnification or compensation. It shall 
 not be considered a damage to cut off or prevent the employment 
 of surplus waters by those who only enjoyed them casually. 
 
RIGHT OF WAY FOR WATERS. 565 
 
 Art. 74. When the water deposits oii an estate stones, earth, 
 brushwood, or other objects, which, obstructing its natural course, 
 may produce inundations by overflowings, diversion of the waters, 
 or other damages, those interested can require the owner of the 
 property to remove the obstruction, or permit them to remove it. 
 If there should be occasion for compensation for damages, it shall 
 be at the charge of whoever caused them. 
 
 Chapter IX — 0/ the Legal Servitudes. 
 
 Section First — Of the Servitude of Right-of-Way for Water. 
 
 Art. 75. The enforced servitude for a conduit can be imposed 
 for the conveyance of waters intended for any public service, 
 which does not require expropriation of lands. It is the duty of 
 the minister of public works, to decree the servitude for works at 
 the charge of the state, and to the governor of the province, for 
 the provincial and municipal works, according to the procedures 
 which the regulation prescribes. 
 
 Art. 76. If the conduit should have to cross the communal 
 roads, the permission of the alcalde shall be given; and when it 
 is necessary to cross public roads or channels, the governor of the 
 province shall grant it, in the form which the regulation pre- 
 scribes. When it should be necessary to cross navigable canals, 
 or navigable and floatable rivers, the permission of the governor 
 shall be given. 
 
 Art. 77. Enforced servitude for a water conduit can also be 
 imposed for objects of private interest in the following cases: 
 
 First — The establishment or increase of irrigation. 
 
 Second — The establishment of baths and factories. 
 
 Third — The drying of swamps and marshy lands. 
 
 Fourth — The escape or outlet of waters proceeding from artifi- 
 cial openings. 
 
 Fifth — Outlets for running and drainage waters. 
 
 In the first three cases the servitude can be imposed not only 
 for the conveyance of the necessary waters, but also for the escape 
 of the surplus. 
 
 Art. 78. In the cases of the former article, it is the duty of the 
 governor of the province to authorize and decree the servitude for 
 a water conduit. Those who suffer injuries from the decisions of 
 the governor can interpose the recourse of a hearing before the 
 minister of public works, within the term of thirty days, and to 
 appeal in turn to the administrative courts, conforming to that 
 which is established in article 251. 
 
 Art. 79. The proceedings to prove the utility of that which is 
 intended to be imposed, shall in every case precede the decree for 
 the establishment of the servitudes, by hearing the owners of the 
 properties, and those of the municipalities or provinces through 
 
566 APPENDIX III— WA TER-LA W, SPA IN. 
 
 which they radiate, who have to suffer the burden, in whatever 
 the decision affects them or the state. 
 
 Art. 80. The owner of the land over which it is intended to 
 impose the enforced servitude for a water conduit, can oppose it for 
 either of the following causes- 
 
 First — That he who applies for it is not the owner or grantee of 
 the water or of the land on which he intends to use it for objects 
 of private interest. 
 
 Second — That it can be established over other properties with 
 equal advantage for him who attempts to impose it, and with less 
 inconvenience to him who has to suffer it. 
 
 AuT. 81. If the opposition is raised on the first of these causes 
 which are expressed in the former article, and it is accompanied 
 by documentary evidence of its existence, the course of the ad- 
 ministrative proceeedings shall be suspended until the ordinary 
 tribunals shall decide the question of ownership. 
 
 If the opposition should be on the second category or made in 
 the other manner, it shall be conducted and determined by hear- 
 ing those interested. In every concession for a servitude the invo- 
 cation of administrative court proceedings shall be understood to 
 be reserved for those persons whose rights are affected by the in- 
 convenience. 
 
 Art. 82. When, for objects of public interest, the imposition 
 of enforced servitude for a conduit is solicited by private persons, 
 the procedure of the petitioners shall be conducted in the manner 
 which the regulation for the execution of the present law provides. 
 
 Art. 83. The enforced servitude for a conduit cannot be im- 
 posed for objects of private interest, upon buildings, nor upon gar- 
 dens or orchards existing at the time of making the petition. 
 
 Art. 84. Neither can the enforced servitude for a conduit be 
 located through another preexisting conduit; but if the owner of it 
 consents, and the owner of the serving property refuses, the proper 
 proceedings shall be instituted to compel the owner of the property 
 to submit to the new inconvenience, previous indemnification being 
 made if it occupies a larger part of the land. 
 
 Art. 85. When an irrigated tract of land which receives the 
 water from only one point, is divided by means of inheritance, 
 sale, or any other title, between two or more owners, those of the 
 upper parts are obliged to give passage to the water as a servitude 
 of aqueduct for irrigation of the lower parts, without being able to 
 exact indemnification for it, having stipulated nothing to the con- 
 trary. 
 
 Art. 86. The enforced servitude for a water conduit may be 
 established : 
 
 First — With an open ditch, when it shall not be dangerous on 
 account of its depth or situation, nor shall offer any other incon- 
 venience. 
 
RIGHT OF WAY FOR WATERS. 567 
 
 Second — With a covered ditch, when its depth shall require it, 
 its proximity to buildings or roads, or for any other similar reason, 
 in the opinion of the competent authorities. 
 
 Third — With tubes or pipes, when other waters already appro- 
 priated can be absorbed, when the waters conveyed can be infected 
 by others, or absorb noxious substances, or cause damage to works 
 or buildings; and always pro\ided that from the measure the 
 necessary results follow for the purpose for which it was intended. 
 
 Art. 87. The enforced servitude for a conduit can be estab- 
 lished temporarily or perpetually. It shall be considered by the 
 effects of this law perpetual, when its dm-ation exceeds six years. 
 
 Aet. 88. If the ser\'itude should be temporary, the double of 
 the rent corresponding to the duration of the inconvenience, shall 
 be previously paid to the owner of the land, for the part which has 
 been occupied, with the addition of the amount of damages and 
 injuries to the rest of the property, including those which proceed 
 iram. its division by the interposition of the conduit. Moreover, it 
 shall be the duty of the owner of the dominant estate to replace 
 things in their former condition, the servitude having terminated. 
 If it should be perpetual, the value of the land occupied shall be 
 paid, and that of the damages and injuries which have been 
 caused to the rest of the property. 
 
 Art. 89. A temporary servitude cannot be prolonged, but it 
 may be converted into a perpetual one, without the necessitj' of a 
 new concession, the grantee paj-ing what is established in the for- 
 mer article, previously deducting that which was paid for the tem- 
 porary servitude. 
 
 Art. 90. All the works necessary for the construction, preserva- 
 tion, and cleaning of the conduit, shall be paid for by him who has 
 appUed for and obtained the servitude. For this purpose, he is 
 authorized to occupy temporarily the land indispensable for the 
 deposit of materials, previously paying for damages and injuries, 
 or giving sufficient security in case of their not being easily ascer- 
 tained, or that those interested do not agree to them. These or 
 the administration can compel him to execute the necessary works 
 and cleaning in order to prevent stoppages or filtrations which 
 produce deteriorations. 
 
 Art. 91. On establishing an enforced servitude for a conduit, 
 the width which the canal and its margins ought to have shall be 
 fixed in consideration of the nature and configuration of the land, 
 according to the quantity of water which it will have to carry. 
 
 Art. 92. To the enforced servitude for a conduit, the right of 
 passage on its margins for its exclusive use is inherent. 
 
 Art. 93. If the conduit should cross pubUc or private roads, 
 of whatever nature they may be, he who has obtained the conces- 
 sion shall be obliged to construct and maintain the necessary cul- 
 verts and bridges; and if it should have to cross other conduits it 
 
568 APPENDIX III— WA TER-LA W, SPAIN. 
 
 shall do so in a manner which will not retard or accelerate the 
 flow of the waters, nor diminish their discharge, nor deteriorate 
 their quality. 
 
 Art. 94. When the owner of a conduit which crosses the lands 
 of others, petitions to enlarge its capacity so that it will receive a 
 greater quantity of water, there shall be observed the same pro- 
 cedures by which it was established. 
 
 Art. 95. The owner of a canal may protect its margins with 
 sods, stakes, walls, or slopes of loose stone, but not with plantations 
 of any kind. Neither can the owner of the servient estate make 
 plantations, nor any operation of cultivation, within the same mar- 
 gins, and the roots which penetrate into them may be cut off by 
 the owner of the conduit. 
 
 Art. 96. The servitude for a conduit does not prevent the 
 owner of the servient estate from fencing and inclosing it, as also 
 from building over the conduit itself, in such manner that it does 
 not cause injury to it, nor prevent necessary repairs and cleanings. 
 These, the owner of the conduit shall duly execute, giving pre- 
 vious notice to the owner, tenant, or agent of the ser^dent estate. 
 
 If, in order to clear and clean it, it should be necessary to des- 
 stroy some part of the structure, the cost of its repair shall be at 
 the expense of whoever built it over the canal, in case that he has 
 not left suitable openings or gaps for this service. 
 
 Art. 97. The owner of the servient estate may construct 
 bridges over the aqueduct, in order to pass from one to another 
 part of his estate ; but he shall make them of the necessary solid- 
 ity, and in such manner that they do not diminish the dimen- 
 sions of the conduit, nor obstruct the flow of the water. 
 
 Art. 98. In every canal or conduit, the water, the channel, 
 the basins, and the margins shall be considered as an integral 
 part of the property or structure to which the waters are dedicated. 
 
 Art. 99. No one can, except in the cases of articles 96 and 97, 
 construct a building or bridge over the canal or conduit of another, 
 nor take water, nor usefully employ the products of it, nor that of 
 its margins, nor utilize the power of the current, without the ex- 
 press consent of the owner. 
 
 Neither may the owners of the lands which a canal or conduit 
 passes over, or by whose boundaries it runs, claim the right of 
 possession to the useful employment of its channel or margins, 
 unless founded on titles of property expressive of such right. 
 
 If the canal shall have been of immemorial construction, or, 
 from any cause, the width of its channel should not have been 
 fully determined, it shall be fixed according to article 91, when 
 there should be no remains and old vestiges which will prove it. 
 
 In the canals belonging to communities of irrigators, that which 
 is prescribed in the municipal ordinances shall be observed, in re- 
 lation to the useful employment of the streams, and of the chan- 
 nels and margins. 
 
ABUTMENT FOR DAMS. 669 
 
 Art. 100. A concession for a legal servitude for a conduit over 
 the lands of others, shall lapse if within the time which should 
 have been fixed, the grantee should not have made use of it, even 
 after having fully satisfied the owner of each serving estate for the 
 value, according to article 88. 
 
 A servitude already established shall be extinguished: 
 
 First — By consolidation, or by uniting in one person the owner- 
 ship of the waters, and that of the lands affected by the servitude. 
 
 Second — By the expiration of a minimum period of ten years, 
 fixed in the concession for a temporary servitude. 
 
 Third — By not using it during the period of twenty years, either 
 from impracticability or negligence on the part of the owner of the 
 servitude, or by acts of the owner of the servient estate contrary 
 to it, without opposition from the owner of the dominant estate. 
 
 Fourth — By compulsory alienation on account of public utility. 
 
 The use of a servitude for a conduit, by any one of joint owners, 
 preserves the rights of all, preventing prescription by want of use. 
 A temporary servitude for a conduit having been extinguished, by 
 the passing of the time and the maturity of the term, the owner of 
 it shall only have the right to employ the materials in their orig-- 
 inal condition. The same shall be understood in regard to that 
 of a perpetual right of conduit, whose servitude may have been 
 extinguished by impracticability or disuse. 
 
 Art. 101. The urban servitudes for a conduit, canal, fountain, 
 ■drain, sewer, and other establishments for the public and private 
 use of towns, buildings, gardens, and factories, shall be governed 
 by the general and local ordinances of urban police. 
 
 Those proceeding from private agreements which are not af- 
 fected by the attributes of municipal corporations, are governed 
 by the common laws. 
 
 Section Second — Of the Servitude of Abutment for Weirs, for Dams, 
 or for Partitioners. 
 
 Art. 102. The enforced servitude for abutments can be imposed 
 when he who intends to construct the weir is not the owner of the 
 banks or the lands where it is necessary to place them, and the 
 water which is intended to be taken by it is intended for a public 
 service, or that of the private interests embraced in article 77. 
 
 Art. 103. The concessions for this class of servitudes shall be 
 granted by the administration, in the form and according to the 
 terms prescribed in the first section of this chapter. 
 
 Art. 104. The enforced servitude for the abutment of a weir 
 having been determined, the value which is equitable for the occu- 
 pation of the land shall be paid to the owner of the serving estate 
 or estates, and afterwards they shall be indemnified for the dam- 
 ages and injuries which the lands shall have experienced. 
 
 Art. 105. He who, in order to irrigate his land or to improve 
 
570 APPENDIX III— WATER-LA W, SPAIN. 
 
 it, shall require to construct a dam or partitioner in the canal or 
 irrigating channel from which he has to obtain water, can, if with- 
 out harm or loss to the other irrigators, require the owners of the 
 margins to permit its construction, first paying for damages and 
 injuries, including those which originate from the new servitude. 
 
 Art. 106. If the owners of the margins should oppose it, the 
 alcalde, after having heard them and the syndicate intrusted with 
 the distribution of the water, if there should be one, or in default 
 of this, the municipal council, can grant the permission. From the 
 decision of the alcalde an appeal can be taken before the governor 
 of the province. 
 
 Section Third — Of the Servitude of Watering Places, and of Drawing 
 
 Water. 
 
 Art. 107. The enforced servitudes for watering places and for 
 drawing water can only be imposed for the purpose of public util- 
 ity, in favor of some town or village, after paying the proper com- 
 pensation. 
 
 Art. 108. Hereafter, these servitudes cannot be imposed on 
 ordinary wells, cisterns, or tanks, nor on buildings or lands inclosed 
 by walls. 
 
 Art. 109. The servitudes for watering places, and for drawing 
 water, carry with them the obligation of the serving estates to give 
 passage to persons and cattle as far as the place where they have 
 to use them; requiring ample indemnification, however, for this 
 service. 
 
 Art. 110. The rules which have been established for the grant- 
 ing of concessions for the right of way for a conduit, are applica- 
 ble to the concessions for this class of servitudes. Having made 
 the decree according to its object and the circumstances of the 
 locality, the width of the road or path which is to lead to the water- 
 ing place or to the point intended for drawing water, shall be 
 fixed. 
 
 Art. 111. The owners of the serving estates can change the 
 direction of the road or path intended for the use of their servi- 
 tudes, but not their width or entrance, and in every case so that 
 the variation will not injure the use of the servitude. 
 
 Section Fourth — Of the Servitude for Tow-paths and other things 
 inherent to Riparian Properties. 
 
 Art. 112. The properties contiguous to the banks of navigable 
 or floatable rivers are subject to the servitude of a tow-path. The 
 width of this shall be one metre if intended for footmen, and two 
 metres if for. horsemen. When the slope of the land or other ob- 
 stacles require it, the tow-path shall be opened through the route 
 most convenient; but in this case, and always when the road 
 
SERVITUDES ON BANK LANDS. 571 
 
 passes through the adjacent properties, more than the zone 
 marked out for the tow-path, the owners of them shall be paid 
 the value of the land which it occupies. 
 
 Art. 113. The government, in classifying the navigable and 
 floatable rivers, shall determine the margin of the same, in every 
 situation, on which the tow-path may be taken. 
 
 Art. 114. On the rivers which hereafter shall acquire navi- 
 gable or floatable conditions, by virtue of works which shall have 
 been executed on them, the corresponding indemnification shall 
 precede the establishment of the tow-path, according to the law 
 of enforced expropriation. 
 
 Art. 115. When a river ceases permanently to be navigable 
 or floatable, the servitude for a tow-path shall cease also. 
 
 Art. 116. The servitude for a tow-path is exclusively for the 
 service of river navigation and flotation. 
 
 Art. 117. For navigable canals, the servitude for a tow-path 
 shall not be imposed, except in the case of its necessity being 
 proved. 
 
 Art. 118. Neither plantations, cornfields, hedges, ditches, nor 
 other works or cultivations which obstruct its use, can be made 
 on the tow-path. Nevertheless, the owner of the land can utilize 
 exclusively the underwood and grass which naturally grows on it. 
 
 Art. 119. The branches of the trees which present obstacles 
 to navigation or flotation, and to the tow-path, shall be cut off to a 
 convenient height. 
 
 Art. 120. The riparian properties are subject to the servitude 
 under which the ropes or cables necessary for the establishment 
 of ferry-boats, are held or made fast, flrst receiving indemnifica- 
 tion for damages and injuries; also, in extreme cases, to consent to 
 the casual fastening of ships or floating objects, also being indem- 
 nified for the same. 
 
 Art. 121. If, in order to prevent the floods from carrying away 
 timbers or other objects, conveyed by floating in the rivers, it 
 should be necessarj' to draw them out, and deposit them on the 
 riparian properties, the owners of these cannot prevent it, and 
 only have the right to payment for damages and injuries. For 
 this the timbers or objects shall be specially held as security, and 
 these shall not be removed until their conductors have made pay- 
 ment or given security. 
 
 Art. 122. Likewise the riparian properties are obliged to con- 
 sent, that merchandise discharged and saved in case of damage, 
 either by shipwreck or other urgent necessity, shall be deposited 
 on them, the same being held as security for the payment of dam- 
 ages and injuries in the terms of the former article. 
 
 Art. 123. The owners of the margins of the rivers are obliged 
 to allow fishermen to stretch and dry their nets on them, and 
 
672 APPENDIX III— WA TER-LA W, SPAIN. 
 
 deposit temporarily the product of the fishery, without entering 
 into the estates, nor to go more than three metres from the banks 
 of the rivers, according to article 36, unless the accidents of the 
 land require in some cases the fixation of a greater width. Where 
 the servitude for passage through the margins does not exist for 
 the common employment of the waters, the governor can establish 
 it, deterinining its width, the corresponding indemnification hav- 
 ing been previously made. 
 
 Art. 124. When the channels of rivers or ravines have to be 
 cleared and cleaned of sand, stones, or other objects deposited 
 by the waters, which, by their hindrance, threaten to obstruct or 
 deflect their course, the riparian properties are subject to the tem- 
 porary servitude and deposit of the materials taken out; the dam- 
 ages and injuries having been paid, or sufficient security given. 
 
 Akt. 125. The establishment of all these servitudes, including 
 that of passage through the margins of rivers for common utiliza- 
 tions of the waters, in the degrees and extent which have been 
 previously determined for them in the first section of this chapter, 
 is the duty of the administration. 
 
 TITLE IV. 
 
 Op the Useful Employment of Public Waters. 
 
 Chaptee. X — 0/ Common Utilizations of Public Waters. 
 
 Section First — Of the Employment of Public Waters for Domestic, 
 Agricultural, and Manufacturing Purposes. 
 
 Art. 126. While the waters run through their natural and 
 public channels, all may use them for drinking, washing clothes, 
 vessels and any other objects, for bathing, and watering or wash- 
 ing horses or cattle, subject to municipal police rules and regu- 
 lations. 
 
 Art. 127. In the waters which, artificially removed from their 
 natural and public channels, run through canals, ditches, or open 
 aqueducts, although they pertain to private grantees, all may 
 draw and take in vessels what they require for domestic or indus- 
 trial purposes, and for the irrigation of isolated plants; but the 
 drawing must necessarily be made by hand, without any kind of 
 machine or apparatus, and without stopping the course of the 
 water or injuring the margins of the canal or ditch. Nevertheless, 
 the authority will limit the use of this right when it causes inju- 
 ries to a grantee of the waters. It is understood that no one can 
 pass through private property to search for or to use water, without 
 obtaining permission from the owner. 
 
EMPLOYMENT OF PUBLIC WATERS. 573 
 
 Art. 128. In the same manner, in the canals, ditches, or 
 any uncovered aqueducts of public waters, although temporarily 
 the property of grantees, all can wash clothes, vessels, or other ob- 
 jects, provided that by it they do not injure the margins, and that 
 the use for which the waters are intended does not require that 
 they should be preserved in a state of purity. But they cannot 
 wash nor water cattle or horses, except precisely at the places 
 intended for that purpose. 
 
 Section Second — Of the Occupation of Public Waters for Fishing. 
 
 Abt. 129. All may fish in the public channels, subject to the 
 laws and police regulations which have been especially dictated 
 concerning fishery, provided that they do not hinder navigation 
 and flotation. 
 
 Art. 130. In the canals, ditches, or aqueducts for the convey- 
 ance of public waters, although constructed by the grantees of 
 the latter, and unless the privilege of fishing has been reserved for 
 them Jay the conditions of the concession, all may fish with hooks, 
 nets, or baskets, subject to the special regulations for fishing, pro- 
 vided that they do not obstruct the course of the water nor inj ure 
 the canals or their margins. 
 
 Art. 131. In everything which relates to the construction of 
 inclosures made with reeds, or any other kind of apparatus what- 
 ever, intended for fishing, as well in the navigable and floatable 
 rivers as in those which may not be, the rulings in force or the 
 laws and regulations which may have been dictated on this sub- 
 ject shall be observed. 
 
 Art. 132. The owners of staked inclosures or fisheries, estab- 
 lished in the navigable or floatable rivers, shall have no right to 
 compensation for damages which boats or timbers in their navi- 
 gation or flotation cause them, unless there is on the part of those 
 in charge of them an infringement of the general ordinances, mal- 
 ice, or evident neglect. 
 
 Art. 133. In the waters of private property, and in those 
 granted for the establishment of fish-ponds, or for breeding fish, 
 the owners or grantees solely may fish, or those who have obtained 
 permission from them, without other restrictions than those relat- 
 ing to the public health. 
 
 Section Third— Of the Utilization of Public Waters for Navigation 
 
 and Flotation. 
 
 Art. 134. The government, after examination, will designate, 
 by means of royal decrees, the rivers which altogether or in part 
 are to be considered navigable or floatable. 
 
 Art. 135. The designation of the places for the embarkation 
 of passengers and merchandise on the navigable rivers, and for 
 
574 APPENDIX III— WA TER-LA W, SPAIN. 
 
 the formation and stopping of floats or rafts on the floatable rivers, 
 is a power of the governor of the province, after making examina- 
 tion. The lands necessary for these uses shall be acquired by en- 
 forced expropriation, when they are private property. 
 
 Art. 136. The works for canalizing or making navigable or 
 floatable the rivers which are not so naturally, will be executed 
 according to that which is prescribed in the general law for pubUc 
 works. 
 
 Art. 137. When, in order to convert a river into a navigable 
 or floatable one by artificial means, it may be necessary to de- 
 stroy factories, dams, or other works lawfully constructed in their 
 channels or on their banks, or to deprive of irrigation or other 
 applications those who by right have enjoyed them, compulsory 
 expropriation and compensation for damages and injuries shall 
 first be made. 
 
 Art. 138. The navigation of rivers is entirely free for every 
 class of national or foreign ships, subject to the general and special 
 laws and regulations for navigation. 
 
 Art. 139. On the rivers not declared navigable nor floatable, 
 every one who may be an owner of their banks, or obtain permis- 
 sion of those who are, can establish ferry-boats for the service of 
 their estates, or for the use of the industry to which they devote 
 them. 
 
 Art. 140. On the rivers merely floatable the conveying of tim- 
 bers cannot be carried on, except in the seasons which the minister 
 of public works designates for each one of them. 
 
 Art. 141. When on the rivers not declared floatable, flotation 
 can be carried on in seasons of great floods, or with the aid of 
 movable weirs, the governor of the province, having previously 
 examined it, can authorize it, provided that it does not injure the 
 irrigations and industrial estabhshments, and that the petitioners 
 give security for the payment of damages and injuries. 
 
 Art. 142. In the navigable or floatable rivers no dam can be 
 constructed without the necessary locks and openings or channels 
 for the navigation and flotation, and salmon flsh-ladders in the 
 rivers where they may be necessary for the protection of this class 
 of fish; the maintenance of all these works being at the cost of 
 the owners of them. 
 
 Art. 143. On the navigable and floatable rivers the masters 
 of vessels and conductors of movables conveyed by floating, shall 
 be responsible for the damages which they severally occasion. 
 
 For passing the bridges, either public or private works, the mas- 
 ters and conductors shall be governed by the rules and ordinances 
 of the authorities. If they cause any injury they shall pay all 
 the expenses which their repair occasions, the accounts being pre- 
 viously proven. 
 
EMPLOYMENT OF PUBLIC WATERS. 575 
 
 Art. 144. These liabilities shall be as liens on the vessels or 
 floating eiFects, other sufficient security not having been given, 
 without prejudice to the claim which the owners hold against the 
 masters or conductors. 
 
 Art. 145. All the timber and other floating effects which go in 
 charge of the same conductor, even when they belong to different 
 owners, shall be responsible for the payment of the damages and 
 injuries which these same effects cause. 
 
 The owner or owners of the timber or other effects, which are 
 arrested and sold in this case, can reclaim from the others the 
 repayment of the part which each one ought' to pay, without injury 
 "to the claim which all have against the conductor. 
 
 Art. 146. The rules in the former article shall be observed 
 also, when by floods or other causes, two or more convoys of tim- 
 ber or floating effects, become so mixed up that it is impossible to 
 •determine to which of them the effects causing the damage belong. 
 In such case, they shall be considered as only one convoy, and the 
 proceedings shall be taken against any one of the conductors, for 
 whom, without injury, the right shall be held to reclaim from the 
 others the payment of that which properly corresponds to them. 
 
 Chapter XI — Of Special Useful Employments of Public Waters. 
 
 Section First — Of the Concession of Utilization Privileges. 
 
 Art. 147. An authorization is necessary for the employment 
 of public waters, dedicating them specially to undertakings of 
 public or private interest, excepting the cases spoken of in articles 
 6, 174, 176, 177, and 184 of the present law. 
 
 Art. 148. He who shall have a recognized right to the public 
 waters of a river or stream, without having made use of them, or 
 having used only a part of them, shall have it preserved intact for 
 the space of twenty years, counting from the promulgation of the 
 law of the third of August, 1866. This time having passed, such 
 rights shall lapse for the part .of the waters not usefully employed, 
 without prejudice to that which is laid down by the general rule 
 in the following article. In such case that which is laid down in 
 articles 5, 6, 7, 11, and 14 of the present law is applicable to the 
 farther useful employment of the waters. 
 
 For all cases, when the public inquiry for any concession of 
 waters is to be held, the holder of these rights shall be obliged to 
 prove them, in the manner and time which the regulations point 
 out. If compulsory expropriation should be ordered, it shall be 
 carried to an end, the due indemnification being previously made. 
 
 Art. 149. He who during twenty years should have enjoyed 
 an useful application of public waters, without opposition from the 
 .authorities or third patties, shall continue to enjoy it, even when 
 he cannot prove that he obtained the proper authorization. 
 
576 APPENDIX III— WA TER-LA W, SPAIN. 
 
 Art. 150. Every concession for the useful employment of pub- 
 lic waters is understood to be made without injury to third par- 
 ties, and preserving the rights of private individuals. Wiljh 
 respect to the duration of these concessions, it shall be determined 
 in each case according to the regulations of the present law. 
 
 Aet. 151. Concessions for the useful employment of pubhc 
 waters are understood to include those of lands of the public do- 
 main necessary for the works of the dam and for the canals and 
 ditches. With respect to the lands belonging to the state, to the 
 provinces, to the towns or private persons, proceedings shall be con- 
 ducted according to the rules for imposing enforced servitudes, 
 without prejudice to that which is arranged in article 78; or if 
 expropriation on account of public utility shall be invoked, the 
 proper examinations and other formalities which belong to it 
 shall previously be taken. 
 
 Art. 152. In every concession for an useful employment of 
 public waters, its nature, the quantity of water conceded in cubic 
 metres per second, and, if it should be for irrigation, the extent of 
 the land in hectares which may have to be irrigated, shall be 
 fixed. If in emplo3rments previous to the present law, the quantity 
 of water should not have been fixed, only that necessary for the 
 object of the utilizations, is understood to be granted, which the 
 minister of public works shall determine by hearing those inter- 
 ested, having the power to require them to establish suitable 
 modules. 
 
 Art. 153. The waters conceded for one useful employment 
 cannot be applied to a different one, without the observance of 
 formalities such as are treated of for a new concession. 
 
 Art. 154. The administration shall not be responsible for the 
 failure or diminution, which may result in the quantity expressed 
 in the concession, although it may be, that it was occasioned by 
 error or some other cause. 
 
 Art. 155. Whenever in the concessions, or in the employ- 
 ments of determined quantities of water for a fixed space of time, 
 no other thing is expressed, the continuous use for every moment 
 of time is understood. If it should be for days, the natural day 
 of twenty-four hours from midnight shall be understood; if it 
 should be during the day or night, it shall be understood as 
 between the rising and setting of the sun, and if it should be for 
 weeks, they shall be reckoned from twelve o'clock on Saturday 
 night; if it should be for feast days, or the exclusion of them, those 
 shall be understood, in which, according to the rule, work cannot 
 be done, considering only as feast days those which were so at the 
 time of the concession or of the contract. 
 
 The application of these orders and minute details concerning 
 the manner and time of the enjoyment of the water, are recom- 
 mended for the administrative regulations, or for the ordinances 
 of the irrigating communities of which chapter 13 treats. 
 
EMPLOYMENT OF PUBLIC WATERS. 577 
 
 Art. 156. Authorizations for making examinations of all pro- 
 posed useful employments of water shall be subject to that which 
 is prescribed in article 157 of the general law of public works. 
 
 Art. 157. Concessions for special useful employments of pub- 
 lic waters, as well as those for drainage and reclamation, shall 
 be ordered, preferring the schemes of the greatest importance and 
 utility, and in equality of circumstances, those which had been 
 first presented. All relative to the projects, privileges, the execu- 
 tion, inspection, and reception of the works which the utilizations 
 require to be the object of the concession, shall be governed by 
 the regulations of the general law of public works. 
 
 Art. 158. Concessions for useful emplo3mients of water, shall 
 become extinct, by not having complied with the conditions and 
 terms according to which they have been granted. 
 
 Art. 159. In all useful employment of public waters for navi- 
 gable canals or irrigation, ditches, and sanitary improvements, 
 the waterfalls, factories, and industrial establishments which shall 
 have been constructed and erected upon them, shall be the per- 
 petual property of the grantees. 
 
 Art. 160. In concessions for special useful employments of pub- 
 lic waters, the following order of preference will be observed: 
 
 First — The supply of towns. 
 
 Second — The supply of railroads. 
 
 Third — Irrigations. 
 
 Fourth — Canals for navigation. 
 
 Fifth — Mills and other factories, ferryboats, and floating bridges. 
 
 Sixth — Basins for fish-ponds or fish breeding places. 
 
 Within each class, the undertakings of the greatest importance 
 and utility shall have the preference, and, other things being 
 equal, those who shall have first solicited the privilege. 
 
 In every case, the common employments of water clearly ex- 
 pressed in sections one, two, and three of the former chapter will 
 be preeminently respected. 
 
 Art. 161. Every special useful employment of public waters 
 is subject to enforced expropriation on account of public utility, 
 first paying the proper indemnification, in favor of another useful 
 emplo5anent which precedes it, according to the order fixed in the 
 former article, but not in favor of those which follow it, except by 
 virtue of a special law. 
 
 Art. 162. In urgent cases of fire, inundation, or other public 
 calamity, the authorities or their subordinates can act summarily, 
 and without process or previous indemnification, but in subjection 
 to ordinances and regulations, for the waters necessary to restrain 
 or to avoid the damage. If the waters should be public, there will 
 be no cause for indemnification, but if they should have been ap- 
 plicable for industrial or agricultural purposes, or should have 
 
 37' 
 
578 APPENDIX III— WATER- LA W, SPAIN. 
 
 been private property, and their diversion should have occasioned 
 appreciable injury, there shall be immediate compensation. 
 
 Art. 163. In every concession for canals of navigation and 
 irrigation, or for ditches, as well as for undertakings for drainage 
 and sanitary improvement, the foreign capital which is employed 
 in the construction of the works and the acquisition of the land, 
 remains under the protection of the state, and is exempt from 
 reprisals, confiscations, and seizures on account of war. 
 
 Section Second — Of the Useful Employment of Public Waters for the 
 Supply of Populations. 
 
 Art. 164. Only when the normal flow of water which a popu- 
 lation enjoys should not amount to 50 litres (11 gallons) per day 
 per inhabitant, and of these 20 for drinking purposes, can there be 
 allowed to it, of that intended for other useful employments, the 
 quantity necessary to make up that flow, a proper indemnification 
 having previously been made. 
 
 Art. 165. If the population recpiiring drinkable waters, already 
 uses a quantity of them not drinkable, but applicable to other pub- 
 lic and domestic uses, they shall be allowed to make up of the 
 first, twenty litres (4.4 gallons) daily for each inhabitant, in case 
 that the proper indemnification is made, although this quantity, 
 added to that not drinkable, exceeds the fifty litres fixed in the 
 former article. 
 
 Art. 166. If the water for the supply of a population is taken 
 directly from a river whose flow may have an owner or owners, 
 those who are deprived of the useful employment of water legiti- 
 mately acquired, shall be previously indemnified. 
 
 Art. 167. The enforced alienation of waters of private owner- 
 ship, for the supply of a population, cannot be decreed, except 
 where the minister of public works may have decided, in conse- 
 quence of examinations made for the purpose, that there are no 
 public waters which can be readily applied to the said purpose. 
 
 Art. 168. Notwithstanding the provisions of these former arti- 
 cles, the governor of the province, in seasons of extraordinary 
 drought, the provincial commission approving, can sanction the 
 temporary expropriation of the water necessary for the supply of 
 a population, by means of the proper indemnification in favor of 
 private individuals. 
 
 Art. 169. When the concession is allowed in favor of a private 
 -undertaking, and in' case the population which it has to supply 
 should not have the twenty litres of drinking water for each inhab- 
 itant (which article 164 speaks of), the tans' of prices which can 
 be received for furnishing the water and pipes shall be fixed in the 
 said concession. 
 
EMPLOYMENT OF PUBLIC WATERS. 579 
 
 Art. 170. The concessions of which the former article speaks, 
 shall be temporary, and their duration shall not exceed 99 years; 
 which time having transpired, all the works, as well as the pipes, 
 will remain for the benefit of the local community, but with the 
 obligation on the part of the municipal council to respect the con- 
 tracts between the company and private persons for the supply of 
 water to their houses. 
 
 Art. 171. It is the duty of municipal councils to frame regu- 
 lations for the management and distribiition of the waters within 
 the towns, subject to the general administrative provisions. The 
 formation of these regulations must always be prior to the granting 
 of the concessions of which the former articles treat. The con- 
 cession once being made, the regulations can only be altered by 
 joint concurrence between the municipal council and the grantee. 
 In case there shall be no concurrence, the minister of public works 
 shall determine it. 
 
 Section Third — Of the Employment of Public Waters for the Supply 
 
 of Railroads. 
 
 Art. 172. On obtaining competent authority, railroad com- 
 panies may avail themselves of the public waters which may be 
 necessary for their use. The governor of the province shall grant 
 the authorization, when the amount of water does not exceed 50 
 cubic metres (1,765^^% cubic feet) per day; should the quantity 
 exceed this, the minister of public works shall decide. If the 
 waters should have been previously devoted to other uses, expro- 
 priation must precede, according to that which is laid down in 
 article 161. 
 
 Art. 173. With the authorization which article 25 of this law 
 prescribes, the companies for the said purpose can open ordi- 
 nary wells, draw wells, or tunnels, also bore artesian wells on 
 either the public or community lands; and when they should be 
 on private property by first obtaining permission of its owner, and 
 in the other case that of the governor of the province. 
 
 Art. 174. When railroads shall cross irrigated lands, on which 
 the right to employ the water may be inherent to the ownership 
 of the land, the companies will have the right to take, at the points 
 most convenient for the service of the railroad, the quantity of 
 water corresponding to the land which they have occupied and 
 paid for, being obliged to pay in the same proportion the fee for 
 irrigation, or to contribute towards the ordinary and extraordinary 
 expenses of the canal, according to the circumstances. 
 
 Art. 175. In default of, or by insufficiency of the means au- 
 thorized in the previous articles, the railroad companies shall have 
 the right, for their exclusive service, to the necessary waters not 
 intended for domestic uses, which a^e private property, and in 
 such cases the law of enforced expropriation shall be applied. 
 
680 APPENDIX III— WA TER-LA W, SPAIN. 
 
 Section Fourth — Of the Employment of Public Waters for Irrigation. 
 
 Art. 176. The owners of properties contiguous to the public 
 roads can collect the rain-waters which run through them, and 
 employ these for the irrigation of their fields, in subjection to that 
 which the ordinances direct for the preservation and police of the 
 same roads. 
 
 Art. 177. The owners of i:)roperties bordering on the public 
 channels of intermittent flow, as shallow sandy washes, small 
 streams, deeply-cut channels, or others similar of the public do- 
 main, can employ in their irrigation the rain-waters which run 
 through them, and construct, for the purpose, without the neces- 
 sity of authorization, dikes of earth and loose stone, or dams either 
 movable or automatic. 
 
 Art. 178. When these dikes or dams can produce inundations, 
 or cause any other injury to the public, the alcalde, officially, or 
 at the request of others, the danger being proved, will order that 
 those who constructed them shall modify them as much as may 
 be necessary to remove all fear, or, should it be necessary, that 
 they destroy them. If they threaten to cause injury to private 
 persons, the latter may appeal at once to the local authority; and 
 if the injury is realized, they shall have their rights examined 
 into promptly before the courts of justice. 
 
 Art. 179. Those who during twenty years should have em- 
 ployed for the irrigation of their lands, the rain waters which flow 
 through a shallow wash, ravine, or other similar channel of the 
 public domain, can object to the owners of properties higher up 
 depriving them of this advantage. But if they should have em- 
 ployed only a part of the water, they cannot prevent others from 
 using the remainder, provided that the flow for the quantity 
 which they have for a long time employed, remains free. 
 
 Art. 180. The provision in the preceding articles, relating to 
 rain waters, is applicable to intermittent springs, which only flow 
 in times of abundant rains. 
 
 Art. 181. When it is designed to construct dams, or M'eirs of 
 permanent character, in order to employ for irrigation the rain 
 waters, or the intermittent springs which run through public chan- 
 nels, the authorization of the governor of the province will be 
 necessary, after due formality. 
 
 Art. 182. In order to construct reservoirs intended to collect 
 pd conserve rain or public waters, the authorization of the min- 
 ister of public works, or that of the governor of the province, is 
 necessary, according to the law of public works and the regula- 
 tions for its execution. 
 
 Art. 183. If these works should be declared to be of public 
 utility, they shall have the power to condemn, previously indemni- 
 
EMPLOYMENT OF PUBLIC WATERS. 58J 
 
 fying those who might have acquired rights to usefully employ in 
 their lower course the water which may have to be detained and 
 stored in the reservoir, when the quantity of it, or other circum- 
 stances, does not permit it to supply those utilizations in the same 
 degree in which they were formerly. 
 
 When it can be proven, said utilizations will be further respected 
 by indemnifying those who, under them, may have rights to dam- 
 ages which its interruption on account of the execution of the 
 works of the reservoir occasions them. 
 
 Akt. 184. On the navigable rivers, the riparian proprietors 
 can, on their respective margins, freely establish pumps, or any 
 other machine intended to draw the waters necessary for the irri- 
 gation of their bordering properties, provided that they do not 
 cause injuries to the navigation. In the other public rivers the 
 authorization of the governor of the province will be necessary. 
 
 If in any of the cases of the former paragraph, steam should 
 have to be used as a motive power in effecting the extraction of 
 the water, the authorization devolves on the governor, in virtue of 
 established rules, he making publication in the official bulletin, 
 and hearing those interested. 
 
 Art. 185. The authorization of the minister of public works 
 is necessary for the employment of public waters with the intention 
 of irrigation, whose derivation or taking has to be made by means 
 of dams, weirs, or other permanent works, constructed in the riv- 
 ers, ravines, small streams, or any other class of continuous nat- 
 iiral currents, provided that more than 100 litres of water (3.5317 
 cubic feet) per second may have to be taken. 
 
 Art. 186. If the quantity of water which has to be derived or 
 diverted from its natural channel does not exceed 100 litres per 
 second, the governor of the province will make the concession, 
 after the proper formalities, the petitioner having recourse by 
 appeal to the minister of public works. Also, the governors of the 
 provinces may authorize the reconstruction of old dams intended 
 for irrigations or other uses. When the works which may have to 
 be executed on the dams are for preservation, or simple repairs, 
 and do not change the conditions of the employment of the waters, 
 they can be carried to completion without previous authorization, 
 but giving information of them to the governor of the province. 
 
 Art. 187. The governors of provinces cannot make more than 
 one concession in the same works of taking, of which a dam forms 
 part. 
 
 Art. 188. The concessions of water made to the proprietors of 
 lands, individually or collectively, for the irrigation of these lands, 
 shall be in perpetuity. Those which should be made to societies 
 or companies, to irrigate lands of others, in consideration of the 
 payment of a fee, shall be for a term which shall not exceed 99 
 years, which having elapsed, the lands shall be exempt from the 
 payment of the fee, and the corAmon ownership of the dams, 
 
682 APPENDIX III— WA TER-LA W, SPAIN. 
 
 ditches, and other works exclusively necessary for the irrigation, 
 shall pass to the community of irrigators. 
 
 Art. 189. The applications for concessions of which the former 
 articles treat, shall be accompanied with: 
 
 Firat — The design for the works, composed of plans, full descrip- 
 tion, specifications, and estimate of cost. 
 
 Second — If the application should be by an individual, the peti- 
 tioner as well as the owner — proof of possession of the lands which 
 he intends to irrigate. 
 
 Third — If it should be by several individuals — the agreement of 
 the majority of the proprietors of the irrigable lands, computed by 
 the superficial area which each one represents. 
 
 Fourth — If it should be for a society or company — ^the schedule 
 of rates, either in products or in money, which the lands will have 
 to pay that may have to be irrigated. 
 
 Art. 190. When employments of water exist by virtue of rec- 
 ognized and valid rights, a new concession can be made only in 
 case, after gauging the waters in ordinary years, the quantity 
 which is solicited is shown to be a surplus, after completely sup- 
 plying the existing utilizations. The gauging having been made, 
 the proper time for the irrigations shall be taken into account, in 
 order to determine the quantity of water necessary, according to 
 the lands, cultivations, and irrigable area. In years of drought, 
 the new grantees cannot take the water as long as all the necessi- 
 ties of the ancient users are not supplied. 
 
 Art. 191. The gauging of summer waters will not be necessary 
 before making concessions of winter, spring, and torrent waters, 
 which could not constantly or casually be used on the lower lands, 
 provided that the point of diversion is established at the proper 
 height or level, and necessary precautions are adopted in order to 
 prevent injuries or abuses. 
 
 Art. 192. When, the public waters of a river running wholly 
 or in part underneath the surface of its bottom, imperceptible to 
 the sight, submerged dams are constructed, or other means are 
 employed to elevate their level, so as to make them applicable to 
 irrigation or other uses, this result shall be considered, under the 
 present law, as a discovery of the water rendered capable of being 
 used. The irrigators and industrial users situated lower down, 
 who by prescription or by concession from the minister of public 
 works should have acquired legitimate title to the use and em- 
 ployment of waters which have thus been made artificially to reap- 
 pear on the surface, shall have the right to object to and oppose a 
 new discovery higher up, so far as it might cause them injury. 
 
 Art. 193. The mills and other industrial establishments, 
 which are injured by the diversion of the waters of a river or 
 rivulet, sanctioned according to that which is arranged in the 
 present law, shall receive in every case, from the grantee of the 
 new work, the corresponding indemnification. This shall consist 
 
EMPLOYMENT OF PUBLIC WATERS. 583 
 
 of the amount of the injury, as per agreement between the parties; 
 but if there should be no agreement, it shall be determined ac- 
 cording to expropriation on account of public utility, after due 
 formalities. 
 
 Art. IW. The authorized constructors of canals of irrigation 
 shall enjoy: 
 
 Fmi — ^The power to open quarries, to collect loose stone, to con- 
 struct kilns for lime, gypsum, and brick, and to deposit articles 
 or to establish workshops for the preparation of materials on the 
 lands contiguous to the works. If these lands shall be pubUc or 
 for common occupation, the companies shall make use of this 
 power according to their necessities; but if they should be private 
 property, they shall arrange previously with the owner or his 
 representative, through the medium of the alcalde, and they shall 
 fix equitably the indemnification for the damages and injuries 
 which might happen. 
 
 Seanid — Exemption from fees which are required by the trans- 
 ference of property, occurring b\' wtue of the law of expropria- 
 tion. 
 
 Hiird — ^Exemption from all taxes on the capital which is in- 
 vested in their works. 
 
 Fourth — ^In the towns within whose limits the construction 
 should have been made, the dependents and operatives of the 
 company, shall have a right to the wood, pastures for the cattle 
 employed on the work, and other advantages which the townspeo- 
 ple enjoy. 
 
 The concessions, witli subsidies troxa the state, from a pro\'ince. 
 or from a municipality, shall always be offered at public auction, 
 according to that which the general law of public works arranges. 
 
 Art. 195. Durmg the first ten j-ears, the same taxable valua- 
 tion shall be estimated for the lands brought under irrigation, 
 which had been'tixed in the last assessment in which they were 
 considered as unirrigated, and according to this the taxes and 
 duties shall be paid. 
 
 Art. 196. It shall be the duty of the companies to maintain 
 their works in good condition during the term of the concession. 
 If these should become useless for irrigation, the lands shall cease 
 topaj-the established water-rate as long as the stipulated amount 
 of water is not supphed, and the minister of public works shall fix 
 a time for the reconstruction or repair. This time ha^-ing elapsed. 
 without the grantee having complied, and no superior force pre- 
 venting (in which case it may be extended) , the concession shall 
 be declared forfeited. The conditions of the forfeiture shall be 
 those designated in the general law of public works for similar 
 cases, according to the provisions of the regulation of the present 
 law. 
 
 Art. 197. As well in concessions granted to proprietors col- 
 lectively, as in those made to companies or societies, all the lands 
 
584 APPENDIX III— WA TER-LA W, SPAIN. 
 
 included in the general approved plan as those which can receive 
 irrigation, are held subject, even when their owners refuse it, to the 
 payment of the fee or rate which may be established, as soon as 
 the concession may be accepted by the majority of the proprie- 
 tors interested, computed in the manner which is determined in 
 number 3 of article 189. The companies in this case, shall have 
 the right to acquire the lands whose owners refuse the payment 
 of the fee, for their value when dry, subject to the prescriptions of 
 the law and the regulations for enforced expropriation. If the 
 company does not take the lands, then the proprietor who does not 
 irrigate them shall be exempt from the payment of the fee. 
 
 Aet. 198. Besides the rate which the irrigators have to pay 
 to the societies or companies who undertake the construction of 
 canals and reservoirs for irrigation, for the payment of the inter- 
 est and principal of the capital invested in the works, there can 
 be granted, by way of subsidy, during a period of five or ten years, 
 the value of the increase of the tax, which has to be imposed on 
 the owners of the lands, after the first ten years in which they 
 may be irrigated. The same subsidy can be granted to the asso- 
 ciations of proprietors, who shall collectively carry to completion 
 the construction of canals and reservoirs for the irrigation of their 
 own lands. The concessions which may have this subsidy, can 
 only be issued by means of a law, the others being conceded by 
 virtue of a royal decree, subject to what is arranged in article 147 
 of this law, and in accordance with that which the general law of 
 public works provides. 
 
 Art. 199. The lands which may have to be irrigated in con- 
 formity with the prescriptions of the present law, are declared in- 
 cluded in the exemption from the tax, upon the first change of 
 ownership. 
 
 Akt. 200. Works necessary for the employment of public 
 waters in irrigation, may be declared of public utility, for the ope- 
 ration of the law of enforced expropriation, provided that the vol- 
 ume of the water exceeds 200 litres per second. 
 
 Art. 201. If provincial diputacions, syndicates, municipalities, 
 national or foreign companies, or private persons, go to the minis- 
 ter of public works, petitioning that a scheme for a canal or reser- 
 voir for irrigation shall be examined by the state, he shall order 
 it at their instance, when it will not hinder the public service, and 
 provided that the petitioners shall agree to pay all the expenses 
 of said examinations in conformity with that which is determined 
 in the regulation of this law. 
 
 Art. 202. The owners, societies, corporations, or syndicates of 
 canals or ditches already existing by virtue of authorization, con- 
 cession, decree, or other special title, who should not have finished 
 their works at the publication of the present law, have the right to 
 receive the benefits of the same. For executing them a law will 
 be necessary, whose scheme the minister of public works shall 
 
EMPLOYMENT OF PUBLIC WATERS. 585 
 
 present to the cortes, and after having examined the measure, if 
 the benefits designed are to result in public utility it shall be 
 passed. 
 
 Art. 203. For the useful employment of the public waters left 
 over from irrigations, and proceeding from filtrations or leakages, 
 as well as those from drainage, where no special rule should have 
 been established, that which is arranged in articles 5 to 11 and 
 those following, on the useful employment of surplus waters of 
 private property, shall be observed. 
 
 Art. 204. For the general interest in the better employment of 
 waters, the minister of public works shall direct what shall be 
 done for the examination of the existing rivers, with the view 
 of providing that no irrigator shall waste the water of his allot- 
 ment, which might be of use to others in need of it, and with that 
 of preventing the waters of freshets from flowing unproductively 
 and even injuriously away to the sea, when other districts are 
 longing and begging for irrigation and regular applications of the 
 water, without injuring acquired rights. 
 
 Section Fifth — Of the Employment of Public Waters for Canals of 
 
 Navigation. 
 
 Art. 205. The authorization to a society or private company 
 to canalize a river with the object of making it navigable, or to 
 construct a canal of navigation, will be granted always by a law, in 
 which it shall be determined whether the work is to be subsidized 
 with funds of the state, and which will establish the other condi- 
 tions of the concession. 
 
 Art. 206. The duration of these concessions shall not exceed 
 99 years, after which the state shall enter into a free and com- 
 plete enjoyment of the works, and of the materials for operation, 
 according to the conditions established in the concessions; ex- 
 cepting, as a general rule, the waterfalls utilized and the build- 
 ings constructed for industrial establishments, which shall remain 
 the property of and at the free disposal of the grantees. 
 
 Art. 207. The first ten years of the working of a canal having 
 passed, and successively every ten years, a revision of the tarifl's 
 shall be made. 
 
 Art. 208. The companies can at any time reduce the rates of 
 the tarifis, giving information of it to the government. In this 
 case, as in those of the former article, the alterations which will 
 have to be made shall be announced to the public at least three 
 months beforehand. 
 
 Art. 209. The grantees shall be obliged to preserve the works 
 in good condition, as also the service of operation, if it should be 
 in their charge. When, by reason of non-fulfillment of this duty, 
 navigation may be rendered impossible, the government shall fix 
 a time for the repair of the works or renewal of the. materials; and 
 
586 APPENDIX III— WA TER--LA W, SPAIN. 
 
 this time having passed without the object having been attained, 
 the government will declare the concession forfeited and announce 
 a new sale of it, which shall take place under the terms prescribed 
 for the canals of irrigations in article 196. 
 
 Section Sixth— Of the Occupation of the Public Waters for Ferries, 
 Bridges, and Industrial Establishments. 
 
 Art. 210. On rivers neither navigable nor floatable, owners of 
 both margins can establish ferryboats, having first obtained the 
 authorization of the alcalde or bridges of wood, having obtained 
 the authorization of the governor of the province, who shall fix 
 their location, the tariffs, and other necessary conditions, in order 
 that their construction and service may ofier the required security 
 to passengers. 
 
 Art. 211. Whoever wishes to establish on rivers floatable only, 
 ferryboats or bridges to place in public communication country 
 roads, or ferryboats on neighborhood roads which are without 
 bridges, shall sohcit the authorization from the governor of the 
 province, designating the points at which he intends to locate 
 them, their dimensions and system, and accompanied by the rates 
 of passage and service. The governor shall grant the authoriza- 
 tion in the terms prescribed in the former article, taking care, 
 however, that it does not hinder the service of flotation. The 
 concession for bridges which connect the ends of neighborhood 
 roads, on rivers floatable only, shall be made, in subjection to the 
 law for high-roads, of the fourth of May, 1877. 
 
 Art. 212. In respect to the navigable rivers, the minister of 
 public works alone is empowered to grant authorization for ferry- 
 boats or floating bridges for the public use. On granting the con- 
 cession, the tariffs for passage, and other conditions required for 
 the service of navigation and flotation, as well as for the security 
 of passengers, shall be fixed. 
 
 Art. 213. The concessions to which the former articles refer, 
 give the right to indemnification for the value of the works, only 
 when the government is obliged to take them for the benefit of 
 the general interest. / 
 
 Art. 214. Said concessions do not prevent the minister of pub- 
 He works from ordering the establishment of ferryboats and float- 
 ing or permanent bridges, provided that he considers them advan- 
 tageous for the public service. 
 
 When this new means of crossing stops or materially interferes 
 with the use of a boat or bridge of private ownership, the owner 
 shall be indemnified for the value of the work, if his property is 
 not founded on titles of civil law, in which case the law of enforced 
 expropriation on account of public utility shall apply to it. 
 
 Art. 215. On the rivers neither navigable nor floatable, the 
 owner of both margins may freely establish any sort of machine. 
 
EMPLOYMENT OF PUBLIC WATERS. 587 
 
 engine, or industrial establishment, which will not cause the di- 
 version of the waters from their natural course. Being the owner 
 of only one margin, he must not build past the middle of the 
 channel. In either case he must erect his establishment without 
 stopping the free flow of the waters, nor cause any injury to the 
 bordering properties, irrigations, or industrial estabhshments, in- 
 cluding that of fishing. 
 
 Art. 216. The authorization to establish on the navigable or 
 floatable rivers, any apparatus or floating machinery, whether or 
 not they have to transmit the movement to others fixed on the 
 land, may be granted by the governor of the province, after hav- 
 ing investigated the case, and hearing the owners of both margins, 
 and those of the industrial establishments immediately below, 
 and, moreover, the following facts being proven: 
 
 Fint — The applicant to be the owner of the margin where the 
 boats are to be moored, or to have obtained permission from who- 
 ever may be the owner. 
 
 Second — That no obstacle be offered to navigation or flotation. 
 
 Art. 217. In the concessions of which the former article 
 speaks, it shall always be understood: 
 
 First — That if alteration of the currents occasioned by the float- 
 ing establishments cause damage to the riparian owners, the re- 
 pairs shall be at the cost of the grantee. 
 
 Second — If from any cause relative to the river, or to the navi- 
 gation or flotation, the removal of the floating establishment 
 becomes necessary, the concession can be annulled, without the 
 grantee having a right to any indemnification. But in the pro- 
 ceeding which, in this case, is carried on, the consulting council for 
 roads, canals, and ports must be consulted, for the account to 
 which this paragraph refers. 
 
 Third — If for any other cause of public utility it should be 
 necessary to destroy any construction of this class, its owners shall 
 be indemnified, according to the law of expropriation, provided 
 that it may have been legitimately established, and should have 
 been in constant use. It shall be understood that such works 
 are not in constant use when two consecutive years should have 
 passed without employing them. 
 
 Art. 218. As well in navigable or floatable rivers, as in those 
 which may not be, the power belongs to the governor of the prov- 
 ince to concede authorizations for the establishment of mills or 
 other industrial manufactories in buildings situated near the 
 banks, to which the necessary water is conducted by channels, 
 and which afterwards is reunited to the current of the river. In 
 no case shall this authorization be granted to the injury of the 
 navigation or flotation of the rivers and existing industrial estab- 
 lishments. In order to obtain the authorization to which this 
 article refers, it is indispensably requisite for whosoever solicits it 
 to be the owner of the land where he intends to construct the build- 
 
588 APPENDIX HI— WA TER-LA W, SPAIN. 
 
 ing for the manufactory, or to te authorized by whoever may be 
 the owner of it. 
 
 Aet. 219. When an industrial establishment communicates to 
 the waters substances and properties injurious to health or to veg- 
 etation, the governor of the province shall direct that a professional 
 examination be made, and if the injury be clearly proved, he shall 
 order that the industrial works be suspended until their owners 
 adopt a fitting remedy. The fees and charges for the examina- 
 tion shall be paid by him who made the complaint, if it proves 
 groundless; and, otherwise, by the owner of the establishment. 
 When the owner or owners, at the expiration of six months, should 
 not have adopted the projjer remedy, it shall be understood that 
 they refuse to continue in the carrying on of their industry. 
 
 Art. 220. The concessions for employments of public waters 
 for industrial establishments, shall be agreed to in perpetuity and 
 on condition that if at any time the waters acquire properties 
 injurious to health or vegetation, on account of the industry for 
 which they were granted, the forfeiture of the concession shall be 
 declared, without the right to any indemnification. 
 
 Art. 221. Those who employ the water as a motive power for 
 machinery or industrial establishments, situated within the rivers 
 or on their banks or margins, shall be exempt from the payment 
 of taxes during the first ten years. 
 
 Section Seventh — Of the Occupation of Public Waters for Fish-Ponds 
 and Hatcheries. 
 
 Art. 222. The governors of the provinces can grant rights to 
 occupy public waters, in order to form lakes, ponds, or tanks 
 intended for fish-ponds or for breeding fish, provided that they do 
 not cause injury to health or to other employments, with rights 
 previously acquired lower down. 
 
 Art. 223. For the industries spoken of in the former article, 
 the petitioner shall present the complete project of the works, and 
 the title which proves him to be the owner of the land where they 
 are to be constructed, or that he has obtained the consent of him 
 who is the owner. The governor of the province shall conduct 
 the proper formalities for the purpose. 
 
 Art. 224. The grantees of public waters for irrigation, naviga- 
 tion, or industrial establishments, after due formalities, can make 
 in their canals, or on contiguous lands which they might have 
 acquired, ponds or tanks for breeding fish. 
 
 Art. 225. The authorizations for breeding places for fish are 
 granted in perpetuity. 
 
ADMINISTRAIION OF PUBLIC WATERS. 589 
 
 TITLE V. 
 
 Chapter XII— 0/ the Police of Waters. 
 
 Art. 226. The police of the pubUc waters and their natural 
 channels, banks, and zones of servitude, shall be in charge of the 
 administration, and the minister of public works shall direct it, 
 dictating the necessary regulations for good management in the 
 use and employment of the waters. 
 
 Art. 227. In relation to the waters of private ownership, the 
 administration shall exercise over them the necessary vigilance, in 
 order that they shall not injuriously affect the public health nor 
 the security of persons or properties. 
 
 Chapter XIII — Of Associations of Irrigators, and of Syndicates^ 
 and Juries of Irrigations. 
 
 Section First — Of the Associating together of Irrigators, and of their 
 
 Syndicates. 
 
 Art. 228. In the joint employments of public waters for irri- 
 gation, a community of irrigators shall necessarily be formed, 
 subject to the ruling of their ordinances: 
 
 First — When the number of thern amounts to 20, and the num- 
 ber of irrigable hectares is not less than 200 (494 acres). 
 
 Second — When in the opinion of the governor of the province 
 the local interests of agriculture require it. 
 
 Outside of these cases, the formation of the community requires 
 the choice of the majority of those irrigating. 
 
 Art. 229. Notwithstanding that which is arranged in the for- 
 mer article, the irrigators whose properties take the water before 
 or after those of the community, cannot be compelled to form part 
 of the community, and can separate from it, and in their turn can 
 establish a new one, and form for themselves alone a district or 
 guild without necessity of continuance. 
 
 Art. 230. Every community shall have a syndicate elected by 
 it, and charged with the execution of the ordinances and resolu- 
 tions of the said community. 
 
 Art. 231. Irrigating communities shall frame their ordinances 
 for irrigation according to the basis established in the law, submit- 
 ting them for the approbation of the government, which cannot 
 refuse them, nor introduce variations, without hearing the council 
 of state concerning it. 
 
 The public waters devoted to joint utilizations, which have 
 hitherto had a special system embodied in their ordinances, shall 
 continue subject to the same as long as a majority of those inter- 
 ested do not wish to modify it, subject to that which is prescribed 
 
590 APPENDIX III— WA TER-LA W, SPAIN. 
 
 in the present law, without prejudice to the accomplishment of 
 that which is arranged in article 190. 
 
 Aet. 232. The number of individuals of the syndicate, and 
 their election by the community of irrigators, shall be determined 
 in their ordinances, the extent of the irrigations being considered, 
 and according to the ditches which require special care, and the 
 towns interested in each community. 
 
 In said ordinances the qualifications of the electors and those 
 eligible for election shall be fixed; and the time and form of the 
 election shall be established, as well as the duration of the service, 
 which shall always be gratuitous, and which they cannot refuse 
 except in case of reelection. 
 
 Abt. 233. All the expenses incurred by a community, for the 
 construction of dams and ditches, or for their repair, maintenance, 
 or cleaning, shall be defrayed by the irrigators in equitable pro- 
 portion. The new irrigators who should not have contributed to 
 the cost of the dams or ditches constructed by a community, shall 
 pay, for the benefit of this, an additional tax arranged on equita- 
 ble terms. 
 
 When one or more irrigators of a community shall have obtained 
 the competent permission to make, on their own account, works 
 on the dam or ditches, in order to increase the amount of the 
 waters, the other irrigators having refused to contribute, the latter 
 shall have no right to a greater quantity of water than that which 
 they formerly enjoyed. The increase obtained shall be at the free 
 disposal of those who have paid for the works, and in consequence 
 they shall regulate the turns for irrigation, by which their respect- 
 ive rights may be protected. If any person should attempt to 
 conduct waters to any other locality, employing the dams or 
 ditches of a community of irrigators, he shall arrange and adjust 
 with it, in the same manner as he would with a private person. 
 
 Art; 234. In the irrigated districts existing at present, and 
 governed by rules already written and generally practiced by a 
 community of irrigators, no one shall be injured nor reduced in 
 the enjoyment of his portion and use of the water, by the intro- 
 duction of any novelty in the quantity, application, or distribu- 
 tion of the waters in the district irrigable. But, neither shall any 
 one have a right to the increase, if the supply is increased by the 
 eflbrts of the said irrigators or any of them, unless that he should 
 have contributed proportionally to pay the expenses. 
 
 Art. 235. In order to usefully employ in the movement of fixed 
 machinery, the motive power of the waters which run through a 
 canal or ditch owned by a community of irrigators, their permis- 
 sion will be necessary. For this purpose they shall assemble in 
 general council, and the majority of those present shall decide it, 
 computing the votes by the property which each one represents. 
 On its refusal, appeal can be made to the governor of the province 
 who, having heard the irrigators, chief engineer of roads, canals, 
 
ADMINISTRATION OF PUBLIC WATERS. 591 
 
 and ports of the province, the provincial board of agriculture, indus- 
 try, and commerce, and the permanent committee of the provin- 
 cial diputacion, can concede the privilege, provided that it does 
 not cause injury to the irrigation nor to other industries, unless 
 that the community of irrigators wish to employ for themselves the 
 same motive power, in which case they shall have the preference, 
 being required to make a beginning of the works within the term 
 •of one year. 
 
 Art. 236. In the syndicates there sliall be necessarily one rep- 
 resentative of the lands, which on account of their situation, or by 
 the order established, maybe the last to receive irrigation; and 
 when the communities are composed of several centers of popula- 
 tion, either agricultural or manufacturing, directly concerned in 
 the good management of their waters, each shall have in the syndi- 
 cate its corresponding representation, proportionate to the right 
 which the use and employment of the same waters confers on them. 
 In the same manner, when the water-right may have been conceded 
 to a private company, the grantee shall be naturally a member of 
 the syndicate. 
 
 Art. 237. The community shall frame the regulation for the 
 S}mdicate. The functions of the syndicate shall be: 
 
 First — To watch the interests of the community, to promote its 
 development, and to defend its rights. 
 
 Second — To dictate suitable provisions for the better distribution 
 of the waters, respecting the acquired rights and the local cus- 
 toms. 
 
 Third — To appoint and discharge their employes in the manner 
 which the regulations establish. 
 
 Fourth — To make the estimates and assessments and to exam- 
 ine the accounts, submitting each of them for the approbation of 
 the general assembly of the community. 
 
 Fifth — To propose to th^ assemblies the ordinances and regu- 
 lations, or any alterations which they should consider useful to 
 introduce in those already existing. 
 
 Sixth — To establish strict turns of water, conciliating the inter- 
 ests of the different cultivations among the irrigators, and taking 
 ■care that in the years of scarcity it shall be distributed in the 
 manner most advantageous to the lands interested. 
 
 Seventh — All of those which the ordinances of the community 
 or the special regulations of the said syndicate allow to them. 
 
 The resolutions which the syndicates adopt for irrigation by 
 virtue of their ordinances, when they act as commissioners of the 
 administration, shall be discussed before the municipal councils 
 or the governors of the provinces, according to the cases. 
 
 Art. "238. Each syndicate shall elect from among its voters a 
 president and vice-president, with powers which the ordinances 
 and regulations establish. 
 
592 APPENDIX III— WA TER-LA W, SPAIN. 
 
 Art. 239. The communities of irrigators shall hold regular 
 general assemblies, at the times designated by the ordinances of 
 irrigation, and extraordinary assemblies in the cases which the 
 same ordinances determine. These ordinances shall fix the con- 
 ditions required for taking part in the deliberations, and the man- 
 ner of counting the votes, in proportion to the property which 
 those interested represent. 
 
 Art. 240. The general assembUes at which all the irrigators 
 of the community, and the manufacturers interested, have the 
 right of participating, shall decide on the disputed subjects of 
 common interest, which the syndicates and any of those present 
 may submit for their decision. 
 
 Art. 241. When, on the course of a river, several communi- 
 ties and syndicates exist, they can form, for their mutual conve- 
 nience, one or more central or common syndicates, for the defense 
 of the rights, and the maintenance and protection of the interests 
 of all. It shall he composed of representatives of the communi- 
 ties interested. It can also be formed by order of the minister of 
 public works and by the authority of the governor of the province, 
 provided that the interests of agriculture require it. The number 
 of the representatives which may be nominated shall be propor- 
 tioned to the extent of the irrigable land embraced within the 
 respective boundaries. 
 
 Section Second — Of Juries of Irrigation. 
 
 Art. 242. Beside the syndicate, there shall be in every com- 
 munity of irrigators one or more juries, according as the extent of 
 the irrigations require it. 
 
 Art. 243. Each jury shall be composed of a president, who, 
 being appointed by it, shall be a merhber of the syndicate; and 
 of a number of jurors, either proprietors or their representatives, 
 which the regulation of the syndicate may fix, all named by the 
 community. 
 
 Art. 244. It is the duty of the jury: 
 
 First — To become acquainted with the questions of fact, which 
 are raised during irrigation, and decide between those interested 
 in it. 
 
 Second — To impose, for the violations of the ordinances of irri- 
 gation, the penalties for which there may be occasion, according to 
 the said ordinances. 
 
 Art. 245. The proceedings of the tribunal shall be public and 
 oral, in the manner which the regulation determines. Its deci- 
 sions, which shall be executory, shall be recorded in a book, with 
 the declaration of the facts and the authority of the ordinances 
 on which they are founded. 
 
 Art. 246. The penalties which the ordinances of irrigation 
 establish for infringements or abuses in the employment of their 
 
ADMINISTRATION OF PUBLIC WATERS. 593 
 
 waters, obstruction of the canals or of their sluices, and other 
 irregularities, shall be pecuniary, and shall be awarded to the 
 persons injured and to the funds of the community, in the man- 
 ner and proportion which the same ordinances establish. If the 
 case is criminal, it can be denounced by the irrigator or industrial 
 user injured, or by the syndicate. 
 
 Art. 247. Where ancient tribunals of irrigation exist, they 
 shall continue with their present organization as long as the re- 
 spective communities do not determine to propose their reforma- 
 tion to the minister of public works. 
 
 Chapter XI\^ — 0/ the Attributes of the Administration. 
 
 Art. 248. It is the duty of the minister of public works, as 
 being charged with the execution and application of the present 
 law: 
 
 First — To dictate the regulations and instructions necessary for 
 the purpose. 
 
 Second — To grant by himself, or by means of the authorities 
 who are subordinated to him, the water employment privileges 
 which are the subject of the present law, provided that on account 
 of the power expressed in it, its concession does not belong to other 
 authorities, or to the legislative power. 
 
 Third — To determine finally all the questions raised by the 
 application of the present law, when the decisions of his deputies 
 do not cause settlement, and excepting the appeals which have 
 been occasioned under the- same. 
 
 Fourth — To determine and execute the limits, surveying, and 
 marking out how much belongs to the public domain, in virtue 
 of the regulations of this law, without prejudice to the compe- 
 tency of the tribunals, relating to the questions of property and 
 possession. 
 
 Art. 249. Projects, the approbation of which are authorized 
 by the governors, and concessions which they have the power to 
 grant, shall be decided in the term of six months. If it cannot 
 be done in this manner the petitioners can have recourse to the 
 minister of public works, who shall dictate the determination which 
 may have to be issued before the expiration of four months from 
 presenting the remonstrance. 
 
 Art. 250. For the granting of the water employment privileges, 
 which are the subject of this law, besides that which the regulation 
 prescribes in each case, it is indispensably necessary to have a 
 hearing of the person, if he shall be known, whose rights the con- 
 cession may affect, or to give publicity to the scheme and the 
 resolutions which the administration dictates concerning it, when 
 he shall be unknown, or when the concession affects the collective 
 interests which do not constitute legal personality or need legal 
 representation. 
 38' 
 
594 APPENDIX III- WATER-LAW, SPAIN. 
 
 Art. 251. The decisions dictated by the municipal adminis-" 
 tration on the subject of waters, if there is no objection to them 
 before the governor within the period of fifteen days, will be final. 
 
 Those which the governors dictate will produce the same effect, 
 ,if there is no recourse against them by administrative procedure, 
 before the ministry of public works, or by way of administrative 
 court procedure when it is carried before the provincial commis- 
 sioners as administration courts. In either case the appeal must 
 be interposed within the term of one month, counting from the 
 date of the administrative notification, which shall be in proper 
 form. 
 
 The resolutions of the central administration shall be opposed by 
 way of the administrative courts, in the cases which the present 
 law determines, provided that the appeal is interposed in the term 
 of three months, counting from the administrative notification, or 
 the publication in the Gazette if the residence of those interested 
 should be unknown, to whom, otherwise, the result shall be made 
 known by the proper central director, or by the governor of the 
 province. 
 
 Abt. 252. Against the measures dictated by the administra- 
 tion within the scope of its power in the matter of waters, interdicts 
 by the tribunals of justice shall not be admitted. These can only 
 be recognized at the request of the party, when in the cases of 
 enforced expropriation, prescribed by this law, the corresponding 
 indemnification should not have preceded the removal of the 
 owner. 
 
 Chapter XV — Of the Jurisdiction of the Courts in the Matter of 
 
 Waters. 
 
 Art. 253. It comes within the administrative-court jurisdic- 
 tion, to take cognizance of the appeals against the decisions dic- 
 tated by the administration in the matter of waters in the following 
 oases: 
 
 First — When the forfeiture is declared of a concession made to 
 private persons or companies in the terms prescribed in the gen- 
 eral law of public works. 
 
 Second — When, on account of it, acquired rights are injured by 
 orders emanating from the said administration. 
 
 Third — When an enforced servitude, or some restriction or bur- 
 den, is imposed on private property, in the cases prescribed by this 
 law. 
 
 Fourth — In the questions on compensations which are raised for 
 damages and injuries, in consequence of the restrictions and bur- 
 dens of which the former paragraph treats. 
 
 Art. 254. It is the duty of the courts which exercise civil 
 jurisdiction, to investigate questions, relative: 
 
 First — To the dominion of the public waters and to the owner- 
 ship of the private waters, and of their possession. 
 
JURISDICTION OF COURTS. 595 
 
 Second — To the dominion of the shores, heds, or channels of 
 the rivers, and to the ownership and possession of the river hanks, 
 without prejudice to the competency of the administration, to mark 
 off, survey, and lay down boundaries of that which appertains to 
 the public domain. 
 
 Third — To the servitudes of waters and of passage through the 
 margins, founded on titles of civil right. 
 
 Fourth — To the right of fishing. 
 
 Abt. 255. It also is the duty of the tribunals of justice, to in- 
 vestigate questions raised between private parties on account of 
 priority of right to the useful employment of water according to 
 the present law: 
 
 First — Of the rain waters. 
 
 Second — Of the other waters out of their natural channels, when 
 the priority is founded on titles of civil rights. 
 
 Art. 256. It equally is the duty of the tribunals of justice, to 
 investigate the questions relative to damages and injuries occa- 
 sioned to third parties, in their rights of private property whose 
 alienation may not be compulsory: 
 
 First — By the opening of ordinary wells. 
 
 Second — By the opening of artesian wells, and by the execution 
 of subterranean works. 
 
 Third — By every class of useful employment of waters on ac- 
 count of private persons. 
 
 General Provisions. 
 
 Art. 257. All of that which is arranged in this law is without 
 prejudice to rights legitimately acquired previous to its publica- 
 tion, as well as to those of private ownership, which the propri- 
 etors of waters, of canals, and of fountains or springs have, by 
 virtue of which they employ, sell, or exchange them as private 
 property. 
 
 Art. 258. All the laws, decrees, orders, and other regulations, 
 in relation to the matter comprehended in the present law, which 
 have been dictated prior to its promulgation, and which might be 
 in contradiction to it, are repealed. 
 
Sye LOCAL LRRLGATLON GOVERNMENT. 
 
 APPENDIX III— A. 
 
 Model Ordinance for a Oommunity or Association of Irrigators. 
 
 ISSUED AS AN ADMINISTRATIVE REGULATION* 
 
 GENERAL GOVERNMENT OF SPAIN. 
 June 25,1884. 
 
 Chapter I. — Composition of the Community. 
 
 Article 1. The proprietors, irrigators, and other users who have the right 
 to the employment of the waters o£ [here name the canal, ditch, spring, or other 
 direct source of supply], are hereby constituted a community of irrigators, and 
 named [here insert name adopted], in virtue of the provisions of article 228 of 
 the law of waters of June 13, 1879. 
 
 Akt. 2. [Describes fully the lands and buildings, and in general terms the 
 canals and other worlds which are the property of the community or become so 
 by virtue of the organization.] 
 
 Aet. 3. [Describes fully and in detail the water rights which are the prop- 
 erty of the community or which become so under the organization; stating 
 points of diversion, volumes and sources of water, history and source of title, 
 etc.] 
 
 Art. 4. [Describes fully and in detail the lands which are embraced in the 
 community, and which are entitled to waters for irrigation under the regula- 
 tions of the community, and also describes the mUls or other industrial estab- 
 lishments which are embraced in the organization, and names the flow of 
 water to which they are each entitled, and the agreed rotation in delivery, if 
 any.] 
 
 Akt. 5. The principal object in forming the association being to avoid quar- 
 relings and litigations between the different users of water from the same nat- 
 ural sources and artificial works, all those embraced in the organization have 
 voluntarily submitted themselves to all that is fixed in these ordinances and 
 regulations, and are obligated to its faithful fulfillment, expressly renouncing 
 any other jurisdiction or law ; always provided, that their rights and the estab- 
 lished uses and customs of the locality are respected according to the second 
 paragraph of article 237 of the law of waters. 
 
 Aet. 6. No irrigator who is a member of the commvinity can withdraw from 
 it without absolutely renouncing his right to utilize the waters, provided his 
 case be not of tliat class spoken of as an exception to this rule in article 229 of 
 the law. Should it be of that class, at his instance there shall be an examina- 
 
 * This is a libeml triuislatioii and abiidgmeut of the Ordinance and explanations as given by 
 Bentab6l y Ureta, p. 165, et scg. 
 
IRRIGA TION COMMUNITY ORDINANCE. 697 
 
 tion made under the direction of the governor of the province, who, after con- 
 sulting his technical and administrative advisers, shall decide the question of 
 withdrawal, there being, however, an appeal to the minister of puhlic works, 
 reserved in accordance with the law. 
 
 Ko irrigator or farmer can become a member of the community after its for- 
 mation, except by consent of a majority vote of its members in general assem- 
 bly ; provided, however, that an appeal to the governor may be taken, and so on, 
 as tlie law directs. 
 
 Art. 7. The community is hereby obligated to pay every expense of con- 
 struction, repair, and preservation of all its works, structures, and properties, 
 and for the administration, and service to irrigators and manufactories, and 
 for business management and defense of the common rights, subject to the 
 provisions of these ordinances and regulations. 
 
 Art. 8. The rights and obligations of the individual irrigators and other 
 users who consume water, shaU be computed in proportion to its employment 
 or the quantity to which they have claim, or the quantity of water which they 
 consume, or to the extent of the land which they irrigate or have right to irri- 
 gate, as well as to the amounts which they contribute to the outlay of the com- 
 munity. 
 
 Art. 9. The rights and obligations of the individual mills and manufacto- 
 ries which utilize the motive power of the water shall be determined at once 
 for all time, as it is agreed to between the irrigators and the owners of these 
 establishments, without prejudice to the modifications which may afterwards 
 be determined by mutual consent. 
 
 Art. 10. The member of the community who does not make payment of the 
 sums charged to him, according to the terms of these ordinances and the regu- 
 lations thereunder, shall pay an additional charge of ten per cent per month 
 on his delinquent payments. "When payments and additional charges are 
 delinquent for three consecutive months, the use of water shall be prohibited, 
 and the rights which are due the community shall be enforced against the 
 delinquent, taking into account, at the same time, the expenses and injurie.'i 
 which may have been caused by him. 
 
 Art. 11. The community, as represented and united in general assembly, 
 assumes all the power which is inherent in the same. For the details of gov- 
 ernment and management a syndicate and court of irrigation are established 
 as by the law directed. 
 
 Art. 12. The community shall have a president and secretary, elected in 
 general assembly in like manner to the members of the syndicate and court or 
 jury of irrigation. 
 
 Art. 13. [Defines the qualifications — standing, interest in community, per- 
 sonal attributes, etc. — necessary for eligibility as president.] 
 
 Art. . 14. QPixes the term of the president.] 
 
 Art. 15. [Declares that the duty of the president shall be gratuitous and 
 that he cannot refuse the ofiice except in case of immediate reelection, etc.] 
 
 Art. 16. [Defines the duty of the president— making him, in general terms, 
 in addition to duties as presiding officer, the official representative of the com- 
 munity in outside matters, and particularly with the governmental authorities, 
 and also charging him with a general supervision of the .syndicate and of the 
 irrigation court or jury.] 
 
 Art. 17. [Defines tlie qualifications, etc., necessary to be eligible as secretary.] 
 
 Art. 18. The length of the term of office of the secretary shall not be fixed, 
 but shaU be at the will of the general assembly and upon the suggestion of the 
 president. 
 
598 APPENDIX III— A. SPAIN. 
 
 Art. 19. [Concerns the salary of the secretary.] 
 
 Art. 20. [Defines the dutie.s of the secretary; making him generally the 
 recorder and bookkeeper of the association.] 
 
 Chapter II.— 0/ the Works. 
 
 Art. 21. There shall immediately he prepared, and thereafter kept posted, a 
 schedule or inventory, in which shall be named and described, as particularly 
 as possible, all of the works, structures, and accessory arrangements which are 
 the property of the community, at the time of its forroitig, and thenceforward; 
 commencing with the dam or dams for taking the waters, their principal dimen- 
 sions, class of construction, nature, dimensions, and descriptions of openings, 
 position and relative elevation of bench marks for reference as to legal height; 
 then the principal canal, or canals if more than one, ditches derived from these, 
 and their main branches, with their respective alignments and position, struct- 
 ures, characters, sectional and other dimensions at various places, grade slopes, 
 capacities, etc. ; and, finally, the buildings and other works of administration. 
 
 Art. 22. Whenever it is proposed to construct new works, or to extend or 
 enlarge those already built, the proposition shall be considered in general con- 
 vention of the community,, and there determined upon, after having secured a 
 governmental authorization if necessary. 
 
 Art. 23. [In this article should be named the works which within the com- 
 munity district, remain the property of private individuals, but which form 
 part of the system of the community works, such as distributing ditches, cer- 
 tain structures, gates, etc., and stating clearly which of such works are to be 
 maintained at the expense of the community and which at the expense of their 
 owners. In general, the works which belong to individuals, and are subject to 
 their management or handling, should be maintained at their cost and respon- 
 sibility.] 
 
 Art. 24. The syndicate may order studies to be made of projects of works 
 for the better utilization of the waters possessed, or the increase of the supply ; 
 but it cannot carry forward .such works without the previous sanction of the 
 community in general assembly; nor in this case can any assessment or tax be 
 collected for such works executed without authority. Only in cases of urgency, 
 when circumstances and time will not permit of the convening and action of 
 a general assembly, may the syndicate inaugurate works, and they shall then 
 call a general assembly as soon as possible to give an account of their extra 
 proceedings. The syndicate shall have the final approval of plans of works of 
 repairs and conservation, so long as the total annual cost is kept within the 
 estimated total sums approved by the community in general convention. 
 
 Art. 25. [In this article shaU be determined the number and times of clean- 
 ing or clearing of works to be effected through the year, taking into account 
 the necessities of the cultivations, times of water supply, etc. And the meas- 
 ure of authority of the syndicate, to order extraordinary work of this kind, 
 .should be stated.] 
 
 Art. 26. No one shall do work on, or add to, or change the dams, canals, 
 main and branch ditches, or other works of the community, without the previ- 
 ous express authorization from the syndicate. 
 
 Art. 27. The owners of lands bordering the canals or ditches of the commu- 
 nity must not make works of any class on their edges or margins, not even on 
 pretext of defending their property, which the syndicate in any way opposes. 
 Should such works be necessary, the syndicate will on application order them 
 done, or will under conditions permit the owners to do them under its direc- 
 
IRRIGATION COMMUNITY ORDINANCE. 599 
 
 tion. ^Neither can the owners make any plantation or cultivation on the mar- 
 gins at a less distance from the edge of the work than that prescribed in the 
 ordinances and regulations of rural police. The community, however, may 
 protect the margins of its channels as may be advantageous, and do all it may 
 require upon the margins except the planting of trees within the legally pre- 
 scribed limit. 
 
 Ch.\pter III. — Of the Use of Waters. 
 
 Art. 28. Each member of the community has a right to the use of water for 
 irrigation, power, or industrial purposes, as the case may be, to the extent pro- 
 portional to his interest in the community as determined under a former arti- 
 cle. 
 
 Art. 29. [In this article shall be named the order established for the use of 
 the waters in irrigation, for power, and for industrial piirposes, and the order 
 established for use from the different main works or branches, if any, and the 
 order, if established, for its use by the different members of the community, as 
 may be agreed to in general convention, and respecting always the established 
 rights of individuals, and the power of the syndicate, under article 237 of the 
 law, to establish regulations for the better utilization of waters.] 
 
 Art. 30. Unless the community in general assembly shall determine other- 
 wise, the turns or rotations of water distribution which are found established 
 for irrigations, at the time of organization, shall never he changed to the preju- 
 dice of any one. 
 
 Art. 81. The distribution of the waters shall be effected under the direction 
 of the syndicate, by the aceqniero charged with such service, and in whose pos- 
 session are lodged the proper keys. No irrigator can himself take water except 
 at the time of his established and recognized turn. 
 
 Art. 32. No irrigator can, depending on the class of cultivation which he 
 adopts, claim a greater quantity of water, or his use of it for a longer time, than 
 that which, in the one or the other proportion, corresponds to his measure of 
 right. 
 
 AlBT. 33. If there should be a scarcity of water, or a less quantity available 
 than that which is due the community or to the irrigators, that disposable 
 shaU be distributed by the syndicate equitably and in proportion to the several 
 rights of the irrigators. 
 
 Ch.ipter IV. — Of the Lands and Mamifactories. 
 
 Art. 34. For the greater order and accuracy in the utilization of the waters 
 and the assessment of community taxes, as well as to insure proper respect for 
 all individual rights, there shall always be posted, according to position in the 
 district, a, general register showing: (1) In the matter of lands: the name of 
 owner and contents in hectares of each property, its boundaries and limitations, 
 right to water, in units of volume, turns, or times, and the proportionate part 
 which it has to hear of the total expenses of the community according to that 
 which has been already prescribed in articles 7, 8, and 23 of these ordinances; 
 and (2) in the matter of mills and industrial establishments : the name by which 
 each is known, its situation with respect to the ditch or canal from which it 
 takes water, the quantity of water to which it has a right, expressed by volume 
 and time, it determined, or its proportionate part of the whole flow, if the vol- 
 ume is not known, with the time for its use and the names of its owners, and 
 also the actual amount or proportionate part of the total expenses which the 
 work has to contribute to the community, and the vote or votes which are 
 assigned for the representation of the property in the general convention. 
 
600 APPENDIX III— A. SPAIN. 
 
 (In case, as happens in many old communities, the water-rights are in whole 
 or in part held separately from the land, and hence, can be utilized on different 
 properties within the irrigable district, there shall be, also, ordered, in this Arti- 
 cle, the formation of another register for the community members owning 
 water-rights, in which shall appear a record of the part or proportion which 
 belongs to each, expressed as in the former case described, together with the 
 amount or proportion of the whole which each will have to contribute to the 
 expenses of the community and the number of votes to which each is entitled 
 in the general assembly.) 
 
 Aet. 35. [Provides for another register arranged alphabetically by names of 
 iuembers, "to facilitate voting and the levy of assessments," etc.] 
 
 Art. 36. For the purposes expressed in article 21 there shall also be prepared 
 one or more complete plats or plans of the district, showing all of the irrigable 
 lands, their waters and works, on a scale or scales sufficiently large to represent 
 with clearness and precision the limits of the irrigable district embraced by the 
 community, and the limits of each piece of property, the point or points for its 
 taking water, the channels for its delivery, and the locality and class of their 
 structures, and all other buildings owned by the community; as also the local- 
 ity of all mills and industrial establishments, with their channels, openings, 
 and drainage ways. 
 
 Chapter V. — Of Offenses, Indemnities, and Penalties. 
 
 Art. 37. Any member of the community who — even without any intention 
 of doing harm, and only from ignorance of the consequences, or by neglecting 
 the fulfillment of duty imposed by the ordinances — commits any of the follow- 
 ing named acts, is guilty of an offense against the ordinances, which shall be 
 punished on the decision of the jury of irrigation of the community, namely: 
 By damages to works— (1) to permit any animal in one's possession to graze in 
 the channels, or on the banks or margins; (2) to make a watering place by a 
 channel, although no obstruction is caused, nor damage occasioned; (3) to 
 obstruct or pollute a channel or its margins, or impair any channel or structure: 
 By use of waters — (1) to avoid or neglect taking due care of one's own gates, 
 modules, or partitioners as adjudged by the syndicate; (2) to neglect placing 
 the accustomed signal or sign for the acequiero when one does not wish to irri- 
 gate at night ; (3) to allow water to pass to the drains and waste without utQi- 
 zation without giving due notice to the syndicate and seeking proper remedy ; 
 (4) to take water even at one's own turn without observing the formalities and 
 rules herein laid down; (5) to take more water than is due, or that which does 
 not belong to the person taking, or cause it to be wasted, either by backing up 
 in the channel and overflowing, by keeping a gate open too long, or by disar- 
 ranging a gate, module, or partitioner; (6) to take water from a community 
 ditch or its main branches, by other means than the established gates of dis- 
 tribution; (7) to take directly, by force or other means, from the said canal or 
 its branches or distributaries, any water for irrigation, without due authoriza- 
 tion from the community; (8) to obstruct the current in any way in order to 
 increase u. stream of distribution; (9) to neglect closing the openings at the 
 finish of one's irrigation turn, thus causing waste or loss of water; (10) to water 
 cattle or horses at points other than those designated for the purpose on the 
 ditches; (11) to wash clothes in, establish a fish pond, or otherwise employ 
 waters of the comn\unity without authority; (12) to abusively drive the water 
 into channels, in order to augment the power of a fall for motor jjurposes; (13) 
 to occasion injury to community or individual rights or property by any infrac- 
 
IRRIGATION COMMUNITY ORDINANCE. 601 
 
 tion of these ordinances or by committing any abuse or excess, whether inten- 
 tional or not. 
 
 Art. 38. Only in cases of fire can waters of the community be taken with- 
 out committing an offense, either by members or strangers to the community. 
 
 Art. 39. Irrigators or other community members offending, by infraction of 
 these ordinances, shall, on information, be judged, and, if proper, be punished 
 on the judgment of the jury of irrigation of the community, and shall pay, if 
 imposed V>y the jury, indemnity for damages and injuries caused to the com- 
 munity, or any member thereof, and also a fine liy way of punishment, but 
 which in no case may exceed the limit contained in the penal code for similar 
 offenses. (The limits of fines should be attached to each specific offense con- 
 tained in the foregoing article 37, for the guidance of the jury.) 
 
 Art. 40. When offenses in water utilization cause injury, although insensi- 
 ble, to the property of the community or a member, but which results in loss of 
 water or increased expense of maintenance, the jury shall estimate the extent 
 of injury and impose the fine, and the community shall receive tlie amount 
 
 Art. 41. The jury shall, in its discretion, judge of and inflict punishment for 
 acts of offense not named in this ordinance, by comparison with those which 
 are herein mentioned. 
 
 Art. 42. If oflFenses charged are not those herein named, and are criminal 
 before the laws, or are committed by persons not members of the community, 
 the syndicate shall lodge information with the proper authorities, as the law 
 provides. 
 
 Ch.\pter VI. — Of the General Convention or AssenMy. 
 
 Art. 43. The aggregation of all members of the community shall constitute 
 its general assembly, holding supreme power in the district. 
 
 Art. 44. Twice a year, and following a call from the president published 
 for fifteen days, the general assembly shall meet. [Here follows more specific 
 instructions as to times, etc., of holding the conventions, according to the neces- 
 sities of agriculture and convenience of irrigators.] 
 
 Art. 45. [Contains instructions as to character of publications to be made, 
 and names classes of business of which notice must be given in the publication, 
 in order to be taken up at the meetmg. Amendments to these ordinances 
 teing of the chief class.] 
 
 Art. 46. [Contains provisions concerning the place and times of sessions, 
 presiding officers and secretaries.] 
 
 Art. 47. All members of the community have right to take part in the pro- 
 ceedings of the assembly, and have right to vote on questions put, who-possess 
 (here shall be stated the least extent or area of irrigable land, or volume of 
 water, in litres per second, or flow in units of time, which confers on the owner 
 a right to vote), and also all holders of water-power privileges. 
 
 Art. 48. The votes to which members who are irrigating proprietors or 
 water-right owners are entitled, shall be determined as directed in article 239 
 of the law of waters, in proportion to the property which each represents. To 
 fuliUl the legal rule, one vote shall be counted for [Here explain system adopt- 
 ed. There should be a least and a greatest limit of interest corresponding to 
 the first vote of a member, and then he should have an additional vote for 
 every duplication of these amounts.] Those who own interests in parcels too 
 small to entitle them to a vote, may unite their interests and fix on one of their 
 number to cast the corresponding ballots, but evidence of this must be pre- 
 sented in writing. 
 
602 APPENDIX III— A. SPAIN. 
 
 Abt. 49. Members of the community may be represented in the assembly 
 by other members, upon a written authorization. [Other provisions at great 
 length about representation.! 
 
 Art. 50. The general convention shall have power (1) To elect the president, 
 members of the syndicate, and those of the jury of irrigation, with their sub- 
 stitutes, and member or members of the central syndicate, if any ; (2) to exam- 
 ine, debate, and sanction or reject aU plans and estimates, (3) all accounts and 
 reports; (4) to authorize the levy of ordinary and extraordinary taxes or assess- 
 ments. 
 
 Art. 51. The general assembly shall specially consider (1) Propositions and 
 estimates for new works, (2) extraordinary taxes, (3) acquisition of additional 
 waters, (4) complaints lodged against the syndicate, (5) matters brought to its 
 attention by the syndicate, and (6) matters relating to changes in utilization of 
 the waters. 
 
 Art. 52. [Specifies subjects proper to be considered at autunm or winter 
 meeting of assembly.] 
 
 Art. 53. [The same, for spring or summer meeting.] 
 
 Art. 54. A majority vote by members present or properly represented shall 
 determine questions put. The voting may be public or secret. 
 
 Art. 55. [Contains matters of detail with respect to voting at first-assembly 
 and subsequent meetings.] 
 ' Art. 56. [Subjects which can not be voted on without special notice.] 
 
 Art. 57. Every member may present subjects for discussion, whether notice 
 has been given or not, in order that they may be on the list for the next meet- 
 ing of the assembly. 
 
 Chapter VII. — Of the Syndicate. 
 
 Art. 58. The syndicate charged speciaBy with executing these ordinances 
 
 and the decisions of the community, shall be composed of members, elected 
 
 directly by the community in general assembly. One member shall represent 
 exactly the small group of properties, which, by reason of situation or order 
 established, must last receive the waters. When the community is composed 
 of several companies or associations, of either irrigators or manufacturers, or 
 both, each shall have its representation in the syndicate corresponding to the 
 extent of its interest. [The above is an abridgment of a long article intended 
 to insure to each sub-district or well defined local or class interest in a commu- 
 nity its due and proportional representation in the syndicate. The article 
 closes with a note to the effect that the number of m^embers of the syndicate 
 must be adjusted from time to time, as may be necessary, to the varying inter- 
 ests to be represented.] 
 
 Art. 59. [Provides that when the community uses waters delivered by a 
 company or individual under a government concession, the grantee shall be a 
 member of the syndicate.] 
 
 Art. 60. [Contains detailed instructions for balloting in the general conven- 
 tion for members of the syndicate, for canvassing and proclaiming the result,, 
 and issuing certificates of election.] 
 
 Art. 61. [Concerns the taking of office by member of the syndicate newly 
 elected.] 
 
 Art. 62. The syndicate shall elect a president and vice-president from 
 amongst its members, etc. 
 
 Art. 63. [Specifies qualifications to be eligible as member of the syndicate — 
 one being a qualified voter of the community, have an interest entitling the 
 holder to number of votes.] 
 
IRRIGATION COMMUNITY ORDINANCE. 603 
 
 Art. 64. The member of the syndicate who, during his term, loses any of the 
 foregoing qualifications, shall immediately forfeit his office, and his place shall 
 he taken by the substitute from his quarter of the district. 
 
 Akt. 65. The term of holding as a member of the syndicate shall he four 
 years ; half of its members being elected each two years. [Enters at length.into 
 details as to keeping certain interests and localities properly represented.] . 
 
 Akt. 66. Members of the syndicate shall serve without compensation ; and 
 cannot refuse office unless immediately reelected, or by reason of change of 
 residence, or being upwards of 60 years of age. 
 
 Art. 67. When there is more than one community of irrigators to utilize 
 waters from any one source of supply, and it is desired for mutual benefit, or is 
 ordered by the minister of public works, for the public good, that a central syn- 
 dicate be established, it shall be composed of members named by each com- 
 munity proportional to the extent of their respective irrigations. [The article 
 concludes with specifications as to qualifications, terms, etc., of members of the 
 central syndicate.] . 
 
 Ch.<,ptee VIII.— 0/ the. Jury of In-igation. 
 
 Art. 68. The jury- or tribunal, which. is established by article 12 of these or- 
 dinances, in fulfillment of article 212 of the law, shall have for its duty : (1) To 
 consider and determine questions of fact which are raised concerning irriga- 
 tion, etc.; and, (2) to impose on violators of these ordinances the fines and 
 penalties due to their offense. 
 
 Art. 69. The jury shall be composed of a president, who shall be a member 
 
 of the syndicate, designated by it, and of jurors; and there shall be an 
 
 equal number of substitutes. 
 
 Art. 70. Members of the jury shall be elected at the same time and in the 
 same manner as members of the syndicate. 
 
 Art. 71. The qualifications for a juror shall be the same as those for a mem- 
 ber of the syndicate. 
 
 Art. 72. Xo person shall be at the same time a member of the jury and of 
 the syndicate, except the president of the jury named by the syndicate. 
 
 Art. 73. A special regulation shall embody the details of powers and duties 
 of the jury of irrigation. 
 
 Chapter IX. — General Orders. 
 
 Art. 74. The measures, weights, and money which are used in-all that refers 
 to the community shall be those legalized as the decimal metric system, which 
 has for its units the meter, kilogramme, and dollar (Spanish). 
 
 For the measurement of waters, the litre per second shall be used as the 
 unit; and for motive power created by the employment of waters, the kilo- 
 grammeter — a horse power being 75 kilogrammeters. 
 
 In every case these shall be interpreted and accompanied by an expression 
 of their equivalents in the local provincial terms. 
 
 Art. 75. These ordinances do not confer individual rights not already held, 
 nor do they take from those possessed by any member. 
 
 Art. 76. [Repeals former ordinances, if any.] 
 
 Chapter X. — Transitory Orders. 
 
 Art. 77. [Is devoted to details of temporary, preliminary, and other transi- 
 tory matters of organization and business.] 
 
604 SPANISH RE G ULA TIONS. 
 
 APPENDIX III— B. 
 
 [Under this and other headings it was intended to include in this publication 
 translations of the laws and regulations below named. They have been revised 
 and their principal features abstracted in chapters XXI and XXII, and now 
 are named with references to guide those who wish to pursue the subject fur- 
 ther. General law of Public Works, Spain, 1877; Administrative regulation 
 (model) for government of syndicate boards of control, Spain, 1884; Adminis- 
 trative regulation (model) for government of water-courts, Spain, 1884; Ad- 
 ministrative regulation (model) for organization and government of general 
 syndicate associations, Spain, 1884; Administrative regulation establishing 
 rules to be followed in applying for water privileges, grants, or concessions, 
 Spain, 1882 ; all to be found in the works of Pardo and of Bentabol y Ureta here- 
 inbefore referred to.] 
 
IRRIGATION REPORT. 605 
 
 MEMORANDUM. 
 
 ACKNOWLEDGMENTS. 
 
 In the compilation and writing of this volume no direct assistance has been 
 had, except in making translations. The study was undertaken at the sugges- 
 tion and with the counsel of the late Geheeal B. y. Alexandee, Engineer Corps 
 U; S. Army, consulting engineer to this state department in 1878, to whose 
 memory the writer recurs with a sense of obligation for many professional 
 courtesies and much valued advice. 
 
 The advantage of consultation with Hon. John B. Hall, counselor at law, 
 Stockton, has been had during the course of the study. To the guiding influence 
 of his learned and able criticism is due much of the merit of systemization and 
 of thoroughness which these chapters may have, as also their freedom from 
 certain errors which otherwise would probably have been made. The respon- 
 sibility for the work, however, rests with the writer. It has not been revised 
 by any one else. 
 
 In the years 1880 to 1882, inclusive, the advice of the late Hon. George P. 
 Maesh, United States Minister to Italy for a long period, was had by means of 
 an extended private correspondence. For his kindly review of the first report 
 on irrigation made by this department, and of a manuscript of the first writing 
 of a portion of this volume ; for his advice in the matter of authorities to be 
 read, and the value to be put upon them; for his favors in collecting and for- 
 warding a quantity of original data, and a number of pamphlet and paper pub- 
 lications pertinent to the subjects in hands ; and for his poUteness in placing 
 the writer in correspondence with European authorities who have extended 
 other courtesies, a great obligation was incurred which it is the object of this 
 paragraph to suitably acknowledge. 
 
 "When commercial and available private ways had been tried without suc- 
 cess in endeavors to obtain publications and data desired, requests were made 
 through official channels, in response to which a number of gracious and sub- 
 stantial favors have been received : 
 
 From E. El Conde de Toeeno, Minister of Fomento, Spain ; volumes of the 
 Memm-ia sobre las Obras Publicas, referred to on p. 468 of this volume. (1877.) 
 
 From SeiJoe A. Pidal y Mon, Minister of agriculture and public works, Spain : 
 additional volumes of the same publication, with other favors. (1884.) 
 
 From D. Andeeas Llaueado, Chief engineer, etc., Madrid ; a copy of his own 
 and other publications. (1883.) 
 
 From El Combe. Alessasdeo Peofe. Betocchi, Inspector of the royal corps 
 of civil engineers and member of the Superior council of public works, Italy ; 
 reports on Italian rivers. (1883.) 
 
 From El Comee. Antonio Baooaeini, Minister of public works, Italy; data 
 respecting the Italian hydraulic service. (1882.) 
 
 From SiGNOE D. Beeti, Minister of agriculture, Italy; publications of his 
 department, relating to irrigation. (1882.) 
 
606 IRRIGATION REPORT: ACKNOWLEDGMENTS. 
 
 From His Ext-ELtENcy Bakon Fava, Italian Minister to the United States, 
 and through him from the Ministers of agriculture and of public works of Italy; 
 a collection of recent Italian irrigation and water laws and regulations, and 
 the favor of a review of the advance sheets of the part of this volume relating 
 to Italian laws, etc. (1885.) 
 
 From SiGNOK A. W. Lambertemghi, Italian consul at San Francisco; copies 
 of old Sardinian and other Italian laws, and other courtesies of a substantial 
 kind. (1884.) 
 
 From , Minister of agriculture, France ; copies of the reports of 
 
 the French government irrigation commission. (1882.) 
 
 From M. T. J. Melino, Minister of agriculture, France; copies of the depart- 
 mental bulletin containing valuable matter. (1884-1885.) 
 
 From M. Henry Gkosjean, Inspector, agricultural department. Prance; 
 copies of reports, etc., and other data. 
 
 For the courtesy of correspondence and transmission of correspondence and 
 other matter, special acknowledgment is due to Signor A. de Foresta, Italian 
 charge d'affaires at Washington (1885); to the Hon. F. T. Fbelinghuysen, Sec- 
 retary of State, Washington (1882); Hoif. L. B. Morton, TJ. S. Minister at Paris 
 (1882); Hon. A. A. Sargent, U. S. Minister at Berlin (1883); and Hon. A. Augus- 
 TiN Adee, U. S. charges d'affaifs, Madrid (1877). 
 
 From favors thus received very much data has been culled, but it has not 
 been possible, with the means at command, to completely avail of the oppor- 
 tunities thus offered. Furthermore, the great mass of matter, although, perti- 
 nent to irrigation and arterial drainage subjects, has not been applicable in the 
 chapters of this volume. Other similar courtesies have been received from 
 other sources, which will find fitting acknowledgment in the third part of this 
 report, where the data will be used. 
 
 The greater part of the Spanish translations have been made by Mr. Duncan 
 Beaumont, Secretary, and of the French, by Edward Boehme, clerk in the 
 department. Very much assistance has also been had in this way from Mr. 
 John H. Quinton, assistant engineer. Gen. George B. Cosby, former secretary, 
 and Mr. A. D. Splivalo, of San Francisco. 
 
 Col. Geo. H. Mendell, TJ. S. Engineer Corps, and Mb. James B. Eads, Civil 
 Engineer, were associated with the writer as consulting engineers on other 
 branches of the work, but not upon the special topics treated in this volume. 
 Due acknowledgment of their valued counsel wUl be made in a publication 
 relating to the subjects of their advice. 
 
 AUTHORITIES. 
 
 For purposes explained in the introduction to this volume, it has been an 
 endeavor in preparing these chapters, to preserve the references to original 
 authorities, and always to accord special credit where due. Any material omis- 
 sion which may have been made in this matter has resulted from accident or 
 the unavoidable contusion in a work which has had very many interruptions 
 and disturbed intervals. The writer is sensible of no act of plagiarism. An 
 insensible copying of forms of expression and styles of composition is scarcely 
 to be avoided in Writing from authorities such us have been followed in this 
 work. 
 
 It is believed that the translations nuide constitute the first general attempt 
 to render into English the water-laws and regulations of the irrigation coun- 
 tries of southern Europe. There have been a number of limited efforts in this 
 field; but the results of these, even, are now muqh behind the times. 
 
IRRIGATION REPORT: AUTHORITIES. 607 
 
 The work of R. Baird Smith, published in 1855 (see p. 106 hereof), contained 
 English renderings of many old Sardinian and Lombardian laws and regula- 
 tions. This is the only English work wherein a real study of the water and 
 irrigation laws of either Italy, France, or Spain is attempted; but it is far 
 behind the times on this subject, even for the one country it related to. 
 
 The volume of C. Scott Moncrieff, published in 1868 (see page 154 hereof), 
 contained, as appendices, translations of a part, only, of the Italian code arti- 
 cles relating to waters and irrigation, and also the Spanish water-law of 1866. 
 But in each of these efforts the author took only one step into the field of this 
 subject; and in it his results also are now in large part out of date. 
 
 The entire civil code of France is published in English, after the rendering of 
 E. S. Richards (see p. 73 hereof). But only a smaU part of the water and irri- 
 gation law system of France is found in its code, although the foundation for 
 a large part of it is there. The interpretations of these provisions and regula- 
 tions under them are essential for any satisfactory understanding of them, 
 and these it is believed first find place in English print within the covers of this 
 volume. 
 
 Due credit has been given these translators, but in every case the originals 
 have been examined, and material corrections sometimes made of their render- 
 ings. The Spanish general water-law of 1879 (appendix III, hereof) has, it is 
 believed, never before been published in English, as also all of the Spanish laws 
 and regulations, and all those of Italy bearing dates since that of Moncrieff 's 
 book (1868), and about all of the French legislation, etc., on our subject, except 
 the part contained in the code. 
 
 The now quite old special works of Dumont, DeBuffon, Aymakd, and Smith, 
 and the somewhat newer one of Moncrieff, have been the basis of this work. 
 Culling from them their data pertinent to the inquiry, I have then supple- 
 mented their labors on the subject as it formerly stood, by appeals to standard 
 authorities, such as Dalloz, Merlin, Proudhon, Pigoeeau, Boron, Escriche, 
 the NovisiMA Recopilacion, and the translations from some of these and oth- 
 ers, by Richards, White, and Rockwell. 
 
 The work has then been brought forward, added to, and the field broadened, 
 upon the authority of the volumes by De Passy, Malapert, Baeral, Llaxjrado, 
 Pardo, Bentabol y Ureta, the Memoria sobre las obras publicas, and articles and 
 laws in the Annales des ponts et chausseis. And the subject has been further 
 illustrated upon the authority of the writings of Reclus, Debauve, Mangon, 
 and Marsh. 
 
 On points of history, politics, institutions, and general statistics, not supplied 
 by the special works examined, the books of Hallam, Sismondi, Wallis, and 
 Martin, and the encyclopedia articles found duly credited were examined. 
 And, finally, the last governmental publications of laws and regulations were 
 specially obtained from Italy and Spain, which, with the aid of other data, and 
 the suggestions and advice elsewhere acknowledged, have enabled the writer 
 thus to close the work to late dates. 
 
 OTHER REPORTS, AND THE MAPS OF THE DEPARTMENT. 
 
 In addition to this general report on irrigation, the State Engineering Depart- 
 ment has prepared the matter for other publications. 
 
 A volume of data and statistics of rainfall, temperature, evaporation, drain- 
 age basins, flow of streams, flow of artesian wells, topography of river channels, 
 land classifications, etc., is now in course of printing. Another extended work 
 on the state and county boundaries, and their descriptions, prepared under 
 
608 S. E. DEPARTMENT: REPORTS AND MAPS. 
 
 special instructions from the legislature, is likewise in course of publication. 
 The data for a volume of statistics of water-right claim:;, and irrigation and 
 canal incorporations, is in large part in hands; as also that for a report on the 
 flood phenomena, arterial drainage problems, and history of reclamation enter- 
 prises in the central valley of the state; but at this time it is not known that 
 these two last works will be completed. 
 
 There will be presented to the next legislature a report on the work and meth- 
 ods of the department, and a synopsis of the present and all other reports 
 issued by this department to that time. 
 
 There are in this office the following named maps, the completion and publi- 
 cation of most of which is contemplated : 
 
 I — A general map of the State of California, on the scale of six miles in the 
 inch, covering a space of about ten feet square. It has been the intention to 
 make this a topographical and general land map, showing land divisions down 
 to sections of the public land surveys, and to publish it in a form suitable for 
 a wall map in three parts — Northern, Middle, and Southern California. 
 
 II — Twenty-five atlas sheet maps, on the scale of four miles in the inch, each 
 thirty-six inches long by twenty-three inches wide, together embracing the 
 whole state, and accompanied by a map of the state, in outline, on one sheet of 
 the same size, and serving as a key to the separate sheets. These maps are 
 prepared as land maps in detail, and show the topography of the country in so 
 far as lines of drainage and principal well established features are concerned, 
 but no attempt to make them topographical maps in detail, as to mountain 
 and hill representation, will be made. In the preparation of this set of maps it 
 has been the intention to publish them as outline maps and in the form of an 
 atlas, and have them serve as the basis of the future physical survey of the 
 state, which, now commenced, will doubtless be completed at some time in the 
 future. The scale of these maps is sufficiently large, and the detail shown is 
 sufficiently minute, to render them desirable and valuable locally as land maps. 
 
 Ill — A general drainage area map of the state of California, on the scale of 
 twelve miles in the inch and occupying a sheet fifty-four by sixty inches. This, 
 map shows the lines of drainage for the entire state and the outline of the chief 
 physical features of the country, and is intended as a general illustration to- 
 accompany the report on irrigation. It is the first attempt at a skeleton phys- 
 ical map of the state, and will serve the purpose of such map until the state 
 becomes well settled, and the details of its physical geography are much better 
 known than they are now. This map would serve as the general illustration 
 of a nmch more detailed and extended report than the state engineer is able 
 to make now with the data at hands. 
 
 IV— A general topographical map of the Sacramento, San Joaquui, and 
 Tulare valleys, and adjacent foothill regions, showing twenty-foot contour 
 curves— or lines of equal height on the ground's surface, for each twenty feet 
 above the level of low tide in the bay of Suisun— for all the valley lands, and 
 hachured topography for the foothill region. This map has been prepared as. 
 the general illustration of the report on irrigation for the valley, as well as for 
 the basis of a detail exhibit of the general subject of the physical survey of the 
 state. It represents the result of a great amount of Information acquired by 
 original field work of this department, and by private and other surveys, now 
 for the first time connected up and utilized to show, approximately, the eleva- 
 tion, fall, and slope of the plains at every point, and the outlining and form of 
 
i". E. DEPARTMENT: MAPS. 609 
 
 the foothill topography. It is on the scale of six miles in the inch, and may 
 be published on a sheet seventy-two inches long by twenty inches wide. 
 
 V— Four detail topographical and land maps, together embracing the San 
 Joaquin and Tulare valleys, including the Mokelumne and Kern river regions 
 at the extremes, and showing contour lines of location for every ten feet in 
 elevation, above low water in the bay, for the valley lands, and showing the 
 foothills and valleys outlined in detail. These maps, so far as topography is 
 concerned, are in large part the results of original surveys or reconnoissances 
 by the state engineering department, and otherwise are based on surveys of the 
 United States engineer corps, various railroad and canal companies, and pri- 
 vate individuals, which have been connected by the state work, and thus made 
 available. The maps are on the scale of two miles iii the inch, and each occu- 
 pies a sheet about sixty-six by thirty inches. They have been prepared as an 
 exhibit in detail of the general subject of irrigation in and for the region which 
 they cover, and are intended to accompany the report. 
 
 VI — A detail topographical map of each of the rivers: American, Mokel- 
 umne, Stanislaus, Tuolumne, and Merced, from their respective canon mouths 
 to their points of flow through the open plains These maps embrace their 
 respective rivers and adjacent regions, from the upper to the lower point, at 
 which it is at all likely water will ever be diverted from them for purposes of 
 irrigation on the plains, and have been prepared as detail exhibits of the subject 
 of diversion of waters for irrigation. They each occupy a sheet about twenty- 
 four by forty-eight inches in area, are on the scale of 3,000 feet in the inch, and 
 are intended to accompany the report on irrigation. Maps of the San Joaquin, 
 Kings, Kern, and other rivers on this scale have not been attempted. 
 
 VII — A general topographical and land map of the basins and valleys of the 
 Santa Ana, San Gabriel, and Los Angeles rivers, embracing all the territory of 
 Los Angeles and San Bernardino counties draining into the ocean from the 
 headland above Santa Monica to that next below the mouth of the Santa Ana 
 river. This map includes the thickly settled aiid irrigated regions of southern 
 California, and is intended as a general illustration for the report on irrigation 
 for that region. It is on the scale of two miles in the inch, and occupies a sheet 
 about five feet by three feet. 
 
 VIII — Detail maps of each township or part of township, on a scale of half 
 a mile in the inch, of the irrigated valley lands of Los Angeles and San Ber- 
 nardino counties. These are the detail exhibits as to irrigation in the region 
 named, and should be published on about half their present scale, to accom- 
 pany the report. 
 
 IX — Detail maps of the San Joaquin, Kings river, Kaweah, Tule, and Kern 
 river irrigation districts ; showing rivers, canals, ditches, land divisions, and 
 extent and classification of irrigations. These maps are on a scale of one mile 
 in the inch, and are to be published as illustrations of the report on irrigation. 
 
 Most of the local maps will be published in very cheap but useful styles, and 
 
 all published will be sold at a small advance on cost of publication, as by the 
 
 law directed. 
 
 WM. HAM. HALL, State Engineer. 
 
 39' 
 
PUBLIOATION. 
 
 This volume is published under and by virtue of the following Joint Resolu- 
 tion, adopted by the Legislature of California, on March 9, 1885: 
 
 Assembly Joint Eesolutioh No. 1 — Authokizing and Directing the Pub- 
 
 MCATIOU AND DISPOSAL OF THE KePOBTS AND MAPS PbEPAKED BY THE StATE 
 
 Engineer. 
 
 Resolved by the Assembly, the Senate concurring, That an edition, not to exceed 
 three thousand copies, of the final report of the State Engineer, on the Prob- 
 lems of Irrigation, as outlined in the report of progress made to this Legisla- 
 ture, for the years eighteen hundred and eighty-three-eighty-four, together with 
 the maps and diagrams accompanying the same, be printed and published 
 under the joint direction of the Governor, the Superintendent of State Print- 
 ing, and the State Engineer, and in good, substantial, useful, and salable style, 
 as by them to be determined. 
 
 Resolved, That these works shall be disposed of as follows: 
 
 Five hundred copies to be distributed gratuitously, under the direction of 
 the Governor, to free libraries, state institutions, and in exchanges with foreign 
 societies and institutions, and. notable persons ; two thousand five hundred 
 copies to be delivered to the Secretary of State, to be by him kept on sale at 
 prices to be fixed by the Governor, at amounts about twenty-five per cent 
 advance on cost of publication. 
 
 Resolved, That all moneys received from said sales shall be duly and sepa- 
 rately accounted for, and immediately be paid.into the State Treasury, to the 
 credit of the General Fund. 
 
 Resolved, That a short abstract of the full report may be prepared, printed, 
 and distributed gratuitously throughout the country, for the purpose of plac- 
 ing the main points of the work before the public, and as an advertisement of 
 the work itself on sale. 
 
 In compliance with this authorization, this volume may be had, on applica- 
 tion, by book dealers and by individuals, as will be announced in an advertise- 
 I ment following the index. 
 
INDEX. 
 
 Abogado, Manuel del— On custom. 363 
 
 Abutment^Right of 
 
 140, 473, 554 (A. 613), 569 
 
 Accession— Right of 529, 537, 559 
 
 Acknowledgments 19, 605 
 
 Acequiero _ 383-432 
 
 Acquired rights to water 
 
 46, 81, 129, 198, 210-220, 371-372, 376- 
 381, 453-468, 553-554, 57.5-577, 580-585 
 
 Adjudication of Water Claims 
 
 - --.219-220,463 
 
 Administration : 
 
 General, Prance .61-67, 103-110 
 
 Italy 220-223 
 
 Spain _. 479-183, 593 
 
 Community, Prance .148-151 
 
 Italy - - .315-319, 321-333, 550 (A. 678) 
 
 Spain 
 
 388, 392, 400, 403, 409, 410, 417, 429, 
 423 ,431, 484, 498-506, 589-592, 601-603 
 Of irrigation — Governmental : 
 
 Prance ..118-126 
 
 Italy.-* 233-238, 240-267, 275-283 
 
 Spain 423, 461, 585 (A. 204) 
 
 Of irrigation — Local ("Commu- 
 nity," above.) 
 Of irrigation — Municipal: 
 
 Spain ._ 
 
 366-371, 392, 400, 412, 416, 422, 482 
 Of water-courses — Governmen- 
 tal: 
 
 Roman 42-45 
 
 France.... 67-71, 74^82, 90-94, 108-126 
 
 Italy 191-197, 219-233 
 
 Spain 479-483, 505-506, 593-595 
 
 Of water- courses — Local: 
 
 Italy _. .222-223 
 
 Spain 293-398, 372, 430, 483^90, 
 
 505-507, 579, 592, 589, 592 (A. 241) 
 Of Government canal works : 
 
 France 164-168, 108-111 
 
 Italy - 220-223, 233-238 j 
 
 Spain 481-483 
 
 Necessity for- Object of— Sys- 
 tem in. ...61, 64, 67, 75, 115-117. 488 
 
 Advances, loans, etc 157, 159-160, 
 
 165-178, 333, 348, 511-514, 518-521 
 Agreements. (See " Water.") 
 Agriculture. (See "France," "Italy," 
 "Spain.") 
 
 Agricultural surveys 
 
 --. 12, 162-165, 350, 516 
 
 Alexander, General B. S 19, 605 
 
 Alicante— District of 408-409, 509 
 
 Alluvion ...43,529,537,559 
 
 Almansa— District of 428, 509 
 
 Ancient custom, etc... 362, 365, 431, 488 
 Applications for water privileges . 
 
 .80, 210, 212, 216, 464, 520, 582 
 
 Apportionment of waters 
 
 -.120-124, 213, 385, 530 
 
 (A. 645), 540 (A. 544), 585 (A. 204.) 
 Appropriation of waters 
 
 — -- (C.) 6, (S.) 372, 
 
 453, 460, 465, 556 (A. 23), 567 (A. 86.) 
 Aqueduct. (See " Right-of-way.") 
 Arterial drainage (C.) 
 
 9-10; (P.) 77, 90, 98, 101, 112; (I.) 
 
 191-197, 221, 224, 225, 231, 241, 350; 
 
 (S.) 356, 371, 442, 515, 559, 561, 562, 563 
 Artesian weUs 
 
 ..113, 454, 456, 528, 537, 555, 556, 557 
 Arbitration. (See "Water-Courts.") 
 Assemblies of irrigators 
 
 .- 151-153, 315, 321, 330, 
 
 387. 417. 429. 432. 494. 499. 549. 592. 601 
 Assessments 
 
 . - .95, 159, 230, 329, 388, 401, 404, 411, 
 
 418. 424. 429. 432. 495. 501. 550. 590. 602 
 Association in irrigation 
 
 - Compulsory, 153, 315, 
 
 330, 491-494, 549, 589; Voluntary, 91, 
 153, 328, 549; Development of, 79, 
 148,314,383-432,484-489; Necessity 
 for, 148, 312-314,320,335,485; Policy 
 towards, 91, 149, 328-333, 490, 549, 
 
612 
 
 INDEX. 
 
 589; Principle of, 91, 150, 316, 330- 
 
 331, 334, 483, 493, 550, 589, 596; Kight 
 
 of, 149, 315, 328, 383-432, 549, 589 
 
 Associations— Notable irrigation : 
 
 '■ Bourne," " Rhone" (France) 172-174 
 
 " West of the Sesia" (Italy).. 319-328 
 
 " Valencia," " Murcia " (Spain) . . 
 
 383-392,414-420 
 
 (See " Communities.") 
 
 Atendadores .- 390 
 
 Auction sales of concessions 
 
 165,513,521,583 
 
 Auction sales of water ..411, 427 
 
 Authorities : 
 
 On Roman Water-laws. 48 
 
 French.— 73, 99, 126, 134, 142, 154, 179 
 Italian. .206, 239, 267, 283, 311, 333, 351 
 Spanish. .382, 413, 482, 468, 478, 507, 524 
 
 General 606 
 
 Authorizations, to divert waters — 
 (See '■ Water-rights," "Ac- 
 quired rights to water," 
 "Concessions," "Diversion of 
 waters.") 
 To construct works in water- 
 courses, etc i44,47, 
 
 ■ 64-67, 76-78, 80, 92-93, 110-114, 192, 
 195, 208, 211, 213, 216, 225-226, 229, 
 273, 372, 448, 464, 561, 563, 577, 580-585 
 
 Aymard, M. Maurice 384, 607 
 
 "Irrigation in South Spain".413, 607 
 On Valencian tribunal of wa- 
 ters 395-397 
 
 On system of selling water 413 
 
 On self-government in irrigation. 420 
 
 On measurement of water 425 
 
 On sellingwater at Lorca. 427 
 
 On Moorish and Spanish sys- 
 tems ._ 488 
 
 On Moorish system in Granada. 488 
 
 B 
 
 Baccarini— E. Bl Comre 605 
 
 Banks— Stream... 40-41, 56-57, 190-195, 
 205, 224-225, 443-445, 528, 538, 558, 561 
 
 Barral, M. J. A 607 
 
 " Irrigations — Vaucluse " 154 
 
 " Irrigations— Rhone " 154 
 
 On irrigation study, France 162 
 
 Beds— Lake and pond 
 
 529,537-538,558-559 
 
 (See "Channels.") 
 Bentabol y Ureta — " Repertory, 
 
 etc.. Waters " - 468, 607 
 
 Berti, Signor D - 605 
 
 Betocchi— E. El Comre 605 
 
 Boron— Sardinian Code (Ed.). .239, 607 
 
 Bridging public streams .- 586 
 
 Brooks, Hon. B. S. (argument) 382 
 
 Brooks. (See "Streams.") 
 Brown — "Compendium of Civil 
 
 Law" 48 
 
 On Common Property 38, 41 
 
 On Right of Diversion 44 
 
 Bouches du Rhone — District of . . . 51 
 
 California — Comparative size of . . . 10 
 
 Climate and rainfall.. 144 
 
 Irrigation in 9 
 
 Irrigation development in 5 
 
 Irrigation investigation in 
 
 9-14, 607-609 
 
 Irrigation policy wanted 6-12 
 
 Irrigators of.. 5 
 
 Land values in 5, 146 
 
 State a ction proposed 6-8 
 
 Canal owners 258, 263-267, 545, 585 
 
 Canals — Notable : 
 
 'France. 165-178 
 
 Italy 336-339 
 
 Spain. 508-513,523 
 
 Canalization of rivers ..90, 585 
 
 Capital — Exemptions of 
 
 511, 512, 514, 518, 520, 564 (A. 68), 583 
 
 Guarantees of interest on 157 
 
 Protection of 578 
 
 Cavour— On waste of water 261 
 
 Channels ...56, 190, 44.3-445 
 
 Changes of 529, 538, 559 
 
 Clearance of .77, 95-98, 274,562, 565, 571 
 
 Civil Engineers. (See " Engineers.") 
 
 Claims. (See "Water.") 
 
 Coda dell 'acqua :... 256 
 
 Codes, Roman — Justinian... 48 
 
 Roman— Hunter ._ 48 
 
 Codes, France— " Napoleon". .55, 73, 102 
 France— Articles from 527-534 
 
 Codes, Italy—" Victor Emmanuel " 
 
 188, 190,200 
 
 Italy— Articles from 535-551 
 
INDEX. 
 
 613 
 
 Italy, Old— Sardinian, " Charles 
 
 Albert" 189, 200, 239 
 
 Italy, Old- Piedmontese "Charles 
 
 Emanuel" 286,289 
 
 Italy, Old— Milanese 208, 287 
 
 Italy, Old — Lombardian ("Wa- 
 ter" decrees) 201,213 
 
 Italy, Old— Venetian ("Water" 
 
 regulations) -- 208 
 
 Italy, Old — Lombardo-Venetian 
 
 (Austria) 287 
 
 Codes, Spain— "Water" (1879)...- 439 
 
 Spain— Translation of 552-595 
 
 Spain — Novisima KecopUacion- 
 
 361, 382 
 
 Spain, Old — Gothic, Castilian, 
 
 etc 360,364 
 
 Spain—" Water " (1866) 439 
 
 Spain, Local—" Water " 383-432 
 
 Spain, Local— "Community". 596-603 
 
 Colatura 228, 307, 548, 585 
 
 Colmatage 91, 306, 348-349 
 
 Colquhoun — " Summary of Roman 
 
 Law".- 48 
 
 On common property. 38, 41 
 
 On diversion - - 44 
 
 On property in river beds 41 
 
 On river control -.- 42 
 
 On right of way 47 
 
 On river works - 42 
 
 Comision de Hacendadas - - 418 
 
 Common channel — Use of - 
 
 _ 300-304,542,566 
 
 Common property. 38, 
 
 41, 44, 56-58, 101, 365, 528, 534, 536 
 Common utilizations of waters. 572-575 
 Communal property.. 366, 368, 528, 536 
 
 Commune 63,64,366-370 
 
 Communities of irrigators 
 
 148-153,312-333, 
 
 383-432, 483-507, 549, 550, 589-592, 596 
 (See "Administration," "Asso- 
 ciation," "Associations.") 
 
 Community of interest. 
 
 _._.91, 102-108, 14&-146, 150, 
 
 153, 230, 314, 330, 335, 483, 490-495, 
 
 499-501, 549, 550, 561-563, 572, 589-592 
 
 Community of property.. .366-370, 550 
 
 Community ordinance — Model... 596 
 
 Compensation — for rights-of-way . 
 
 : -137,141, 
 
 285-292, 297, 308, 470, 476, 542, 567, 569 
 
 for water rights 
 
 462, 577-578,581, 582, 601 
 
 for damages by floats, floods, 
 
 etc 574,562 
 
 Competition in irrig. practice. -161, 348 
 
 Compulsion — in organization 
 
 91, 153, 330, 490-492, 499-501, 550, 589 
 
 in sanitary drainage 563 
 
 Companies— Irrigation 79, 82, 147, 
 
 157, 160, 165-178, 312, 339, 518, 522 
 Notable Irrigation — 
 " General Irrigation and Water- 
 supply Company, France" .168, 174 
 "Company General of Italian 
 
 Irrigation" 339 
 
 "Iberian Irrigation Company". 513 
 Concessions — Notable irrigation. - 
 
 82-89, 165-178, 323-327, 339-347, 522 
 
 Concessions — Auction sales of 
 
 166,513,521,583 
 
 Classification of 462, 577 
 
 Terms of .83-89,97, 
 
 165-178, 213-220, 323-327, 339-347, 
 459-468, 517-521, 544, 575-578, 581 
 
 Of artesian rights .-- 557 
 
 For canalizing rivers 585 
 
 For drainage of lands 563 
 
 Duration of -579, 581, 585, 588 
 
 Of sewer waters --- 554 
 
 Of water power - 461, 586 
 
 Condemnation. (See "Expropria- 
 tion," " Public utmty.") 
 
 Conflicts — Conciliation of - 103, 
 
 116, 121, 205-206, 499, 530, 540. (See 
 "Prior rights," "Water courts.") 
 
 Of interest^Notable 5,6,8, 
 
 11, 101-108, 221, 258-262, 314, 364, 499 
 Construction. (See "Works.") 
 Contentions. (See " Conflicts.") 
 Continuation of supply. (See 
 " Water-supply," " Irrigators' 
 rights.") 
 Contracts. (See "Public works," 
 
 " Water agreements.") 
 Control of waters and water- 
 courses — Governmental : 
 
 Roman 42 
 
 France 55, 62, 67, 75, 108, 116 
 
 Italy - 191, 222 
 
 Spain -..-481-483, 534, 575, 589 
 
 Provincial and Departmental : 
 Roman '. 42 
 
614 
 
 INDEX. 
 
 France - 108-109 
 
 Italy- 222 
 
 Spain 482 
 
 Municipal and Communal: 
 
 Italy.- - 222 
 
 Spain ....366-371, 372, 373, 416, 482 
 Community or Association: 
 
 Italy -- 223 
 
 Spain 366, 393-395, 409, 430 
 
 Private : 
 
 California- 7 
 
 Roman- 45 
 
 France -..56, 106-107, 127, 130 
 
 Italy - 197, 222 
 
 Spain .374-381, 407, 442-447, 552-555 
 Control of irrigation enterprise- 
 Governmental : 
 
 France-- - 79, 116, 156-160 
 
 Italy 215-219,335, 347 
 
 Spain 459, 490, 508, 516, 593 
 
 Provincial : 
 
 France 79 
 
 Spain -- 517 
 
 (See "Administration," "Regu- 
 lation.") 
 Cooperation. (See "Community of 
 interest," " Compulsion.") 
 
 Consejo de hombres buenos 418 
 
 Courts — Jurisdiction, etc. 
 
 101, 103, 107, 530, 540, 594 
 
 Cost of — irrigation 
 
 -.-89, 146, 169, 171, 174, 175, 176, 523 
 
 of water -- 89, 171, 174, 175, 523 
 
 of works -. 146, 
 
 168, 173, 176, 177, 178, 339, 523, 562 
 
 Culture of rice— Regulated 277-282 
 
 Cummin — " Manual of Civil Law". 48 
 
 Custom defined .- 363 
 
 Customs — Ancient Moorish 
 
 --- 360,384,432,488 
 
 California water-right 5 
 
 Growth of— Spain -.. -362-365 
 
 Irrigation — Spain 383-432 
 
 Irrigation — Italy - . - 184 
 
 D 
 
 Dalloz— " Treatise, Jurisprudence " 
 
 --..7.S, 607 
 
 On communal property 368-370 
 
 On ownership of springs 129 
 
 On riparian right of irrigation.. 105 
 On use of spring waters 130-132 
 
 Dams 90,92,109,112, 
 
 114, 140, 208, 215, 224, 225, 229, 385, 
 464, 466, 473, 513, 544, 569, 574, .580 
 (See "Reservoirs," "Authoriza- 
 tions," "Works.") 
 
 Day and night water 255 
 
 DeBuffon — " Course of Agricult- 
 ural Hydraulics" 73, 607 
 
 "Agricultural HydrauUcs"..206, 607 
 
 On right of way 288, 291, 310 
 
 On guarding streams -. - 71 
 
 On distribution and measure- 
 ment - 247 
 
 On necessity for regulations. 116-118 
 
 On regulation of springs 202 
 
 Debauve — "Waters, etc.. Agricult- 
 ure"---- .\-..73, 607 
 
 "Waters, etc.. Transportation" 
 
 -.73, 607 
 
 DeForesta— Signor A 239, 606 
 
 DePassy — " Treatise, Hydraulic 
 
 Service" - -73, 607 
 
 On ownership of springs - 129 
 
 On riparian right of irrigation. . 108 
 On necessity for guarding waters. 94 
 DePassa, Jaubert — On Tribunal of 
 
 waters 398 
 
 DeToreno— E. El Conde - 605 
 
 Debris complication in California. 9-10 
 
 Diritto d'acquedotto 285 
 
 Diritto d'insisteuza 259 
 
 Distribution, division, and meas- 
 urement of waters... 
 
 120-124, 240-257, 265, 385,391, 
 
 402, 408, 415, 425, 463, 545-548, 576 
 
 Diversion of waters J 
 
 43-44, 46, 56, 80, 102, 117, 
 
 120-124, 191-197, 208-220, 224-228, 
 372, 461, 464, 467, 540, 553, 575, 581 
 Divi-sion of estates. (See "Servi- 
 tude.") 
 Dominion. (See "Control," "Prop- 
 erty.") 
 
 Drainage— Agricultural 
 
 268-283,305,317, 562 
 
 Legal principles of -.272-274 
 
 Necessity for 272, 278-283 
 
 Troubles in Italy..- 271 
 
 Waters 193, 305, 317, 547, 562, 564 
 
 (See "Arterial drainage," "Servi- 
 tude," "Right-of-way," "Marsh- 
 es.") 
 
INDEX. 
 
 616 
 
 Dumont—" Water-courses " 73, 607 
 
 On ownership of springs 127 
 
 On rights to subterranean wa- 
 ters ._ __ 133 
 
 On servitude of right-of-way 139 
 
 On use of spring waters 129-132 
 
 Duty of water 172, 176, 169, 523 
 
 Eails, James B 608 
 
 Edict of Moulines _._ 54 
 
 " Effects of Irrigation"— Marsh. 283, 607 
 
 Effects of irrigation 275-282, -313 
 
 Elche— District of --110-413, 509 
 
 Embankments ai^d levees 561 
 
 Encouragement of irrigation — 
 
 France 157-178 
 
 Italy 333, 317-348 
 
 Spain 373,583,584, 511,514 
 
 Engineer advocates 252 
 
 Engineers — CivU — 
 
 France .66-68,80,90,112 
 
 Italy. 221,242 
 
 Spain 481 
 
 Hydraulic 242,252 
 
 Engineering Department, Cal 9-10 
 
 Engineers — Corps of — 
 
 France 65 
 
 Italy 222 
 
 Spain 481 
 
 Engineering — Hydraulic — Science 
 
 of 240-242 
 
 Enterprise. (See "Irrigation.") 
 
 Erosion 529,538,559 
 
 Escriche — ''Dictionary of Juris- 
 prudence" 362, 382, 607 
 
 On rivers, streams, springs.. 371-382 
 
 Espartero, General 488 
 
 Excavations — Kight to make 
 
 .— .528,537,556 
 
 Exemptions. (See "Capital," "Lands.") 
 
 Experience — Teachings of — . 275 
 
 Experting — Water, etc 
 
 65-68, 80-82, 139, 141, 204, 240-242. 
 251-252, 276, 405, 418, 466, 515-516 
 (See "Water Courts.") 
 Expropriation — of private lands.. 
 
 135-137, 153, 307-310, 
 
 474-478, 555, 574, 678, 579, 584, 587 
 
 of water rights 377,477, 582 
 
 (See"PubUcUtiUty.") 
 Evulsion - 529,538,559 
 
 Farming out irrigation revenues. 320 
 
 Fava, Baron 239,606 
 
 Ferries, public streams 586 
 
 Feudal system - 54,186,366 
 
 Fish ponds and hatcheries 573, 588 
 
 Fishing in public waters 571-573 
 
 FloatabUity ( raf tability ) 
 
 - .55-56, 78, 100-101, 190, 
 
 225, 527, 530, 540, 573-575, 586-587 
 
 Flotation in pubUc waters 573-575 
 
 Floating property 560 
 
 Flood studies. (See "Hydrolog- 
 
 ical," etc.) 
 FontanUi. (See "Springs.") 
 Foreign capital protected. (See 
 "Capital." 
 
 Foresting communities 562 
 
 Forfeiture of water-rights 
 
 554-555,575,583 
 
 (See "Concessions — terms of.") 
 Formalities. (See "Applications." 
 
 France, area 63 
 
 Agriculture 
 
 51, 59, 145, 156, 159, 164, 530 
 
 Communes, departments, etc 63 
 
 Climate and rainfall 143-144, 356 
 
 Government 63 
 
 Irrigation, character 
 
 ....51,59,107,143-145 
 
 Irrigation development 52 
 
 Irrigation districts 51 
 
 Irrigation enterprise 52, 143-147 
 
 Irrigation investigation 163-165 
 
 Irrigation policy 155-178 
 
 Irrigation promotion .52, 155, 165-178 
 Irrigation works (notable) ..165-178 
 Politics and people... 51, 144-146, 155 
 
 Property holdings in 144 
 
 Public domain of 156 
 
 Property rights in 53 
 
 Rivers and waters of 76, 90, 190 
 
 Frelinghuysen , Hon . F. T 606 
 
 G 
 
 Gains — "Commentaries, Eoman 
 
 Law" 48 
 
 On common property — waters. 38, 41 
 On private property — brooks.. 39, 41 
 On public property — rivers 39, 41 
 
 Galdi— Italian Civil Code 239, 607 
 
616 
 
 INDEX. 
 
 General Association of Irrig. West 
 
 of the Sesia 319,328 
 
 General syndicate. (See "Syndi- 
 cate General.") 
 General water company of France 
 
 - 168,174 
 
 Giovanetti— On ownership of wa- 
 ters, Italy 187 
 
 On distribution and measure- 
 ment 247 
 
 On regulation of springs 204 
 
 Godfrey, Hon. J. T.... 382 
 
 Goudsmit — " Treatise on the Pan- 
 dects"... 48 
 
 On common property 38,4] 
 
 Government. (See " France," " It- 
 aly," "Spain.") 
 Governmental. (See "Administra- 
 tion," "Regulation," "Control.") 
 Governmental aid and encourage- 
 ment to irrigation construc- 
 tion—France 15&-178 
 
 Italy ..330-333,347-351 
 
 Spain ...508, 523, 583-584 
 
 Governmental encouragement of 
 irrigation practice — France. 157-164 
 
 Italy .348-351 
 
 Spain .511-519 
 
 Governmental construction of irri- 
 gation works — 
 
 France 155-157, 177-179 
 
 Italy 347 
 
 Spain 508-523 
 
 (See "Advances," "Capital," 
 "Lands," "Subsidies," "Prize • 
 Competitions," " Irrigation in- 
 vestigations," "Public works.") 
 
 Granada — District, etc 430-432 
 
 Moorish irrigation in 488 
 
 Grantees. (See " Concessions.") 
 Guarantees. (See " Capital.") 
 Guards. (See "River-guards.") 
 
 H 
 
 Hall, Hon. J. Buchanan 19, 605 
 
 Hallam — "History of Europe," 
 
 etc 206,607 
 
 Head of water 45 
 
 Headworks 45, 93, HI, 113, 119-121, 
 
 215-216, 229-231, 385, 463-465, 569, 581 
 Huerta 383,410,421,416 
 
 Hunter — " Roman Law as a Code " 48 
 
 Hydraulic science and practice. . . 240 
 
 Hydraulic service — 
 
 France 90, 109 
 
 Italy 242 
 
 Spain 482 
 
 Hydrological studies — 
 
 France 75, 164 
 
 Italy 219,350 
 
 Spain 516, 562, 585 
 
 Improvement — River. (See " Riv- 
 er.") 
 Indemnity— (See " Public Utility.") 
 Industrial establishments. (See 
 
 " Regulation.") 
 Inundations. (See "Arterial Drain- 
 age," " Compensation.") 
 
 Irrigation development --. 
 
 5, 15-19, 51, 184, 508-515 
 
 Enterprise 5, 52, 78, 143-147, 157, 
 
 165-178, 333-351, 347,373, 508-524, 583 
 
 Effects and province of... 
 
 51, 52, 146, 254, 283, 313 
 
 Investigations 
 
 9-14,163-164, 350,463, 515-516 
 
 Literature 18 
 
 Policy. (See "Cal.," "France," 
 
 "Italy," -"Spain.") 
 Problems and conflicts. (See 
 "Conflicts.") 
 
 Projects— Examined 584 
 
 (See "Administration," "Asso- 
 ciations," " Communities," 
 "Companies," "Concessions," 
 "Cost," "Customs," "Regu- 
 lation," " Water Courts," 
 "Works.") 
 Irrigators— Rights and obligations 
 
 of 87, 258, 263-267, 540, 548 
 
 Italy— Agriculture 
 
 183, 260, 313, 348-351, 540 
 
 Communes and departments 222 
 
 Climate and rainfall 184, 357 
 
 Government. 220 
 
 Irrigation— Character 277 
 
 Development .184, 241, 336-338 
 
 Districts 183,338 
 
 Enterprise 338-340 
 
 Policy 312,334,347 
 
INDEX. 
 
 617 
 
 Promotion 328-333,347 
 
 Investigation __ _, 350 
 
 Works, notable 184, 334, 336-337 
 
 People of 313-314 
 
 Property holdings in 313 
 
 Public domain of- 190 
 
 Property rights in - . . 185-187 
 
 Rivers of 183,190,241,312 
 
 Islands— Ownership of 529, 538, 560 
 
 J 
 
 Joint board of syndics - 393 
 
 Jucar— District, etc 399-402, 509 
 
 Jurisdiction of courts in irrigation. 594 
 Juries of irrigation. (8ee " Water 
 
 Courts.") 
 Justinian — "Digest or Pandects". 48 
 
 On common property 38-41 
 
 On private waters 46 
 
 On diversion of waters 44 
 
 On control of rivers 42 
 
 On works in rivers 42 
 
 On use of spring waters _. 45 
 
 L 
 
 Lakes 443, 444, 555, 559 
 
 Land — holdings. (See " France," 
 ■■' Italy," " Spain.") 
 and water-rights. (See " Water 
 holdings.") 
 
 valuations -5, 146 
 
 plats _ - 502 
 
 Lands newly irrigated. (See"Ta3i:- 
 
 ation.") 
 Leases of waters. (See "Water 
 
 agreements." 
 Les Annales des Fonts et Chaus- 
 
 se6s 73,607 
 
 Liberal government 485 
 
 Litigation. (See " Conflicts, etc.") 
 
 Llaurado, D. Andreas 605 
 
 "Waters and Irrigation in Spain" 
 
 .- 413,607 
 
 " On State aid to Irrigation ".524, 607 
 Loans. (See "Advances.") 
 
 Locks — Navigation ,__ 574 
 
 Lombardy - 184 
 
 Lorca— District, etc. _ 421-428, 510 
 
 Lozoya Dam _ 513 
 
 M 
 
 Mackenzie— "Studies in Roman 
 Law" - 48 
 
 Maintenance of works 
 
 ---43, 94, 217, 264, 271-274, 317, 390, 
 419, 429, 471, 502, 539, 543, 547, 583 
 
 Manufactories 572, 599 
 
 Maps— S. E. Department, Cal 607 
 
 Margins of streams _.. 558 
 
 Marsh, Hon. George P __19, 605 
 
 "Irrigation: its evils and com- 
 pensations" 283-607 
 
 On effects of irrigation 313 
 
 Letters, etc __ 239 
 
 Marshes 555,559,562 
 
 Martin—" Statesman's Yearbook," 
 
 - --- 507,607 
 
 Measurement. (See " Distribu- 
 tion," "Module.") 
 
 M€lino,M. T.J _.. 606 
 
 Memoria sobre las Obras Publicas. 
 
 468, 607 
 
 Merovingian system 54 
 
 Mill rights.- __ __38,371,582 
 
 Mineral waters ___ 555 
 
 Minister of Public Works 
 
 63, 219-220, 5R1, 562, 585, 593 
 
 Minister of Agriculture 161, 221 
 
 Minister of Finance 234 
 
 Model ordinance 596-603 
 
 Moderado party. __ 486 
 
 Module 245-246,326,545 
 
 MoncrieflF—" Irrigation in South- 
 ern Europe" 154, 607 
 
 On administration in Granada.. 431 
 
 On Valencian Water-court 397 
 
 Marcite fields 254 
 
 Monopoly of water.. 
 
 .-..463,540,554,575,580 
 
 Moorish customs 
 
 363-365, 395-398, 430-432, 488 
 
 . irrigations and works... 357, 385, 508 
 
 property rights 365 
 
 Motive-power — Rights to 590 
 
 Municipal control of streams, etc. - 
 
 373, 392, 400, 412, 415, 
 
 416, 422, 460, 510, 552, 555, 572, 578 
 
 Murviedro— District, etc 403-408 
 
 Murcia — District, etc. - 414 
 
 40' 
 
618 
 
 INDEX. 
 
 N 
 
 Navigability 55, 78, 
 
 190, 224, 372, 559, 562, 571, 573, 585 
 
 Navigation 372, 561, 585,587 
 
 Narvaez, Gen 488 
 
 Night water 255 
 
 Nonuser- 533,554,549 
 
 Novisima Recopilacion 382, 607 
 
 Old systems not disturbed 492 
 
 Openings— old— not disturbed 545 
 
 Ordinance — Community — 
 
 Model 493, 498, 592, 589, 596 
 
 Organization — Local 147-153, 
 
 312-333, 383-432, 483-507, 589-592, 596 
 
 Necessity for 
 
 148, 312-314, 320, 335, 485 
 
 Ortolan — " Institutes of Justinian" 48 
 
 On diversion of waters --- 44 
 
 On control of rivers 42 
 
 Ownership. (See " Property right.") 
 
 Pardo," Legislation of Waters ".468, 607 
 
 Peiroleri, Hon. A - -- 239 
 
 Penalties-- -97, 193-197, 
 
 224-229, 233, 236, 264, 278, 282, 387, 
 
 390-392, 402, 403, 503, 574, 592, '600 
 
 Phylloxera, flooding for 52, 155 
 
 Pidaly Mon, Seflor A 605 
 
 Piedmont 184 
 
 Plantations, defensive 561 
 
 Po, valley of the-- 183 
 
 Police - --67-73, 
 
 96, 110, 124-128, 191-197, 223-233, 589 
 Policy. (See, " California," 
 
 "Prance," "Italy," "Spain.") 
 Politics. (See "France," "Italy," 
 
 "Spain.") 
 
 Pollution of waters- 588 
 
 Ponds -443-444,555,559 
 
 Populations— Use of waters by 578 
 
 Premiums— Irrigation - 518-521 
 
 Prescription 45, 130-132, 376-381, 
 
 530, 533, 540, 546, 549, 554, 575, 580 
 Principle. (See " Cooperation," 
 
 "Compulsion," "Association.") 
 
 Prior rights 
 
 ..214, 215, 372, 373, 466, 460, 544, 553, 
 554, 556, 580, 582, 575, 576, 590, 595 
 
 Priority of privilege ...t 265, 448 
 
 Private property. (See " Property," 
 
 "Enterprise," '-Works.") 
 Private waters. (See " Springs.") 
 Prize competition— Irrigation. 160, 348 
 
 Progresista party- 486 
 
 Projects — Examination of 
 
 - 81,518-521,584 
 
 Property- 37, 366, 527-528, 535-538 
 
 (See "Common," "Communal," 
 " Community," " Municipal," 
 "Pueblo," "Servitudes," "Pub- 
 lic Domain.") 
 Property rights. (See "France," 
 
 " Italy," " Spain.") 
 Property right in waters and 
 water-courses — 
 
 Eain waters 381, 442, 552 
 
 Spring waters- -45-46, 127-129, 197- 
 204, 368, 376, 442, 530, 540, 532-535 
 
 Subterranean waters 
 
 -.443, 455-457,537,556 
 
 Standing waters 443, 555 
 
 Running waters .38, 41, 46, 57, 
 
 101, 190, 368, 872, 374, 407, 442, 552 
 
 Sewer waters-- 443, 554 
 
 Mineral waters- 555 
 
 Rivers-.- ...39,41,55, 
 
 188-191, 371, 442-444, 527, 536, 553 
 
 Streams 39, 41, 56, 101, 188- 
 
 191, 388, 371, 374, 407, 442^44, 553 
 
 Beds and Banks 
 
 40, 41, 103, 443, 444, 449, 558 
 
 Lakes and Marshes. 
 
 - --.443, 444, 555, 559 
 
 Alluvion- 40, 529, 537, 559 
 
 Water found on sites of public 
 
 works 554 
 
 Drainage waters 272 
 
 Property holdings. (See " France," 
 "Italy," "Spain.") 
 
 Protection — of banks -_. 561 
 
 of capital 578 
 
 of navigation 561 
 
 of prior rights. (See " Prior 
 rights.") 
 Public domain. .54, 55, 156, 190, 536, 552 
 (See " River," " Property.") 
 
INDEX. 
 
 619 
 
 Public— lands 536,556 
 
 necessity 562 
 
 streams. (See. "River," "Navi- 
 gability," ".Floatability.") 
 
 use _ 309,572-588 
 
 utility 135, 307-311, 47-1-478, 536, 
 
 555, 565, 574, 577, 580-582, 584, 587 
 
 waters 43, 56, 75, 78, 188-191, 219, 
 
 231, 453, 463, 552-554, 561, ,'572-588 
 
 (See " Rivers," " Navigability," 
 " Floatability.") 
 
 works 6,66,155-157, 
 
 177-179, 307, 347, 474, 508-523, 554, 574 
 
 works bureau .64-65, 219, 481 
 
 Pueblo— property rights _ _ _ 366 
 
 water rights 370 
 
 Pumpingwater _ 581 
 
 B 
 
 Rainfall. (See "Cal.," "France," 
 "Italy," "Spain.") 
 
 Rain waters. (See " Waters.") 
 
 Rates. (See " Water rates.") 
 
 Keclus — " Earth and Inhabitants " 
 _ -.73,607 
 
 Reclamation 562 
 
 (See "Compulsion.") 
 
 Regidore syndics 392 
 
 Regulation of waters and water- 
 courses. (See "Regulation of 
 works," etc., "Administration," 
 "Authorizations," " Control.") 
 
 Regulation of works — River-works, 
 
 dams, and headworks 
 
 42, 75, 92, 93, 106, 110, 113, 115, 124, 
 125, 211, 216, 221, 224-231, 371, 463, 
 465, 482, 561, 574, 580, 581, 586, 593 
 Irrigation and drainage works. _ 
 
 10:i, 216, 236-238, 268- 
 
 271, 274, 282, 299, 501, 543, 544, 593 
 Excavations, borings, and spring 
 
 openings 
 
 201-204, 268-271, 541, 555-557 
 
 Industrial works 
 
 92, 93, 371, 465, 580, 586, 588 
 
 Regulation of irrigation and drain- 
 age. .121-124, 274, 277, 282, 387, 395, 
 405, 408, 409, 410, 412, 415, 424, 463, 
 498-506, 530, 534, 540, 589, 593, 596 
 Of navigation and flotation... 68, 574 
 Ofprivateproperties, .,,,,,-,,, 262 
 
 Development of 58, 433-441 
 
 Necessity for ..115-117 
 
 Principles of 119 
 
 (See " Rivers," " Streams," 
 
 " Control," " Administration.") 
 
 Rents 97 
 
 (See "Water rents.") 
 Reports— S.E. Department. .12-19, 607 
 
 Reservoirs — Alicante 
 
 407,509; Almansa,428, 
 
 509; Aranjuez,509; Elche, 509; 
 Lorca, 422, 510 ; other, Spanish, 523 
 
 Revenues — Farming out 320 
 
 Rice culture 277-282 
 
 Richards — Code Napoleon (trans.) 
 
 73,607 
 
 Right-of-way for waters.46-48, 135-141, 
 284-310, 469-478, 541-544, 565-569 
 (See "Servitudes," "Public Util- 
 ity," "Expropriation.") 
 Right of drainage. (See "Servi- 
 tudes.") 
 Of taking waters. (See "Servi- 
 tudes.") 
 To drainage waters. (See " Wa- 
 ter-rights.") 
 To surplus waters. (See "Water- 
 rights.") 
 Of diversion. (See " Diversion.") 
 Rights of bank owners. (See " Ri- 
 parian rights.") 
 Of source owners. (See " Springs.") 
 
 Of irrigators 258-262, 540, 548 
 
 Riparian right— 
 
 On banks — works . 
 
 . - .224, 229-233, 371, 585-586 
 
 To channels.. 56-58, 100-103, 558-559 
 
 To water. 46, 
 
 105-107, 205, 371, 373, 374-376, 44&- 
 453, 465, 530, 540, 553, 554, 580, 581 
 
 Conflicts — California 6-7 
 
 France.. 54-58, 100-103, 146 
 
 Nature of— France 105-107 
 
 Italy 205-206 
 
 Spain. 382, 448 
 
 India 206 
 
 (See " Conflicts.") 
 Riparian — lands — 
 (See "Servitudes.") 
 
 Owners — obligations of 
 
 125, 224, 229-233, 572 
 
 (See " Channels— clearance of," 
 
620 
 
 INDEX. 
 
 Eiver 3&-40, 43, 78, 190, 204, 371 
 
 Improvement 
 
 77-78, 90-92, 229-233, 561, 574 
 
 Guards 69-71,125 
 
 Maintenance. (See " Channels," 
 "Clearance.") 
 
 Regime— Study of 
 
 - 77, 350, 371, 463, 562, 585 
 
 Regulations . . _ - - 
 
 92, 124, 191, 194, 210-213, 224-229, 561 
 
 Pollution -.-- 588 
 
 (See "Dams," "Arterial drain- 
 age," " Banks," " Channels," 
 " Control," " Property," " Reg- 
 ulation," " Stream," " Tor- 
 rent," " Works," " Navigabil- 
 ity," " FloatabUity.") 
 
 Rivers— N otable Prance, 76, 90 ; 
 
 Italy, 190, 204; Spain, 365-367, 523 
 Rockwell, " Spanish and Mexican 
 
 Law"---- --382,607 
 
 Rouuai law, etc 
 
 35-48, 53-54, 185-186, 359, 363-369, 508 
 
 Sanitary drainage of lands. (See 
 " Drainage — Agricultural.") 
 
 Sargent — Hon. A. A 603 
 
 Schedule, water-rights 219 
 
 Schedule, public waters - - 219 
 
 Sclopis — On distribution, etc - 248 
 
 Selling water 421,426-428 
 
 Servitude 530,539,564 
 
 of abutment 140, 473, 554, 569 
 
 of aquedirct (right of way) 
 
 .-.-47, 138, 289-307, 470-473, 541, 565 
 of distance (intermediate be- 
 tween works) . - 1 270, 541 
 
 of diversion (utilization of wa- 
 ters).. - 46, 58, 102-106, 129-130, 
 
 204-203, 373, 374-381, 530, 540, 545, 547 
 of drawing waters and of water- 
 ing place 48, 130, 532, 545, 570 
 
 of drainage (or water-course)... 
 
 133, 273-274, 530, 539, 547, 565, 655 
 of tow-path, and others on ripa- 
 rian lands. 531,539,570, 586 
 
 Servitudes— resulting from the sit- 
 uations of places 530, 539, 564 
 
 established bylaw 531, 539, 565 
 
 established by acts of men 
 
 531,539,544 
 
 by agreement or title ... . 130, 532, 546 
 
 by dividing estates .132, 532, 546 
 
 by prescription- --- 
 
 ' 131, 530, 532, 540, 546, 553 
 
 Evidence of - .377-381, 547 
 
 Exercise of 547 
 
 Extinguishment of 533, 549 
 
 Sismondi — " History, Italian Re- 
 publics" --.203, 609 
 
 Smith— "Italian Irrigation"-.. 206, 609 
 
 On exchange of water turns 257 
 
 On governmental policy 209 
 
 On influence of warping.- 306 
 
 On necessity for drainage 272 
 
 On necessities of irrigation L 259 
 
 On revival of hydraulic science- 241 
 
 On riparian rights - 208 
 
 On use of .spare waters 262 
 
 Spain — Area, provinces, pueblos -- 
 
 -.356, 479, 480 
 
 Agriculture 355, 357, 572 
 
 Climate and rainfall, etc 355, 356 
 
 G overnment - _ -435, 479 
 
 Irrigation character, etc. 355, 3li3 
 
 Irrigation development- -364, 50S, 514 
 Irrigation districts- -357-358, 383-432 
 
 Irrigation enterprise - ,490, 522 
 
 Irrigation investigation 515, 585 
 
 Irrigation policy 
 
 - - -433-440, 459, 483-486, 490, 516-520 
 
 Irrigation promotion 513-521 
 
 Irrigation works (notable) ■.- 
 
 357, 508-514,523 
 
 Politics and peoiile in 486 
 
 Property holdings in 384 
 
 Property rights in 365-370 
 
 Public domain— Waters 552-553 
 
 Rivers and topography 356 
 
 Springs— Property right in 46, 127- 
 
 129, 197-204, 376, 442, 530, 537, 553 
 Rights of owners of 
 
 -46, 129, 376, 445, 530, 540, 553 
 
 Opening new 133-131, 200-204, 541 
 
 Notable 197-198 
 
 Spring waters— Acquired rights 
 
 to 46, 129-132, 197-199, 377, 555 
 
 Loss of rights to 46, 129, 377, 555 
 
 Public use of 45 129 
 
INDEX. 
 
 621 
 
 State aid to irrigation. (See "Gov- 
 ernmental.'') 
 
 State action in California 5-12 
 
 State engineeringoffice. Call tornia-9-12 
 State policy— (See "California," 
 "France," "Italy," "Spain.") 
 
 Storage of water. 552, 580 
 
 (See "Reservoirs.") 
 
 Streams — Not floatjible 
 
 — — - 39-41, 56, 100, 190, -HI 
 
 Imjirovement. (See "River im- 
 provement,') 
 
 Guarding of tvS 98, 124-125, 5S9 
 
 Maintenance of ..96, 125, 231-233, 580 
 Regime — Study of. (See "River 
 
 regime.") 
 Regulations. (See River 'regu- 
 lations.") 
 (See "Riparian rights," "River," 
 "Navigability," "FloatabUity.") 
 
 Sub.<idie:< 157, 159-160, Kio- 
 
 178, 331-333, 317-351, 508-523, 583 
 Subterranean — (See " Waters," 
 
 "AVorks," "Regulation." 
 Surveys. (See " Hydrological stu- 
 dies, " "Formalities.") 
 
 Syndicate 150-153, 
 
 3S8, 124, 494, ai2-503, oS!1, 591, (02 
 
 Syndicate-general 393, 505, 592 
 
 System — Necessity for... ___ 500 
 
 Taxation — Community — For irri- 
 gation 
 
 401, 404, 4U, 418, 424, 429, 501, 522 
 Governmental : 
 
 On capital and works 
 
 166-178, 512,518, 504, 583 
 
 On lands occupied by works.. 547 
 On lands newly irrigated^ 
 
 etc 1.57-158,166- 
 
 167, 510, 512, 514, 518, 504, 583, 584 
 
 Termino— Pueblo 3(58 
 
 Tompkins — " Gaius' Commenta- 
 ries, etc." 48 
 
 Torrents 
 
 ..1851, 190, 204, 210, 213, 371, 381, 536 
 
 Town drainage waters 554 
 
 Tribunals of water 322, 3.<)5, 
 
 405, 412, 418, 424, 504, 592, 603, 554 
 
 Turns — Exchange of 257, 546 
 
 L'rgenoy — Cases of 
 
 Use. (See "Waters," 
 "Water.") 
 
 V 
 
 577 
 
 " Public," 
 
 Valley of the Po 193 
 
 Valencia— District, etc 383-398 
 
 Vaucluse — District, etc 51 
 
 Vega of Granada 450 
 
 Vosges — District, etc 51 
 
 w 
 
 WaUis, "Institutions, etc., of 
 
 Sjiain" lijS, 007 
 
 Warping. (See "Colmataije.") 
 
 Water — Agreements 
 
 .- -82-89, 243, 251, 255, 258, 2(30, 2(!3- 
 2iiU, 323-327, 340-347, 545-546, 576 
 
 Claims 219,460, 403, 575-576 
 
 Conservation of ..463, 561 
 
 (See "Hydrological studies," 
 "Storage," "Distribution," 
 "Control," "Police," "Right- 
 of-way.") 
 Cost of. (See " Cost of water.") 
 Course. (See "River," "Stream," 
 "Torrent.") 
 
 Court ..32-2, 
 
 395, 405, 412. 418, 424, 504, 592, 603 
 Duty of. (See "Duty of water.") 
 Grants. (See "Concessions," 
 
 "Water-rights.") 
 Holdings, appurtenant to land. 
 
 387, 403, 407, 415, 429-430 
 
 Holdings, separate property 
 
 407,410,421.425,430 
 
 Laws Roman, 
 
 37-46; French, 53-178; Italian, 185- 
 351 ; Spanish, 350-,a2. ( See "Codes.") 
 
 Meadows.... 254 
 
 Monopoly of 260-262, 540 
 
 Power.9(), 97-90, 218, 326, 372, 461, 587 
 
 Rates, company 
 
 89, 169, 171-172, 174-175,326, 584 
 
 Rents, governmental.. 97-99, 218, 236 
 
 SeUingof .313,421,426-428 
 
 Source. (See "Spring.") 
 Supply.. 75, KVt, 219, 258, 263-267, 350, 
 463, 466, 515, 548, 554, 562, 582, 585, 590 
 
622 
 
 INDEX. 
 
 Use of 45, 59, 74, 164, 219,263- 
 
 267, 332, 350, 453, 520, 548, 572-588 
 Waste of... 164, 463, 540, 554, 575, 585 
 Water-rights : 
 
 Roman ; Source owner _._ 45 
 
 Servitude — Elparian 46 
 
 Servitude — Prescription 45-46 
 
 Grant 44 
 
 France; Source owner.. 127 
 
 Servitxide — Riparian 
 
 58, 100-108, 530 
 
 Servitude — Prescription, agree- 
 ment, etc 129-130, 531-533 
 
 Grant - 74,79-82 
 
 Italy; Source owner 199 
 
 Servitude— Riparian... 204-206, 540 
 Servitude — Prescription, agree- 
 ment, etc. - 200, 544-547 
 
 Grant --- -.207-220 
 
 Spain ; Source owner 
 
 -.374,376,381,445, 553 
 
 Servitude— Riparian 373-374 
 
 Servitude — Prescription, etc. . 
 
 .... 370, 377, 381, 553 (8), 575 (149) 
 According to law— Riparian.. 
 
 - 446-451, 553 
 
 According to law — Discovery- 
 
 455-459, 556 
 
 Grant - - 459-465, 575-588 
 
 Waters classified 441 
 
 (See "Drainage," "River," 
 "Stream," "Spring," "Torrent," 
 "Property," "Public waters.") 
 Weirs. (See " Dam.") 
 WeUs— Ordinary- -133, 201-204, 453, 556 
 
 Artesian 183, 454, 537, 555-557 
 
 White — "New Collection, Spanish 
 
 laws" - -.- -.382, 607 
 
 On old Spanish laws - 361 
 
 Winter irrigation 254 
 
 Winter waters 564 
 
 Works — River works, dams, head- 
 works.. 42, 65, 76, 79, 90, 95, 109, 113, 
 149, 217, 221, 225, 231, 460, 465, 561 
 
 Irrigation, and drainage, and 
 
 reclamation — 
 
 .. 65, 79, 82, 91, 95, 109, 114, 149, 158, 
 165-178, 221, 234, 272, 276, 272, 315, 
 334-337, 373, 384, 400, 407, 423, 431, 
 460, 465, 508-513, 517, 523, 573, 580 
 
 Industrial works -- 
 
 91,95,109,125,149,465 
 
 Private... 45, 79, 91, 104, 138, 157, 290, 
 335-334, 373, 400, 465, 469, 517, 520 
 
 Company 
 
 82, 138, 157, 166, 168, 170, 172, 
 
 174, 177, 335-346, 373, 465, 517, 521 
 
 Public 135,221,307, 
 
 323, 331, 347, 474, 481, 508, 515, 517 
 
 Public, governmental-64, 76, 177-178, 
 221, 229, 234, 423, 50^-513, 517, 562 
 
 Public, provincial or depart- 
 mental 229, 517, 562 
 
 Public, municipal 157,373, 
 
 392, 400, 410, 416, 508-513, 517, 562 
 
 Public, community- 
 
 79, 91, 149, 157, 166, 167, 173, 
 
 176, 229, 315, 323, 332, 373, 384, 407, 
 
 416, 465, 501, 508-513, 517, 520, 598 
 
 Works— Plans for -ia-14,216, 501 
 
 (See "Applications.") 
 
 Construction o£-43, 77, 82,92, 111-114, 
 124, 149, 165-178, 217, 221, 225, 229, 
 270-271, 315, 373, 317, 336, 401, 407, 
 465, 502, 508-513, 517, 539, 581, 543 
 
 Maintenance of 43, 94, 149, 
 
 217, 221, 229, 234, 263, 270, 274, 317, 
 390, 419, 471, 502, 547, 539, 583, 513 
 
 (See •' Regulation," " Canals," 
 " Reservoirs," "Dams," "Head- 
 works.")