use was acknowledged and confirmed. The United States supreme court has designated this act as "a voluntary recognition of a preexisting right of possession, constituting a valid claim to continued

By this law, proprietors were enabled to establish permanent rights by government patent, and, by an act of July 9, 1870,22 all subsequent patents were issued subject to previously vested water rights.

The federal statutes mentioned above paved the way for formal abrogation of the common law doctrine of riparian rights throughout the arid regions and confirmation of the new doctrine of appropriation, as applicable to both land and water. Prior to these enactments, however, the people of California found themselves confronted by the proposition of choosing between the two doctrines. It is charged that legislators were unfamiliar with conditions prevailing throughout the State and that certain special interests exercised an undue influence in the constitutional convention. In any case, the people of the State permitted the doctrine of appropriation, in so far as it pertained to the establishing of water rights, to be abandoned. In the constitutional law of the State, the simple customs evolved from natural conditions and frontier necessities were made the basis of the mining law, and upon this foundation hsa been developed what is perhaps the best body of mining law extant. In establishing water rights, however, the principle which had proved of equal efficacy in the acquisition and control of water and in the acquisition and control of mineral lands was disregarded, and the common law was declared to obtain throughout the State. At this period in the history of California, began a conflict of legal principles and economic factors which has materially injured the industrial development of the State by making title in highly efficient forces of production so insecure as to discourage their appropriation and reclamation.

For over half a century, the doctrine of appropriation, as worked out by the miners of California, has served as a basis in the construction of water law in the West. However, the doctrine has not remained without amendment, and its extension has been fraught with confusion and difficulty. Advocates of the common law, especially in the

21 14 U. S. Statutes, 253. 22 16 U. S. Statutes, 217.

semi-arid States, have been active in opposing any legislation of contrary principle. The history of California reveals a determined and unsuccessful attempt to harmonize the two doctrines of water rights of contradictory fundamental interpretations. One has been destructively expanded and the other has been so confined as to destroy its broadest usefulness. Nevada emulated the dual system of California until, in 1889, hopeless entanglement caused the supreme court of the State to reverse its former rulings and adopt a positive theory applicable to the economic use of water in that State. As the several States and territories of the arid country have successively recognized and applied the principle of appropriation, the nature of its elaboration and the manner of its administration have varied within wide limits, but the primary principle remains unchanged.

An important tendency in the evolution of the law has been its recognition of different uses to which water may be applied. First designed to apply only to the gold placers of the Sierras, the law was soon extended to recognize agricultural and mechanical uses on a par with mining uses. In some States, notably Colorado and Wyoming, social and industrial progress dictated a changed order of importance and the agricultural use has come to be recognized as most essential and primary. Because of the varying intensity of needs in the different uses, the law was made to meet the order of the uses as well as to recognize the order of appropriation.

Colorado was the first State to incorporate the doctrine of appropriation in its constitutional law. The provisions of the Constitution of that State, relating to title in the use of waters, promulgate this doctrine in its generally accepted terms; and the laws of other States and territories recognizing the principle of the doctrine are derived from the Colorado law. 23 This law denies the riparian proprietor, as such,

"The provisions of the Colorado Constitution relating to the subject are as follows: "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, subject to appropriation as hereinafter provided." (Art. xvi, sec. 5.)

"The right to divert unappropriated waters of any natural stream for beneficial use shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the services of all those desiring to use of the

any rights; that is to say, he has no usufruct of the water flowing in natural streams not open to others whose estates are non-riparian. The State asserts a sovereign ownership over the resources of all natural streams and vests a right of user in those who properly apply their waters to domestic, agricultural, or other purposes. The location of the lands of the user, with respect to the position of the stream, is of no legal consequence. They may border the stream or be remote therefrom. In fact, no reason appears why the streams of one watershed may not be diverted for the benefit of the lands of another, and such action has been sustained by the courts of both Colorado and Wyoming.

The development of the considerable body of irrigation law of the West has been entirely utilitarian, and proceeds upon the principle of economic policy. Its evolution has been rapid and its methods have been in harmony with efficient utilization of natural resources and, in the main, with equitable distribution of their use. It may justly be said that the courts have generally led in the movement of common law nullification and legislatures have been content to sanction the acts of the courts.

The new doctrine of water rights is not free from criticism and will invite frequent modification because of the wide and constantly changing economic sphere of which it is a part. Socio-economic conditions growing out of an inevitable dense population of irrigated areas— intensive and diversified culture, high water values, and coöperative enterprise-will demand a perfection of the law to which that of the present is rudimentary. Under present law, merely the right to irrigate and crude methods of administration are established. The exact nature of property in water for irrigation is not defined, nor can it be until industrial conditions become stable, for the nature of the right must be in harmony with the economic interests involved. The law reaches no conclusion as to the proper source and extent of administrative authority, and uniformity is not yet approximated. Interstate and international problems have not even been approached. The subject matter of domain was formerly considered to be immobile,

stream, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes over those using the same for manufacturing purposes." (Art xvi, sec. 6.)

but now there appears a factor of real property which may not be confined within political boundaries. As long as conflicting property rights are maintained in adjacent States, inter-state difficulties will not be avoided. The Arkansas River, of Colorado and Kansas, is but one of numerous streams concerned, and its lands in Colorado, yielding an annuity of ten millions, represent only a trifling factor of the inter-state interests involved. Along the course of the Rio Grande, the State of Colorado, the territory of New Mexico, and the republic of Mexico still contend for exclusive privileges conferred by conflicting laws.

In spite of the many imperfections of the infantile legal institution based upon the doctrine of appropriation, its permanence is assured in America. It emerges from a conflict between the rule of precedent and judicial inertia on the one hand, and predominating economic forces on the other; between a time-honored anemic institution, and custom called into being by the necessary intensive application of natural utilities to social needs. The first was native to humid England prior to the industrial revolution, and the second is the natural outgrowth of the industrial conquest of a country of aridity, nonnavigable streams, and superabundant lands. The one is reluctant to forfeit historical privileges and practices which are irrelevant under given conditions; the other recognizes national economy and collective interests, and contains the germ of an order of rights in industrial forces which bids fair to promote a scientific modification of existing conceptions of property.

THE INITIATIVE, THE REFERENDUM, AND THE RECALL

RECENT LEGISLATION IN THE UNITED STATES1

MARGARET A. SCHAFFNER

To make representative government more representative is the problem of today. The gradual process of social evolution has changed the industrial basis upon which our political institutions rest, and the increased complexity of our social organization has made the expression of the popular will more difficult. As readjustment to changing conditions is the requisite for any advancing type of life, so political progress becomes impossible unless new agencies are developed to be retained or discarded as experience may warrant.

Among the agencies for political expression, few have made more remarkable progress in the history of recent legislation than the initiative, the referendum, and the recall. State wide referendums for the adoption of State constitutional, and local referendums for local affairs, are familiar institutions in the United States, but it is only within recent years that our States have begun to adopt the initiative and the referendum for State legislation.

CONSTITUTIONAL AMENDMENTS FOR THE INITIATIVE AND THE

REFERENDUM

Prior to 1907 a group of States, including South Dakota (1898), Utah (1900), Oregon (1902), Nevada (1904), and Montana (1906), had adopted constitutional provisions. Some of these amendments were imperfectly drawn and lack of experience as to the practical workings of direct legislation in certain cases led to the omission of essential

The writer is under obligation to the Hon. George H. Shibley, president of the National Federation for People's Rule for manuscript copies of bills and laws before they were available in published form.

2 South Dakota, Const. (amend. 1898), art. 3, sec. 1. Utah, Const. (amend. 1900), art. 6, secs. 1 and 22. Oregon, Const. (amend. 1902), art. 4, sec. 1. Nevada, Const. (amend. 1904), art. 19, secs. 1 and 2. Montana, Const. (amend. 1906), art. 5, sec. 1.