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Show 278 APPROPRIATION OF WATER (1) Statutory authorizations. The earliest statutory authorization to this effect that has come to the author's attention was the Colorado Territorial right-of-way law enacted by the first legislative assembly. This provided that persons owning claims on the bank, margin, or in the neighborhood of any stream should have the right-of-way over adjacent lands for purposes of irrigation.280 In construing this law in its first reported water rights decision, the Territorial supreme court observed that all lands were held in subordination to the dominant rights of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands. This right, said the court, arose not only by virtue of the statute, but sprang from the necessity arising from local pecularities of climate.281 The Colorado State constitution accorded to all persons and corporations rights-of-way across both public and private lands for conveyance of water for domestic, irrigation, mining, and manu- facturing purposes, and for drainage, upon payment of just compensation.282 Another early authorization was contained in the Arizona Territorial Howell Code of 1864. This provided for acquisition of rights-of-way for public or private acequias across private lands not benefited by the acequia, upon assessment and payment of damages.283 In granting such rights-of-way to an individual for his own benefit, the statutes either directly or impliedly relate the authorization to an exercise of the power of eminent domain. For example, the Oklahoma authorization is to "exercise the right of eminent domain to acquire" the necessary rights-of-way, such rights to be "acquired in the manner provided by law for the taking of private property for public use."284 Or the right-of-way may be granted "upon payment of just compensation therefor."285 With respect to the Utah statute granting the right of enlargement of an already constructed ditch upon payment of proper compensation,286 the State supreme court held that proceedings under this section are controlled by the principle involved in the law of eminent domain.287 The California procedure differs markedly from the usual western pattern. Private ways for an irrigation, drainage, or seepage canal may be opened, laid out, or altered by order of the board of county supervisors for the convenience 280Colo. Laws 1861, p. 67. 281 Yunker v. Nichols, 1 Colo. 551, 555, 570 (1872). 282 Colo. Const., art. XVI, § 7. The current statutory provisions are in Colo. Rev. Stat. Ann. § § 148-3-1 to 148-3-5 (Supp. 1969) and § 148-3-6 (1963). 283Terr. Ariz. Howell Code, ch. LV, § 4. The current authorization to landowners is Ariz. Rev. Stat. Ann. § 45-201 (1956). 284Okla. Stat. Ann. tit. 82, § 2 (1970). See Alaska Stat. § 09.55.240(b) (Supp. 1962); Nev. Rev. Stat. § 533.050 (Supp. 1967). 285 Utah Code Ann. § 73-1-6 (1968). 2a6Id. § 73-1-7. 281Nielson v. Sandberg, 105 Utah 93, 96-102, 141 Pac. (2d) 696 (1943);Peterson v. Sevier Valley Canal Co., 107 Utah 45, 50-51, 151 Pac. (2d) 477 (1944). |