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Show -86- Indeed, one of these principles was applied by the United States Supreme Court as the rule of decision in a controversy between Wyoming and Colorado at the very time the European treaties above discussed were coming into effect* In both of these States the municipal law fixes water rights between indivi- duals by the rule of "first in time, first in right," or priority of appro- priation for beneficial uses. This had also been the law when the entire domain within both States was a part of the territories of the United States under its absolute sovereignty, so that vast private interests in both States had been acquired under this uniform doctrine before any controversy arose between the States over diversion of water from interstate streams. The "The watercourse may not be used in such a manner that: "(1) the height of the tidal water would be altered or the water polluted to the detriment of other persons; "(2) the height of the water would be so altered that prejudice would bs caused to others-in the exercise of their rights or that harm would be done to the land of others; n(3) additional burdens would be placed on any third party for the up-, keep of watercourses or their banks, unless the advantages -which may be ob- tained by means of the works are greatly in excess of .the loss or damage anticipa-bed. If the proposed use of the watercourse is likely to prove highly detrimental to the public interest, authorization should be refused or granted only upon conditions which would take the public interest fully into account. "An application relating to drainage should in general be given pre- cedence over applications dealing with other improvements. "The works should, as a rule , be so constructed that the water which is not employed in the works themselves should be conveyed back into the original watercourse in such a way that the water is not caused to flow around a pro- pert yiabutt ing on the watercourse unless the owners and usufructuaries of the property have given their consent. TtIn the case of works on a large scale, the Frontier Plater Commission may, however, direct that the water should"be caused to flow around one or more properties adjacent to the watercourse, or that the water shall be dis- charged into another watercourse without regard to the opposition of the parties concerned. In such cases, compensation shall be granted to-persons suffering prejudice for any loss and damage caused. "Arb« 35» 'The proprietors on both banks of any one of the watercourses mentioned in article 1 have equal rights as regards the use of the water so that, if irrigation works are erected upon one bank., only half of .the water of the watercourses may be assigned to these works- The Frontier Water Com- mission shall establish detailed regulations for the apportionment of the water in connection with the erection of irrigation works© M>If, however, all the proprietors and usufructuaries of the land on the opposite bank of the watercourse between the point at which the water is diverted and the point at which it re-enters the watercourse give their as- sent, . mor*e than half the water may be applied to irrigation works on one bank.' ftArb • J4I4.} 'Machinery authorized at the time of the coming into force of this agreement may not, in consequence of the use of the water by other per- sons, be deprived of the water necessary for its working, to the extent which has heretofore been customary. If the right to enlarge the. works has been es- tablished by means of an earlier authorization, the works may not be deprived of the wa/ter necessary for the extended operations.ffr |
