the Mississippi river. Under this principle the application of water to a beneficial use is regarded as a public use; it generally carries with it rights of eminent domain. Priority in time of appropriation gives the better right, not only to use the waters of the source, but as to the amount of water which may be taken in time of scarcity, and beneficial use is "the basis, the measure, and the limit of the right" in point of time, the rights to water not promptly put to beneficial use or use of which is abandoned reverting to the state and becoming subject to a new appropriation.

The principle that "the first in time shall be the first in right" is subject to certain modifications as where limited stream flow is distributed among water right holders by state agents, and in those states which have established preferred classes of use. In such cases domestic use, including municipal water supply, being in the highest preference class, diversion of water for municipal and domestic purposes may be allowed at the expense of an earlier appropriation for an inferior use, subject to due compensation; or domestic and municipal use may be given statutory preference as to quantity in time of scarcity.

The doctrine of riparian rights has been recognized in the Pacific states and in Nebraska and Texas, concurrently with the doctrine of appropriation, with which it is hopelessly inconsistent. The tendency of legislation and court decisions in these states has generally been to sharply limit riparian rights. In California, however, this doctrine was held by the State Supreme Court to be superior to appropriative claims. Legislation which would forfeit unused riparian rights is now under court review.

Group 1a. Appropriation under administrative control. Gradually, over a period of 35 years, most of the western states have developed comprehensive water codes, placing control of the appropriation and use of their waters in the hands of an administrative officer or board, for the purpose of removing, so far as possible, the causes of litigation and promoting the most complete and effective utilization of the water resources of the state. This officer or board generally supervises design and construction of dams, etc., has important functions in the determination and recordation of water rights, and has general administrative supervision over the utilization and distribution of the waters of the streams. Rules of procedure governing the filing of applications and the subsequent steps in perfecting a water right may be had from the administrative authority in each state.

This administration has been highly successful in determining water rights and in obviating litigation. It is reported to be generally effective with

respect to municipal supplies except that, in several states, notably at Sacramento, California,2 contamination by return water from irrigation is becoming serious.

Group 1b. Appropriation not under administrative control. In the remaining states of the western group a water right is generally acquired by merely filing a notice of appropriation. In Montana, if the stream has not been adjudicated, it is merely necessary to file a notice with the county clerk and recorder; if the stream has been adjudicated a supplemental decree of the court is required. In Colorado filing is made in the State Engineer's office, but the water officials are not required to turn any of the waters of the public streams to such appropriator until his rights have been decreed by the court. In respect to the appropriation the State Engineer's office acts merely as an office of record; in respect to the administration of streams it performs most of the functions of the administrative authority as described for the preceding group.

Group 2. Riparian rights the fundamental doctrine. The commonlaw doctrine of riparian rights, as opposed to the principle of prior appropriation of natural waters, prevails in 30 of the 31 states bordering on or east of the Mississippi river. The exception is Louisiana which recognized neither principle (see table). In the states of Group 2 statutory preference in favor of water supply is generally limited to legislation prohibiting the pollution of waters used for domestic or municipal supply and to that giving the state boards of health control over the disposal of sewage and industrial wastes and over the sanitary quality of public water supplies. In a few states, notably West Virginia, the limited control over coal mine, oil well, or other industrial drainage may make certain streams unsuitable for public water supply.

Group 2a. Right to develop water supply granted by an administrative body. Of the eastern group of states, New York, New Jersey and Pennsylvania, now3 exercise control, directly through an administrative body, over the taking of waters for municipal supply. In Pennsylvania this control is very incomplete, being limited to certain private water companies. In New York and New Jersey control is complete over all takings for water supply purposes from either surface or underground sources, and these two states afford the most perfect examples of comprehensive administrative control with the primary purpose of securing the equitable apportion2 Control of Appropriations of Water in California. Edward Hyatt, Jr., Journal A. W. W. A., February 1925.

3 April, 1925. A bill to establish such control in Rhode Island failed of passage in the last legislature. See also Tennessee and Group 2c.

ment of the water supply resources of the state among the communities and inhabitants thereof. In both states the applicant files with the administrative body a petition for approval of the project, accompanied by maps, plans and complete data of the project and the reasons therefor. After published notice and public hearing of applicant and objectors the administrative body rejects, modifies or approves the project. The right to acquire water rights and the right of eminent domain are contingent upon prior approval by the administrative body which, before giving such approval, must determine that the plans proposed (a) are justified by public necessity; (b) are just and equitable to others, with especial regard to the present and future water supply necessities of other municipalities and civil divisions of the state; (c) provide for proper and safe construction, in New Jersey of dams, in New York of all works connected with the project. In New York the administrative body must also determine that the project (d) makes due provision for the determination and payment of all legal damages, direct and indirect; (e) will provide water of suitable sanitary quality. The New Jersey administrative body has no jurisdiction over sanitary quality, but the State Department of Health must approve before the water may be supplied for public use. Both states pro

vide for court review.

Group 2b. Right to develop water supply acquired through special legislation. In a few states special legislation is necessary in each case to authorize the taking of water for a public water supply, in Massachusetts from any source, surface or underground, and by either a municipality or a water company; in the other states either from surface sources only, or by municipalities only. There is no administrative allocation except in Massachusetts. In Massachusetts plans for a water supply development must be submitted to the State Department of Public Health before petitioning the General Court for a charter or authority to take water from any source, and the Department's advice and recommendation thereon must accompany such petition. The Department is required to consider the existing and future needs of other municipalities and persons which may be affected by the project. The legislature has for many years adopted the Department's recommendations and provided, in each case, that the source of supply and the location 4 State legislature.

of all dams, reservoirs, wells, etc., as well as the taking of any land for the protection of the water supply shall be subject to the approval of the Department. Thus while the legislature retains complete control, by utilizing the technical services of the Department of Public Health a studied allocation is obtained.

Group 2c. Acquisition of rights without administrative control or special legislation. In the states of this group, there is as yet no administrative control over the taking of water for water supply purposes. Under general laws, municipalities and private water companies may usually take surface waters in any quantity at their discretion, subject to vested rights and to power rights granted by the Federal Power Commission. The permit of the state board of health is generally required before the construction of the works, and in some cases a permit from some administrative body is required for the construction of a dam or other works in a stream or for taking water therefrom, but this control is not in the nature of allocation. In some of these states the need for administrative control is beginning to be realized.

InTennessee the powers conferred on the Quarterly County Courts, under general statutes having specific reference to water supply, are undoubtedly broad enough to permit them to make allocations; yet, since municipalities can, through special legislation, get authority to take any necessary waters without limit of quantity or place, this is not considered effective administrative control.

Interstate und international streams

or

In the case of interstate and international waters, questions of the relative rights of different users, or of different classes of use, of users vs. riparian proprietors, tend to be overshadowed by the larger questions of the relative rights of states. This is particularly true in the case of large diversions. Small diversions across state lines or from interstate streams have been successfully negotiated in several cases, but the tendency, at least in the Atlantic states, has been to avoid streams flowing into, or forming the boundary of, another state, even going to great expense to get a supply wholly within the consuming state. Some of the difficulties of the interstate water problem are: (a) lack of jurisdiction over lands, waters, sanitary protection of works in another state, lack of the right of eminent domain, and the risk of the assessment of excessive taxation and land and water damages; (b) the risk, on the one hand, of interception of the water in the state above, and on the other, of a suit

for injunction by the state below; (c) the risk, in case of a proposed diversion in the state above, of prohibitory legislation by that state; and (d) in the case of a boundary stream, which it is desired to use as a carrier from storage above to point of diversion below, the risk that the stored water may be intercepted in transit in the other state.

In several western states reciprocal legislation authorizes the stream administrative authority of each state to grant all needed rights for projects to use water in other states which reciprocate. In Oregon water supply rights are extended unconditionally to municipalities in neighbor states. Where such legislation is lacking and for large diversions anywhere, an interstate treaty, which apportions the waters of the stream among the states concerned, and which provides machinery to supervise the interstate distribution, appears to be the best solution. This leaves it to each state to apportion its own share. For a fuller discussion of this problem see the Jour. of the American Water Works Association of May and November, 1924, and for the text of the Delaware River Compact, the most recent interstate river compact, now under negotiation, see the Journal of February, 1925.

COMPENSATION IN MONEY AND IN KIND FOR WATER DIVERSION

In Canada and in the eastern portion of the United States, the rights of riparian owners in the waters of running streams are founded on English common law which may be briefly stated as follows:

Any unauthorized interference with or use of the water to the prejudice of one entitled to its use is the subject of an action for damages.

He has the right to have it (the water) come to him in its natural state in flow, quantity and quality and to go from him without obstruction.

In the western states water laws are frequently based on priority of use and take on an individuality of their own. Under whatever law or code the ownership of water rights may be established, water cannot be diverted from its legal owners without compensation in some form.

The compensation for diversion of water in the United Kingdom is ordinarily arranged through providing, for the riparian owners