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Show 32 streams in fractions was, it did allow water to be divided pro rata to all primary users in case of shortage. 39 ( Under systems that adhered strictly to the first- come first- served doctrines of prior appropriation, latecomers bore the full burden of drought.) Another important contribution of the Act of 1880 was its definition of water rights in two classes, primary and secondary. Primary rights included those rights acquired up to the point at which the sum of rights equaled the average stream flow at low- water. Secondary rights were acquired tp water in excess of the average low- water flow, but were subject to satisfaction of primary rights. When supplies more than met primary needs but did not fully meet secondary needs, the existing amount was divided pro rata to secondary rights, somewhat mitigating the harshest features of pure priority. The Act of 1880 defined only the two categories, but subsequent court actions extended the right structure to tertiary rights and beyond. Thus, the act laid an important groundwork for future Utah water law precedents. 40 Many issues came before the water commissioners ( county selectmen) in the years after 1880. Although their potential for administration was limited by the lack of scientific data ( or the means to collect it), commissioners continued to apply rule- of- thumb information and wide practical experience wisely. According to Thomas, they did enduring work when called on to adjudicate individual water rights. Hundreds of streams were " rudely measured or judged as to their flow and the water assigned to the respective users." 41 Judging the Act of 1880 in terms of changes in practice and legal structure, it is clear that it articulated an important foundation for future water law and introduced the economically significant notion that water should be allowed to seek its highest valued use. By separating land and water titles and allowing water to be sold separately, the potential for economic efficiency in water use was dramatically improved. The act did not provide for any centralized territorial control or administration, nor were any methods promoting scientific management of water resources mandated. But it privatized water ownership which contributed to mounting complexity as for- profit or corporate enterprise became involved in water development in Utah. Private Water Companies: Utah's Water Administration Experiment Corporate water administration reached high tide in the three decades following 1880. Generally viewed as an unsuccessful, if indeed not unsavory, episode, corporate water management was part of American free enterprise in its most rugged form. During this era the United States emerged as a financial and industrial power. Railroading, timbering, ranching, mining, and irrigated real estate speculation enjoyed and suffered from volatile boom- bust cycles. In California and Colorado, especially, corporate development was significant. In Utah, as elsewhere, the pace of land and water development increased as population grew, creating pressure for the private development of water and land resources rather than the cooperative development which had been favored by the isolated Mormon commonwealth. 42 These pressures were expressed at two levels as far as water administration was concerned. They Arthur Maass and Raymond L. Anderson, ... and the Desert Shall Rejoice: Conflict, Growth, and Justice in Arid Environments ( Cambridge, Massachusetts, and London, England: The MTT Press, 1978), p 325. '"' George Thomas, Institutions Under Irrigation, p 143; and Elwood Mead, Irrigation Institutions, p 228. 41George Thomas, Institutions Under Irrigation, p 100. 42Population figures for the era are 1870 - 86,786, 1880 - 143,963, 1890 - 207,905, 1900 - 276,749, taken from Table 2, p 56. |
