OCR Text |
Show 8 STATE WATER POLICIES should constitute a Board of Control with supervision over the waters of the State.36 Use of Water Use of Water a Public Use A foundation for such public functions as control of the use of water, regulation of water rates, and exercise of the power of eminent domain is laid in provisions of various Western State constitutions. Public use in general. -Some features of public use of water are discussed above under "Public Supervision over Waters." The constitution of Washington declares that the use of water for irrigation, mining, and manufacturing purposes shall be deemed a public use.37 In South Dakota, the irrigation of public lands is a public purpose, and legislation for the organization of irrigation districts is authorized.38 Nebraska declares that the necessity of water for domestic use and irrigation is a natural want.39 The control and management of waters for useful purposes are declared by the Texas amendment to be public rights and duties, concerning which the legislature is commanded to pass appropriate laws.40 Sale and rental of water.- The constitutions of California, Idaho, and Montana declare that the use of water appropriated for sale, rental, or distribution is a public use.41 Idaho provides further for the exclusive dedication of such waters to agricultural and domestic purposes when used therefor, upon proper payment, and for priority in water service.42 Condemnation by individuals. -Statutes of many Western States grant the power of condemnation for rights of way to individuals for their own private irrigation purposes on the theory that the use of water for irrigation is a public use even when made by individuals for personal use on their own private lands, and the validity of the principle has judicial sanction. For example, the Supreme Court of Utah upheld the constitutionality of a statute of that State authorizing individuals to condemn rights of way across lands owned by others by enlargement of existing ditches thereon, in order to bring water to irrigate their own land.43 In affirming the judgment of the State court, the United States Supreme Court took note that the water rights principles and laws of many Western States differed markedly from those in the East, and felt constrained to recognize the physical differences that rendered necessary the 36 Wyo. Const., art. VIII, § § 2, 4, and 5. 37 Wash. Const., art. XXI, § 1. 38 S. Dak. Const., art. XXI, § 7. 39Nebr. Const., art. XV, § 4. See State v. BirdwoodIn. Dist., 154 Nebr. 52, 55, 46 N. W. (2d) 884 (1951). ^Tex. Const., art. XVI, § 59a. 41Cal. Const., art. XIV, § 1; Idaho Const., art. XV, § 1; Mont. Const., art. Ill, § 15. 42Idaho Const., art. XV, § § 4 and 5. 43Nash v. Clark, 27 Utah 158, 162-168, 75 Pac. 371 (1904). |