hands. Experience has shown that in those States where a commission has been appointed to codify and annotate its statutes, the result has not only been satisfactory to the profession, but the cost of such volumes has been much reduced.

In this connection it may be said that the publication of the Supreme Court reports is very unsatisfactory to the profession; they are neither promptly printed, nor are the published volumes, in material, execution or indexing, worthy of their importance.

The praiseworthy efforts of the American Bar Association to procure uniform legislation upon all possible legal matters resulted in the creation by the State of a "Commission for the Promotion of Uniformity of Legislation in the United States," and the Commissioners are regularly appointed by the Governor. It might be profitable for us if this Commission were a little more active in its work, and if it would insist upon some favorable action or co-operation by and on the part of the Colorado Bar Association.

Our Committee on Law Reform should be aided by the members of the Association at large. As we all experience, there are several, if not many, existing statutes which our practice discloses should be corrected, amplified and explained by further legislation. If the members of the Association would consider themselves a Committee of the whole upon this subject of law reform, and aid the committee with persistent, but well digested, suggestions, the work of the committee would be strengthened and more successfully directed to the bettering of legislation.

The benefit that the Association has been to the Bar and State at large cannot be ignored. Its power for the good of the State will be further enhanced if we will trouble ourselves with these somewhat unpleasant details and assume the duty which our Association has imposed upon us of securing proper legislation.

ADDRESS

OF

THOMAS C. BROWN

OF

GUNNISON, COLORADO.

IS A LEGAL CONFLICT IMMINENT BETWEEN THE FEDERAL AND STATE GOVERNMENTS BY REASON OF THE CONSTRUCTION OF THE GUNNISON TUNNEL?

The following question is propounded by the Bar Association, to-wit:

"Is a legal conflict imminent between the Federal and State Governments by reason of the construction of the Gunnison Tunnel?"

The inquiry suggests that there inay be legal grounds for a conflict between the State and Federal Governments, resulting from the acquisition by the latter of the rights of the State to the tunnel and the construction and operation of the same as a canal, and the diversion of waters of the Gunnison River and the application of the same, in the reclamation of arid lands in the valley of the Uncompahgre.

At the very threshold of the inquiry must be considered what rights if any to the waters of the Gunnison River (a public stream of the State) the United States has or can secure, which are at all superior to the rights which might be acquired in the same manner by any canal company or by an individual seeking to divert waters from a public stream for the same purpose? If the Federal Government has secured any superior rights in this respect, it will be

necessary to ascertain how those rights have been secured, and how the same may be exercised.

Our Constitution, which forms an important part of the compact between the State and Federal Government upon which the State was admitted into the Union, expressly provides (Sec. 5, Article 16) that "the water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, etc."

By Section 6 of the same article it is provided that "Priority of appropriation shall give the better right as between those using the water for the same purpose," etc. And preference right is given first for domestic purposes, second, for agricultural purposes, and third, for manufacturing purposes. There has also been some Federal legislation recognizing, in the arid States, the right of the prior appropriator of water to beneficial use. In the absence of these Constitutional and statutory provisions, the Common Law doctrine of riparian ownership would probably obtain in Colorado as in other States. There are many able members of the profession who contend, and they are to some extent supported by authority. that inasmuch as the right to water in all natural streams flowing over land is an incident to the land itself, a patent or grant from the Government carries with it this incidental right, and that where at tract of land is traversed by an innavigable stream and the same is granted by the Government to an individual, that individual holds. and owns not only the land but the absolute right to have the waters of such stream pass over the land undiminished in volume.

It is held that the right to have the water pass over the land at all times, the same as when the grant of the land took effect, is a right inherent in the grant itself just as much as is the ownership of the trees or buildings standing upon the land, but, in recent years. the Federal courts have in a number of cases announced the rule that while the doctrine of the Common Law with reference to riparian rights will be recognized in all the States, it is to be applied only to those cases where the patent or grant has been made before

the diversion of the water by other appropriators, and that, if the water has been so diverted from a stream prior to entry, the entryman takes the land in the condition he found it at the time of the entry, in other words he can invoke this doctrine of the law, only when the diversion occurs after his right is initiated.

It is true that the compact between the State of Colorado and the Federal Government recognizes in the United States the primary right to the disposal of the soil and the absolute ownership thereof; in this respect this State bears the same relation to the Federal Government as other States. The lands upon which the Gunnison Tunnel site is located and the lands which will be benefited by the same lying west and south were, as shown by the official maps, ceded by the Treaty of Guadaloupe Hidalgo, while a large portion of the Gunnison River proper and its tributaries are situate on territory acquired by the Texas Annexation, but there is nothing of importance in this circumstance as the rights acquired by the Government of the United States were under all treaties absolute.

While it is true that the people residing within the territory now forming the State of Colorado, on the admission of the State into the Union, expressly recognized in the Government of the United States absolute ownership of the public lands with the primary right of disposal thereof, without any interference on the part of the State Government, these provisions of the compact must be treated as qualified by the terms of the Constitution (which is likewise a part of the compact), in so far as that instrument declares that the waters of all the natural streams of the State shall be the property of the public and that priority of appropriation shall give the better right to the use of the same, and it must be understood, because there can be no other reasonable conclusion to be deduced from the compact in all its terms, that the Government of the United States as well as the people forming the State of Colorado, understood that the right to the waters of the natural streams were ceded to it, and its people for disposition in such manner as might be provided by its constitution and laws.

While it is true, that under the Common Law doctrine of riparian rights, waters in natural streams flowing through or over lands are to be treated as an incident inseparably connected with the land and the fee, yet it has been expressly held that the Government in the exercise of its rights in the disposal of the soil may grant or cede the right to the waters and thus separate the same from the lands; treating the soil and water as separate subjects of grant, this being a doctrine of the law recognized by the Federal courts in decisions rendered long prior to the admission of this State into the Union, it is entirely reasonable to presume that the United States Government in its compact with the State of Colorado intended that the waters of the natural streams of the State and the lands over which the same flowed should be treated as separate and distinct subjects of grant and that the manner as well as the right to the disposition of the waters of the streams were given over to the State and that the right to the use of such waters was to be disposed of and determined in accordance with its own laws, the United States retaining the right to the disposal of the soil alone; and whether in the grants or patents thereafter made by the Government to the lands situate within the State there was or is any reservation or exception made concerning the rights of the grantee to waters flowing through or over the lands would make no difference, as the compact between the State and the Federal Government makes the excep tion, and no grantee of the Government acquiring his title after the admission of the State into the Union could make any claim of right to the use of such waters except in so far as he may have acquired such right under and pursuant to the laws of the State, which alone is vested with the power to determine the manner in which those rights may be acquired.

It is not believed, however, that the question as to whether the doctrine of the Common Law should or should not be applied to the lands and waters of our State has any material bearing upon the question being considered, for reasons which will presently ap pear. It is unquestionably true that the Government in the disposition of the public lands may impose any terms or conditions it