UC-NRLF
OUTLINE OF MATTER, AND ADVANCE SHEETS
REPORT
Legislative, Administrative, Technical, and Practical
PROBLEMS OF IRRIGATION
IN COURSE OF PREPARATION AND PUBLICATION.
WM. HAM. HALL,
State Engineer.
STATE OFFICE .
SACRAMENTO:
. . . JAMES J. AYEKS, SUPT. STATE POINTING.
1884.
GIFT OF
OUTLINE OF MATTER, AND ADVANCE SHEETS
REPORT
Legislative, Administrative, Technical, and Practical
PROBLEMS OF IRRIGATION,
IN COURSE OF PREPARATION AND PUBLICATION.
WM. HAM. HALL,
State Engineer.
SACRAMENTO:
STATE OFFICE TAMES J. AYERS, SUPT. STATE PRINTING.
1884.
NOTICE.
The 304 pages of matter within these covers have been thus brought
together and bound for transmission to the Legislature as an exhibit
of the extent and character of the REPORT ON THE PROBLEMS OF IRRI-
GATION, now in course of preparation and publication by the State
Engineer.
The first 32 pages contain a Table of Contents, or Outline of Matter,
for each chapter of the entire work, from which a fair idea may
be formed of its scope, system of arrangement, degree of complete-
ness, and general character.
The 272 pages thereafter— 32 to 304 — contain the text of about three
fifths of the First Book of the work — namely, the papers on the IRRI-
GATION LEGISLATION AND ADMINISTRATION of the Romans, of the
French, and of the Italians — from which a fair idea may be formed of
the character of the matter and its treatment in detail.
As planned, the work consists of Three Parts, made up of Seven
Books, with subject-matter as indicated by the following titles:
PART I.
The Social, Political, and Legal Problems of Irrigation.
BOOK I — The Laws of Waters and Water-courses, and the Customs,
Laws, and Policies with respect to Irrigation, in Civil Law countries.
BOOK II — The Laws of Waters and Water-courses, so far as these
directly affect irrigation questions, and the Customs, Laws, and Poli-
cies, with respect to Irrigation, in Common Law countries.
PART II.
The Physical, Practical, and Technical Problems of Irrigation.
BOOK III — The physical questions of Water supply, Conservation,
and Division for purposes of Irrigation in California.
BOOK IV — The existing Works, Practice, and Possibilities of Irri-
gation in California.
BOOK V — The technical questions of Water Distribution and Use
in the practice of Irrigation in, and as applied to, California.
332744
PREFATORY NOTICE.
PART III.
The Planning, Construction, Operation, and Maintenance of Irrigation
Works.
BOOK VI — Of Works for the Interception and Storage of Waters
for Irrigation.
BOOK VII— Of Works for the Diversion, Conducting, and Applying
Waters in Irrigation.
The first five Books of the work, with their necessary appendices,
will make up four volumes, each of 450 to 550 pages, of the size and
style of the sheets now printed, varying with the provision which may
be made for printing, illustration, revising, and editing the matter
now available.
The matter for the last two Books is being collected incidentally to
the preparation of the first five. It may be published within the com-
pass of one volume or may be extended to two volumes, according to
the provision made for completion and the operations of publication
as above.
For further information concerning this report, see Report of the
State Engineer to the Legislature, for the two years ending with
December 31, 1884. '
BOOK I.
IRRIGATION LEGISLATION AND ADMINISTRATION IN COUNTRIES
UNDER THE CIVIL LAW.
A. — THE ROMAN EMPIRE — INTRODUCTORY.
CHAPTER I. — The Roman Laws and Administrative Policy with respect
to Waters and Water-courses.
INTRODUCTION — IMPORTANCE OF THK ROMAN LAWS OF WATERS : — Time and circumstances of
forming,- The fountain head of legal reasoning; The basis of modern Civil law.
SECTION I — RIGHT OF PROPERTY IN WATERS AND WATER-COURSES: — Property classified; Com-
mon property defined ; Running waters, common property; Public property defined; Navi-
gable rivers and important streams, public property; Unimportant streams, private property;
Rivers defined; River banks and beds; Ownership and use of banks and beds; Resume as to
ownership.
SECTION II — CONTROL or PUBLIC RIVERS AND WATERS : — The rights of navigation and fishery :
Guarding of channels, banks, and beds; Unlicensed works prohibited; Diversion prohibited;
Construction and maintenance of works; Riparian right to protect banks; Diversion of public'
waters; Public waters always public; Appropriation not allowed ; The waters devoted to public
use; Permits granted to divert and use; Use of public waters; Terms of grants or permits;
Exercise of water privileges; Public springs; Public reservoirs; Prescriptive rights; Waste
prohibited.
SECTION III — CONTROL OF WATERS IN PRIVATE WORKS : — Springs on private lands, private
property; Rights to use spring waters; Prescription; Agreement; Spring waters become com-
mon property; Riparian right to use; Water in private works, private property ; Use of private
waters ; Waste prohibited.
SECTION IV — THE RIGHT OF WAY TO CONDUCT WATERS: — Servitudes; Dominant estates; Ser-
vient estates; Servitudes classified; The servitude to conduct water; Acquirement of right;
Prescription; Agreement; Condemnation of right of way for public works; Servitude of right
of way for private works; Permission to conduct water across public property; Thfe servitude
to draw water.
B. — FRENCH IRRIGATION LEGISLATION AND ADMINISTRATION.
CHAPTER II— FRANCE C1); The Right of Property in and Control of
Water-courses in France.
SECTION I — ORIGIN OF PROPERTY RIGHTS AND OWNERSHIP OF STREAMS: — Basis of property
rights; Downfall of Roman rights; Merovingian system; Feudal tenure; 'Downfall of Feudal-
ism ; The modern monarchy.
6 CONTENTS: BOOK i; IRRIGATION LEGISLATION.
Ownership and control of navigable streams ; Navigable and floatable streams, public prop-
erty; Possible arbitrary application of the rule; The Code Napoleon; Floatable streams, public-
property; The edict of Moulines; Inalienability of the public domain.
Oivnership and control of streams not navigable nor floatable; Riparian claims of ownership :
Water-courses not navigable nor floatable, common property ; Riparian claims to ownership of
stream beds; Government control of channels.
Riparian claims to waters as a property; Riparian claims to waters as a common property :
General claim of waters as a common property of all the people ; Riparian right to use \.
as a servitude; The waters are a common property of all the people ; The beds a common prop-
erty so long as covered.
SECTION II — WATER LAWS AND REGULATION'S -.—Moving causes of development ; Agriculture ami
irrigation; Manufacturing and water power; Internal transportation made necessary; Inunda-
tions ; Sanitary necessities.
Special regard for irrigation; Agriculture a leading interest; Irrigation ranked in the laws,
above other uses except domestic use and navigation; The administration favors irrigation :
Liberality of French water laws.
Classification of water laws; The earliest laws; Statutory law; Two branches of a sort of
Common law; Judicial decisions; Administrative rulings; No one, general, water-law or code in
France.
SECTION III — THE ADMINISTRATION: — Antiquity of French supervision of public «ml common
property; The executive branch of government; Its decrees, instructions, regulations, etc.;
Administration of non-navigable streams; Administration of navigable streams.
Administrative purpose and policy; Regulation of works and waters on floatable -tiv:mi-:
Regulation of works in streams not floatable.
Government organization; France; Government; Legislative branch; Executive branch;
Council of stale; Ministry; Departmental governments; Prefects and councils: Arr<>!
ments; Sub-prefects; Communes; Mayors and municipal councils.
The administrative system; Line of administrative duty; Extent of a department and of a
commune.
The bureau of public works; Minister of public works; Advice of the council of state: Pre-
fects' executive duties.
The engineering department; Education of the engineers; Their field of duty ; The conductors
or superintendents; Their preparation and duty.
Administrative working; Powers and duties of prefects; Powers and duties of engineers.
Navigation and river' guards; River regulations; Policing of streams; River guards: Duties
and compensation ; Necessity for river guards.
CHAPTER III— FRANCE (2); Water Privileges and the Administration
of Navigable and Floatable Streams.
SECTION I — WATER PRIVILEGES: — The uses to which water is put and the regulation of its use;
Irrigation, manufacturing, industrial works, and municipal uses; Government regulation ol
its use.
The object of administration; Interference, not the object; Promotion of harmony and pre-
vention of conflict, the object; Worthiness of and necessity for the principle.
Rivers and river works in France; The necessity for rivers conservancy; The systems on the
lower and on the higher rivers.
Navigable and non-navigable rivers; Public rivers defined; Non-navigable tributaries; Non-
navigable arms of navigable rivers.
Forms of organization of irrigation enterprise; Private individual enterprise; Associate or
cooperative enterprise; Speculative corporate companies.
CIVIL LAW COUNTRIES: FRANCE. 7
Applications and formalities ; For water privileges on non-floatable streams; Application,
preliminary inquiry, publication, engineers' reports, final inquiry; Water privilege grants on
public streams; Applications, reports, plans, projects; Inquiries, engineers' reports, ministers'
decisions.
Water -right grants ; The case of the Bourne canal; Obligations of the grantees; Conditions of
the concession; Privileges of the grantees; Benefits to the company.
SECTION II — REGULATION OF WORKS: — Government improvement of navigable rivers; Canaliza-
tion of upper rivers; Movable dams; The hydraulic service of the public works bureau; Its
extent, field, and duty.
Organization for agricultural hydraulic works; The principles of cooperation and compulsion ;
Cases when water is an enemy and when an auxiliary.
Regulation of the construction of works ; Regulation of the construction and height of dams;
Combination of navigation with water-power or irrigation dams; payment for works; Regula-
tion of the construction of headworks; Payment for works; Sluiceways; Grades.
SECTION III — OPERATION AND MAINTENANCE: General maintenance of works ; Of works of navi-
gation; Of joint navigation and irrigation or water-power works; Of private works; State, joint,
and private expense.
Cleaning and dredging of channels; Public expense; Contributions of dam owners and water
employers; Contributions of riparian proprietors.
Police of streams; Violations of laws; Severe penalties; Laws of ancient dates; Penalties mod-
ified ; Powers of councils of prefecture; Compulsory removal of objectionable works; Adminis-
trative duties of prefects.
Water privilege rents: All privileges subject to rent charges; Rates for water-power; Rates for
irrigation; Rates for industrial uses; Rates for municipal uses; Nominal rates; Duties of engin-
eers; Collection of back rents; Revision of rents every thirty years; Exemption of rights ante-
dating 1566.
CHAPTER IV — FRANCE (3); Water Rights on, and the Administration
of Non-navigable Streams.
SECTION I — RIGHTS TO THE USE OF WATER: — Water-rights previous to the time of the Code
Napoleon; Riparian claims to absolute control of streams and waters; Conflicting interests; The
administrative view; The waters a common property of all people.
Riparian water-rights under the code; Claim of exclusive right; Claim under article 552 ;
Province and duty of the courts; Decisions upholding the administrative view; Attitude of the
administration under the decisions.
The riparian water-right, and the right of way ; Previous to the law of 1845; The right of way
law of 1845; The dam privilege law of 1847; Control of the fall or slope of a stream; Decision
of the court of cassation ; Backing up of water permitted ; Exclusive riparian servitude on use of
waters.
The nature of the riparian right to water; No element of ownership; No semblance of the
principle of prior appropriation; Merely an undefined and unsegregated part of a common
right; Subject to regulation.
The right of irrigation ; Absorption of water; Drainage and residue to be returned; Each case
one for equitable administration.
SECTION II — SUPERVISION OF CONSTRUCTION OF WORKS: — The decentralization of the administra-
tion ; More power vested in the departmental authorities, the prefects, and engineers; Extent of
their powers and duties.
Nature of the powers held by prefects ; Police measures compel respect for public interests;
Regulation of division of waters; Regulation of construction of works.
CONTENTS: BOOK i; IRRIGATION LEGISLATION,
Applications for sanctions to construct works; Right to water must be established; Formali-
ties, publication, inquiries, engineering reports; Conditions attached to permits.
Dams and Headworks ; Legal heights of dams; Determination and marking; Sluiceways
and weirs; Movable dams for irrigation; Dimensions and form of outlets.
SECTION III — REGULATION AND OPERATION — WORKS AND WATERS: — The necessity for regulation
and administration ; Individual unreasonableness; Conflicting decisions; Varying physical con-
ditions; Recognition of the necessity for regulation.
Administrative authority to make regulations; Origin of the authority found in ner
and gradual development; The promotion of harmony and prevention of abuse.
The principles adhered to; The points to be met; The method of meeting them; General
rules as to division of waters; Division by measurement and by turns; Ancient custom gov-
erning; Decree of July, 1872.
Policing of Water-courses; The formula prescribed in 1878 by ministerial circular.
CHAPTER V— FRANCE (4); Rights of Property in Springs, and Rights
to the Use of Spring Waters.
SECTION I — OWNERSHIP AND CONTROL OF SPRINGS : — Absolute ownership ; Ownership of the land
carries with it ownership of a spring on it; This doctrine for a long time strongly opposed ; But
it has been upheld ; But the right to use spring waters may be lost.
SECTION II — ACQUIRED RIGHTS TO SPRING WATERS: — Public and private use of springs; The
necessities of communities; The interests of navigation; Private acquirement of right by title
and by prescription ; Servitudes, resulting from prescriptive use and from divisions of c-
SECTION III— DRAINAGE AND OTHER RIGHTS:— Natural right of drainage ; Restrictions on the
extension of the right.
The right to dig or bore for water ; Extent of the privilege; Forfeiture.
CHAPTER VI— FRANCE (5); The Right of Way to conduct Water, and
the Right to abut a Dam.
SECTION I — RIGHTS FOR WORKS OF PUBLIC IMPORTANCE : — Condemnation for works of public utility :
The laws of 1836 and of 1841 ; Administrative inquiry; Special laws of authorization; Way I'm-
main and secondary works; Embarrassment previous to right-of-way law of 1845.
SECTION II— RIGHTS FOR PRIVATE WATKR WAYS:— The servitude of right-of-way : Opposition t<>
its establishment; the law of 1845.
The servitude of right-to-abut-a-dam ; The complement of the former servitude; The law of
1847; The application of these laws.
CHAPTER VII— FRANCE (6); Irrigation Enterprise and Organizati
SECTION I— GOVERNING INFLUENCES:— Climatic and social influences; Irrigation not generally
appreciated; Small landholdings and jealousy of rights; Poverty of peasantry and indiil'eiviu-e
of capital; High valuation of lands; Heavy cost of works; Riparian rights question.
SECTION II— IRRIGATION COMPANIES AND ASSOCIATIONS:— Forms of association; Speculative
companies; Association of landholders; Necessity and advantage of association ; Causes which
retarded appreciation.
Syndicate associations; An analysis of the law of 1865; Free syndicate associations; Author-
ized syndicate associations; Prefectorial power; Governmental policy; The principles of coopera-
tion and compulsion.
CIVIL LAW COUNTRIES: ITALY.
CHAPTER VIII — FRANCE (7); Governmental Policy and Irrigation
Concessions.
SECTION I — FEATURES OF POLICY AND FORMS OF ENTERPRISE: Political and social conditions;
Not such as to warrant irrigation being made a general national work;- Contrast between the
case of France and those of India and Egypt.
Forms of governmental encouragement; Tax rebate on advanced values due to irrigation;
Loans, advances, subsidies, guarantees; Main works built for associations; Main works built
for state management; Premiums on irrigation examples; Collection and publication of irriga-
tion statistics; Statistical atlas of irrigation.
SECTION II — NOTABLE INSTANCES OF ENTERPRISE AND ENCOURAGEMENT: — The Canal des Alpines,
Canal Carpentras, Canal of Cadenet, Canal of St. Martery, Canal of Siagne, Canal of Siagnole,
Canal of the Bourne, Canal of the Rhone, Canal of Vesubie, Pierre-latte canal, Canal of Ma-
nosque, Canal of the Herault, other late works.
C.— ITALIAN IRRIGATION LEGISLATION AND ADMINISTRATION.
CHAPTER IX — ITALY C1); Right of Property in and Control over
Water-courses and Water-sources.
INTRODUCTION — Importance of the study of irrigation experience in Italy : — The valley of the
Po, the classic land of irrigation; Magnitude, number, and excellence of its irrigation works;
Long continued systemization of its irrigation practice; Its irrigation customs crystallized into
well ordered codes of laws.
SECTION I — BASIS OF PROPERTY RIGHTS IN WATER-COURSES AND WATERS IN NORTHERN ITALY: —
Barbaric rule of the middle ages; The birth and development of the Italian republics; The rise
and fall of the feudal system; The principles of the Roman law handed down in the customs of
the people ; The earliest known laws.
Government ownership of all natural streams of importance as irrigation feeders ; The rule alike
in Piedmont and in Lombardy, and now for all Italy; Declarations of ownership, in the royal
ordinance of 1817; Instructions to iutendants, of 1828; Sardinian code of 1837; And the new
Italian code of 1865; Neither navigability nor floatability the test of public importance of a
stream in Italy ; The volume of waters available for irrigation, the test ; The underlying physical
•cause for the difference between this rule in Italy and that of France.
Government control of water-courses ; General regulations for water-courses in Piedmont (1817) ;
Articles of the Sardinian Penal code, applicable to the affairs of water-courses (1837); River
regulations in Lombardy; Special, for the River Lambro (1756 and J.782).
SECTION II — OWNERSHIP AND CONTROL OF SPRINGS:— Character, number, and great importance
of the springs in the valley of the Po; Resemblance of these fontanili to the cienegas of southern
California; Private property right in springs, and acquired rights to use spring waters, in Lom-
bardy ; In Piedmont, the articles of the Sardinian code ; Comparison of these with the analogous
articles of the French code; In the present kingdom of Italy, the articles of the Code Victor
Emmanuel ; Comparison of these with those of the Sardinian code.
Regulation of the opening of springs; Origin and source of the spring waters; Necessity for
restrictions on the opening of new springs; In Lombardy., the law of 1804 and the decree of
1806; Comments of De Buffon on the foregoing; In Piedmont, the articles of the Sardinian
•code; Regulations present questions for exporting ; Opinion of Giovanetti.
SECTION III — THE RIPARIAN RIGHT: — No private streams, except small rivulets, in Italy; No
-control of waters by riparian proprietors on public streams; Riparian rights on private streams,
under the Sardinian code; Comparison of these articles with analogous provisions of the French
10 CONTENTS: BOOK i; IRRIGATION LEGISLATION.
code,- The articles of the new Italian code on this subject: Comparison with those which pre-
ceded it.
CHAPTER X — ITALY (2); Water Privileges and Canal Works, and the
Administration of Waters and Works.
SECTION I — THE RIGHT TO CONSTRUCT WORKS IN AND TO DIVERT WATERS FROM STREAMS: — Gov-
ernmental policy in regard to water privileges; la ancient Milan, and Venice; In modern L<>m-
bardy, and Piedmont; In the present, unified Italy; Applications and formalities fur water
privileges; Piedmont, instructions of 1828; Lombardy, and the present kingdom of Italy:
Terms of water-right concessions; Lombardy. regulations of 1806; Piedmont, articles of the
Sardinian code; All Italy, articles of the Code Victor Emmanuel.
SECTION II — ADMINISTRATIVE REGULATION OP WATER-COURSES: — The general administrative
organization of Italy; The local administrative organizations of the departments; River regu-
lation in Piedmont; Instructions to the agents of the domain ; Regulations of LSI 7; For navi-
gable, and for non-navigable rivers; General river regulations for Lombardy, promulgated by
the Austrian rulers, for the province of Mantua.
SECTION III — ADMINISTRATION OF GOVERNMENT CANALS: — Organization of the administrative
bureau; In Piedmont under the minister of finance; The office of works, and the engineer-
ing corps; Instructions to the agents of the domain, concerning canals and waters; Pied-
montese system ; General regulation for the administration of the royal canals : The Lombard-
ian system; The system for all Italy.
CHAPTER XI— ITALY (3); Regulation of Irrigation Practice.
SECTION I — DISTRIBUTION AND 'MEASUREMENT OF WATERS. — Hydraulic science and practice;
The problems of distribution and measurement; The Piedmontese legislation, articles of the
Sardinian code; Legislation for all Italy, articles of the Code Victor Emmanuel : Remarks on
these provisions; First system — distribution by volume; Opinions of Gicvanetti, l)e BuiUm.
and Sclopis; Importance of settled conditions; Second system — distribution by use or service;
Third system— distribution by time.
SECTION II— THE RIGHTS OF IRRIGATORS :— (1) The right to a continuance of water supply
from canals: A great struggle over this point : The former ruling in Piedmont, not, n <-o-nixed
in the Sardinian code ; The struggle between canal men and irrigators in Lombardy under
Austrian rule; Long leases and carefully drawn agreements, the outcome of the- intentions :
(2) The right to the use of spare waters: Contentions over this point in Piedmont : The c
the Marquis de Saint G.; Articles of the Sardinian and of the Italian codes, on this point.
SECTION III — OBLIGATIONS AND RIGHTS OF IRRIGATORS AND CANAL MEN: — (1) Concerning water
supply and use; Provisions of the Sardinian and of the Italian codes; (2) Priority of privilege
in distribution; Schedules for distribution; The Sardinian and Italian rulings.
CHAPTER XII— ITALY (4); Regulation of Drainage and Works con-
nected with Irrigation Practice.
SECTION I — REGULATION OF WORKS ACCESSORY TO IRRIGATION PRACTICE : — Distances to be pre-
served from boundaries of tracts: The necessity for regulations on this point: The articles of
the Sardinian and of the Italian codes; Obligations concerning the construction and main-
tenance of works; Prevention of interference; Articles of the codes.
SECTION II — THE RIGHTS AND OBLIGATIONS OF DRAINAGE : — Necessity for drainage in Italy :
Troubles arising out of drainage matters; Opinions of Baird Smith; The principles of the
Piedmontese law; Articles of the Sardinian code; The law of Lombardy; Articles of the
Italian code; Comparisons of these laws.
CIVIL LAW COUNTRIES: ITALY. 11
SECTION III — SANITARY LKGISLATION : — The unheeded teachings of experience: Evil effects
of unregulated and unskilled irrigation; Legislative regulation of rice culture in Loinbardy
and in Piedmont; The question one for general legislation, but also for administrative judg-
ment; Modern sanitary legislative regulations, in connection "with irrigation of rice and of
meadows; In Lombardy, a special decree of 1809; In Piedmont, a general law of 1855.
CHAPTER XIII — ITALY (5); The Right of Way to conduct Waters.
SECTION I — SOME ANCIENT AND MODERN LAWS ON THE RIGHT OF WAY SUBJECT: — The Milan-
ese code of 1216; The Venetian code of 1455; The Charles Emmanuel code of 1770; The Lom-
bardian laws and decrees of 1804 and 1806; The wisdom of these last laws overlooked by the
Austrian rulers of Lombardy in 1816; Trouble growing out of this oversight; Decision of the
Aulic council at Vienna and return to the Napoleonic laws in 1820.
SECTION II — THE SERVITUDE OF WAY TO CONDUCT WATERS: — Piedmont under the Sardinian
code; Nature of the right; Form and amount of compensation; Three forms of the right-of-
way question; First form — the right of aqueduct across lands; Articles of the Sardinian and
Italian codes; Noteworthy points in these provisions ; Compensation; Second form — the right
to cross other canals; Sardinian and Italian codes' provisions, and comments thereon; Third
form — the right of aqueduct by a common channel; Sardinian and Italian codes' provisions,
with remarks thereon; The right of aqueduct for waters of drainage and for warping; Lorn-
bardian, Piedmontese, and general Italian laws.
SECTION III — RIGHT OF AQUEDUCT FOR PUBLIC WATERS: — Condemnation for purposes of public
utility; The Sardinian and Italian codes' provisions, with remarks thereon; Favorable opinions
of Smith and of DeBuffon on the system.
CHAPTER XIV — ITALY (6); Irrigation Organization and Regulation.
SECTION I — IRRIGATION ORGANIZATION: — Causes and necessities for organization; Social tend-
ency of irrigation in Italy; Formation of irrigation associations in Lombardy; General law of
association in Lombardy.
SECTION II — ORGANIZATION AND MANAGEMENT OF IRRIGATION ASSOCIATIONS : — The general asso-
ciation of irrigation west of the Sesia; Piedmont; Internal organization and management;
The direction-general and the council of arbitration ; Finance and superintendence; Relations
of the government and the association; Government lease of waters and canals to the associa-
tion ; Rights and privileges under the lease; Management of the waters and maintenance of the
works; Water-power and mills; Revenue and rents.
SECTION III — ORGANIZATION OF IRRIGATION ASSOCIATIONS : — The present law for all Italy; Vol-
untary associations of landholders; Compulsory formation of associations; The principles rec-
ognized as to inseparable community of interests and public utility in such works.
CHAPTER XV — ITALY (7); Irrigation Enterprise.
SECTION I — FORMS OF ENTERPRISE AND EXAMPLES OF CANAL CONSTRUCTION : — The association prin-
ciple not generally applied in carrying out main canal works; Review of •principal works
carried out in ancient and modern times; The great modern work, the Cavour canal ; Its char-
acter, size, location, cost, history, and unfortunate management.
SECTION II — CONCESSIONS TO CAPITALIZED COMPANIES: — Analysis of the concession to the
Cavour canal company; (1) Obligations of the company; (2) Conditions of the concession; (3)
Privileges to the company ; (4) Benefits to the company.
SECTION III — GOVERNMENT POLICY AND ENCOURAGEMENT TOWARDS IRRIGATION: — General pol-
icy as to public works; Prize competition in irrigation practice; The royal decree of 1879; The
hydrographic survey of Italy.
12 CONTENTS: BOOK i; IRRIGATION LEGISLATION.
D.— SPANISH IRRIGATION LEGISLATION AND ADMINISTRATION.
CHAPTER XVI— SPAIN C1); The Right of Property in and Control of
Water, and Water-courses.
INTRODUCTION. — IMPORTANCE OF THK STUDY OK THK IRRIGATION SYSTEMS OF SPAIN: — The physi-
cal conditions of, and the necessity for irrigation in Spain : The great central plateau of Spain :
The south and east coasts: Rainfall and its distribution through the year: Resemble
these conditions to those presented in California; Similarity in cultivations also; The necessa-
rily fragmentary treatment of the subject.
SECTION 1 — ORIGIN OP PROPERTY RIGHTS IN SPAIN: — Barbarian rule in Spain; Dominion of
the Goths; The codification of the Gothic laws; The inroad and dominance of the Moon;
Conflicting local laws and customs; Expulsion of the Moors; Local customs and rights I. -ft
firmly implanted; Gradual unification of Spain; Repeated codification or compilation of the
Spanish laws; The principles of the Roman laws as to waters, molded upon a Gothic form.
and modified in application by Moorish customs and local administrative organization ; i
codifications.
SECTION II — OWNERSHIP AND CONTROL OK WATERS AND WATER-COURSES : -Principles of tin-
Spanish law; The Institutes of the Civil law of Spain; Classified division of property: Pub-
lic property and common property; The communal system of the Roman provinces: Com-
munal property rights; The administration of communal property: Ancient <• mmunity
water-rights and irrigation enterprise.
SECTION III— GOVERNMENTAL ADMINISTRATION AND REGULATION OK \VATKu-n>ui:sKs ANI>
WATERS: — Governmental organization of Spain; The ministry of Fomento : The division of
ports, canals, waters, etc.; The civil engineering bureau; The provincial governments; Com-
munal administrative system of modernized Spain; The public-works policy of Spain : River
improvement and guarding.
CHAPTER XVII — SPAIN (2); The old general Water-laws of N/^////.
SECTION I — RIVERS AND RIVER WATERS, AND THE UTILIZATION OK THEM: — Rivers as distin-
guished from torrents; Public ownership of rivers; Construction of works in and on the bank-
of rivers; ownership of waters of rivers; Rights to divert waters;' Navigable and non-nav
rivers, and non-navigable tributaries of navigable rivers; Extent and nature of riparian ri'_rht.-:
Diversion and use of waters encouraged under government regulation; Instructions to govern-
ors of provinces, in 1788; Royal decree to promote irrigated agriculture, in 1819; Rights under
these laws; Governmental regulation of these privileges; Royal order of !>.">'./.
SECTION II — SMALL STREAMS AND TORRENTS, AND THE UTILIZATION OF THKII; WATKUS: — The di>-
tinction between public and private waters; Local and communal control and utilization:
Waters on private estates; Extent and nature of riparian rights; The rights of the owner of one
bank of a private stream; The rights of the owner of both banks; Construction of works in
private streams; Principles as to division of waters; Relative rights of large and of small
estates; Relative rights of upper and lower riparian proprietors; Transfer of riparian privi-
leges; Acquirement of rights by prescription; Division of riparian properties: Additions t<>
riparian properties; Ownership of the beds of streams; The right to rain waters on private
lands, and on public roads.
SECTION III — OWNERSHIP AND CONTROL OF SPRINGS: — The principles of the Roman law: Pri-
vate property in springs on private estates; Public ownership of springs on 'public lands; Con-
trol of spring waters on private estates; Acquired rights to use spring waters; Acts which con-
stitute prescription; Conflicting views on this point discussed; Opinions of Escriche, Lopez.
CIVIL LAW COUNTRIES: SPAIN. 13
and Gomez; Nature of the right by prescription; Right of conducting waters from a spring or
private source; Maintenance of channels or aqueducts.
CHAPTER XVIII — SPAIN (3); Old local Water-laws and Customs in
Spain.
SECTION I — OWNERSHIP AND CONTROL OF NATURAL STREAMS UNDER ANCIENT GRANTS :~="TTiG
case of the river Turia in Valencia; The grant by King James I of Aragon, in 1238; Adminis-
tration of the rights; Ownership and control in Murviedro, in Almansa.in Alicante, in Elche,
in Murcie, in Lorca, Nijar, Grenada, and a number of other localities; Under old grants and
customs.
SECTION II — WATER RIGHTS AND LANDHOLDINGS: — The water-right systems as connected with
huidholdings in each of the localities mentioned above.
SECTION- III — THE OUTCOME OF THE SYSTEM OF LOCAL CONTROL OF STREAMS : — Conflicting water
interests; Irrigation enterprise paralyzed; The safeguard of the union of land and water and
the inalienability of water rights.
CHAPTER XIX — SPAIN (4); Old local Irrigation Regulations and
Customs.
SECTION I — IRRIGATION ORGANIZATIONS : — The syndicate associations of Valencia, of Murviedro,
of Aimasa, of Alicante ; of Elche ; of Murcie; of Lorca, and other localities.
SECTION II — IRRIGATION REGULATIONS AND ADMINISTRATION: — The various rules and regula-
tions and the administration thereof in the above named and other localities.
SECTION III — SPECIAL WATER TRIBUNALS: — Organization and administration of justice, in irri-
gation affairs by the special water tribunals of Valencia, Lorca, and other localities.
CHAPTER XX — SPAIN (5); The new general Laiv of Waters for all
Spain. (Analysis of.)
SECTION I — RIGHT OF PROPERTY IN AND RIGHTS TO THE USE OF WATERS : — A — Waters upon
private property : (1) Rain waters and the waters of torrents; Rights to use and works for diver-
sion ; Limitation as to extent of utilization. (2) Waters of springs and other sources; Owner-
>hip of source waters, private ; Loss of control of such waters ; The old and the new law ; Extent
<>f right under the old law: Water power and irrigation rights; Priority of right in time of
drought; Obligations to return the water to its natural course. (3) Waters of streams or rivu-
lets on private property; Private streams defined; Utilizations of waters; Riparian rights;
Priority of privileges; Estates crossed and estates touched by the stream; Nature of prior
rights; Perfection of acquired rights; As between utilizers, first in time first in right; Rights of
the source owner; Forfeiture of his rights; Riparian proprietors only can utilize waters of pri-
vate streams; Return of surplus and unused waters; When public waters become private. (4)
Subterranean waters; The waters of ordinary wells; Protective distances between wells; Arte-
sian well waters ; Acquirement of rights to use artesian waters; Rights to sink artesian wells on
private lands. B — The waters of the public domain : (1) Rain waters and the waters of torrents
Privileges to use the waters of public torrents, arroyos, road drains; Prescriptive rights to use
these waters; Construction of works for the diversion of these waters; Liability of those who
erect such works; Waters of intermittent springs; Rights for storage works. (2) Drainage
waters from towns and public establishments, and waters discovered or developed on public
works. (1) Public ownership of these waters; Acquirement of rights to use; Riparian privi-
leges with respect to these waters. (3) The waters of public sources, springs, rivulets, and
14 CONTENTS: BOOK i; IRRIGATION LEGISLATION.
rivers; What waters naturally public; When waters become public; Acquirement of right to
use public waters; When official sanction necessary, navigable and non-navigable rivers.
SECTION II — GRANTS OF RIGHTS TO THE USK OF PUBLIC WATERS: — (1) Official sanctions or con-
cessions; Sanctions from the governors; Non-navigable river?, when machinery is not operated
by steam ; Limitations as to amounts ; Government concessions. (2) Proceedings to obtain offi-
cial sanctions and grants or concessions; Formalities as to applications, presentation of cases,
publications of intention, hearing of objections, examinations of projects, reports to central
administration; Authority of governors; Decisions of the administration: Subsidies to irriga-
tion enterprises; Auction sales of concessions; Grants without subsidies: Pledges, securities.
inspections, limitations as to time. (3) The terms of special grants or concession- : Protection of
prior rights; Priority of privileges; Development of subterranean waters: Responsibility of
new grantees as to damages to old rights; Forfeiture of grant by non-compliance : Surplus
drainage waters, public. (4) Grants for the use of public waters in irrigation : — Order of prefer-
ence in the use of public waters: Provision as to change of use; Duration of grants: Prevention
of waste of water; Continuous flow ; Prior rights; Lands for head works. (."») Rights to il.-v.-l.>],
subterranean waters on public lands: — Municipal sanctions: Government sanctions: n\vnership
of waters; Applications and formalities; Authority of governors ; Security deposits j Reserva-
tions with grants; Final concessions; Ownership of waters : Forfeiture, of rights.
SKCTION III — THE RIGHT OF WAY FOR WATERS:— The right for public canals: The right for
private canals; Cases wherein the right will be enforced; Applications to be made; The. right
by a common channel not allowed; Objections and opposition to rights ot way proceedings :
Permanent and temporary rights; Compensation; The right across r. .ids. oilier canals, etc. :
Character of channels; Occupation of lands during construction: Works at crossings: The
enlargement of constructed canals; Protection of rights; Repairs and maintenance of works:
Ownership and control of canals; Rights of land owners: I'ci.-rinination of width of old canals:
Forfeiture of rights of way; Annulment of rights of way; Disposal of forfeited works: Rights
of way in cities; Rights of way by private agreement; Rights to construct a dam on private
lands; Construction of works in canals.
SECTION IV — IRRIGATION, ORGANIZATION, AND ADMINISTRATION: — The province of the. admin-
istration; Government regulations: Authority of the administration; Jurisdiction of the court-.
Irrigating communities: — When communities may be formed; Syndicates to be elected : Laws
and rules to be adopted ; Memberships and qualifications; Representation of interests: Duty and
authority of syndicates; General assemblies; Financial assessments: Admission of new mem-
bers; General syndicates.
Tribunals of Irrigation : — Composition of tribunals; Functions and powers of tribunals:
Proceedings of tribunals; Ancient tribunals to be undisturbed.
Special privileges to irrigation enterprises: — Power of obtaining materials: Occupation of
public lands; Exemption from security deposits; Exemption from taxation of works : Special
privileges; The land tax remains the same for ten years; Subsidies; Water leases and obliga-
tions of irrigate rs.
CHAPTER XXI — SPAIN (6); Governmental Policy, and Irrigation Enter-
prise.
ANALYSES OF SEVERAL RECENT GENERAL LAWS CONCERNING .CANAL CONCESSIONS AND THE UTILIZA-
TION OF PUBLIC WATERS IN IRRIGATION.
Outline of subject-matter and formulation of the law of February 20, 1870.
Formalities to be observed in applications for and the issuance of permits to utilize public-
waters in irrigation.
Duties of communal, provincial, and general administrative authorities in the matter of the
issuance of permits for the utilization of waters.
CIVIL LAW COUNTRIES: SPAIN. 15
Ordering of consideration of applications; relative priority of applicants and claimants.
Guarantees of good faith and ability to perform and carry out the works required, and condi-
tions of forfeiture of grants preliminary to carrying out works.
Commencement, carrying forward, and completion, or forfeiture (in case of non-completion),
and sale (in case of forfeiture) of works.
Benefits accorded to concessionary companies; Tax subsidy; Collection of tax subsidies, etc.
Benefits, etc.: — Indemnities from interest; Exemptions from taxation, etc.; Declarations of
public utility.
Benefits to private enterprises: — Exemptions from taxation on increased values, etc.
Examinations of irrigation projects, and reports on the same. How paid for.
Reservations as to companies already formed and protection of existing rights by concession.
[NOTE. — The foregoing law repeals and amends a portion of the general law of 1866 of which
an abstract is given in the preceding chapter.]
A Royal decree of December 20, 1870, giving instructions at great length and in detail, for
the administration and observance of the forms and rules laid down in the preceding law of
February, 1870.
[NOTE. — Abstract of contents omitted here because of great length.]
An Order of the Governor of the Republic, concerning the establishment of Juries of Irriga-
tion, or special tribunals to consider and decide irrigation questions: dated March 20, 1873.
An Order of the Governor of the Republic, concerning the establishment of a department
within the Ministry of Public Works for examination and reporting on hydraulic questions of
public interest: dated March 29, 1873.
An order of the Governor of the Republic concerning the execution and observance of the
General Law of waters of August, 1866 : dated April 5, 1873.
A General Law concerning the useful employment of public waters in Irrigation and other-
wise, amendatory of the law of August, 1866 : dated June 13, 1879.
A Royal decree concerning a project for a new law governing concessions to water companies :
dated November 17, 1879.
A project for a new law for direct subsidies to companies carrying out irrigation works: dated
November 17, 1879.
A Royal order concerning the application of several articles of the law of June, 1879 : dated
September 5, 1881.
A Circular of the Director General of public works to the Governors of provinces concerning
the employment of public waters in irrigation : dated September 7, 1881.
[NOTE. — Later legislation of importance sent for and expected.]
CHAPTER XXII. — SPAIN (7); Governmental Construction and Manage-
ment of Irrigation Works.
Abstracts of the laws, decrees, and orders relative to the establishment, construction, main-
tenance, government, and operation, of the great public works of irrigation in Spain; the Royal
canal of Ar agon, the Imperial canal of Tauste, and others.
[NOTE. — Further reference to the contents of this chapter is omitted because of its considerable
length and the impossibility of outlining it adequately in a small space.]
CHAPTER XXIII. — SPAIN (8); Construction and Management of great
Works of Irrigation by Companies and Societies.
Abstracts of special laws and concessions of right to construct irrigation works by companies
and societies ; giving for Spain the same class of information as is given for France in Section II
of Chapter VIII, preceding.
16 CONTENTS: BOOK i; CIVIL LAW COUNTRIES.
E. — MEXICAN IRRIGATION LEGISLATION AND ADMINISTRATION,
CHAPTER XXIV — MEXICO (*); Ownership and Control of Waters a ml
Water-courses.
INTRODUCTION — General character of Mexico as an irrigation country; Characteristics of Mexi-
can irrigation enterprises and customs; Former connection of the country with, and the im-
planting of customs and rights in California.
SECTION I — FOUNDATION OF PROPKRTY RIGHTS, AND RIGHTS TO WATERS AND WATEK-I -<>\ ;.
The conquest of Mexico and early Spanish policy in Mexico; Forms of land titles and nature of
land holdings; Early-day agriculture in Mexico.
SECTION II — SPANISH LAWS RELATIVE TO MEXICO: — Laws concerning the colon ixat ion of New
Spain, and the settlement of the Indies; The •'* Recopilacion de leyex de las Reynos dc la* /W/'</.s- ".•
The laws governing settlements; The provisions concerning irrigation and waters fop all pur-
poses; Instructions to corregidores ; Special instructions to leaders of expeditions to form
ments, pueblos, missions, etc.
SECTION III — THE MEXICAN REPUBLIC AND THE SPANISH LAWS: — The independence of Mexico;
The retention of the Spanish laws relating to waters and water-courses and to lands : Some
general statutory laws of Mexico concerning the subject; Local growth <>f customs relating to
irrigation and the control of streams; Some State statutory laws relating to irrigation and the
regulation of water-courses.
CHAPTER XV— MEXICO (2); The General Law of Waters for all Mexico.
SECTION I — OWNERSHIP AND CONTROL OK WATERS AND WATER-COURSES'.
SECTION II — WATER RIGHTS AND PRIVILEGES; THEIR ACQUIREMENT AND i OKI i:rn I;K.
SECTION III — MEASUREMENT AND DISTRIBUTION OK WATERS AND THE CONTROL OK IRRIGATION.
[NOTE. — Under the above general headings this chapter contains a rearrangement of the gen-
eral law of waters for Mexico, as given by GALVAN in his Ordinanzas cie Tici-rax >/ At/n>i*.]
CHAPTER XXVI— MEXICO (3); State and local Irrigation (Juxtnm*
and Regulations.
SECTION I — COMMUNITY ORGANIZATION AND PUEBLO RIGHTS AND PROPERTIES.
SECTION II — STATE AND LOCAL WATER REGULATIONS AND ADMINISTRATION THKKKOK.
SECTION III — IRRIGATION CUSTOMS.
[NOTE. — Under the above headings this chapter contains the information for Mexico, so far as
available, analagous to that already given for Spain, under similar fitle lines, in preceding
chapters.]
BOOK II.
IRRIGATION LEGISLATION AND ADMINISTRATION IN COUNTRIES
UNDER THE COMMON LAW.
THE LAW OF WATERS AND WATER-COURSES, so FAR AS IT AFFECTS
IRRIGATION QUESTIONS, TOGETHER WITH THE STATUTORY LAWS,
THE CUSTOMS, AND GOVERNMENTAL POLICIES WITH RESPECT TO
IRRIGATION, IN COUNTRIES WHERE THE COMMON LAW PREVAILS
AND IN THE ENGLISH COLONIES.
INTRODUCTION. — The origin and development of the Common Law, and the physical, politi-
cal, and social circumstances which have molded it as respects the subjects of this report.
CHAPTER I— ENGLAND C1); The Right of Property in Water-courses
and Waters.
CHAPTER II — ENGLAND (2); Governmental Control, Improvement, and
Regulation of Water-courses.
CHAPTER III — ENGLAND (3); Natural or Riparian Rights to Water and
the Control of Water-courses.
CHAPTER IV — ENGLAND (4); Acquired Rights and Privileges to the use
. of Waters from public and private sources.
CHAPTER V — ENGLAND (5); Governmental Policy with respect to Water
supply, and the use of Waters for all purposes.
CHAPTER VI — ENGLAND (6); Irrigation in England; Its character,
extent, purpose, and relation to Water supply and Water-courses.
CHAPTER VII — INDIA C1); Ownership and Control of Water-courses
and Waters.
CHAPTER VIII — INDIA (2); Governmental Policy and Private or Cor-
porate Irrigation Enterprise.
CHAPTER IX — INDIA (3); Governmental Enterprise; Construction and
DIA ; overnmena nerprse;
Management of Irrigation Works.
CHAPTER X — INDIA (4); Irrigation Regulations and Customs.
221
18 CONTENTS: BOOK 11; IRRIGATION LEGISLATION.
CHAPTER XI — NEW ZEALAND; Ownership and Control of Water-cow
Governmental Policy in Waters Conservancy and Irrigation.
CHAPTER XII — VICTORIA; Oicnerdiip and Control of \Vafrr-eonrses;
Governmental Policy in Waters Uonservancy and I
CHAPTER XIII— NEW SOUTH WALES; Ownership and Control of Wafer-
courses; Governmental Policy in Waters Conservancy and Irrigation.
CHAPTER XIV — OTHER COLONIES; Oimc.rxldp and, Control of \Valer-
courses; Governmental Policy in Waters Conservancy ami
CHAPTER XV — UNITED STATUS OF AMERICA C1); Ownerxbi)) ami Con-
trol of Water-courses and Waters.
CHAPTER XVI — UNITED STATES (2); The use of Waters on flic Public
Domain.
CHAPTER XVII — STATES AND TERRITORIES C1); The L«ji*l<ition of
Texas, New Mexico, Arizona, Nevada, ete.
(CHAPTER XVIII— STATES AND TKRRI TORIES (2); llie L^/ix/alion of
Colorado, Montana, Idaho, Wyoming, etc.
CHAPTER XIX — CALIFORNIA (1); Oirnerxlu/t and Control of \}'ai<-r-
courses and Waters; The Mexican /air and tlie Common lair ///
California.
CHAPTER XX — CALIFORNIA (2); The Legislation of Wafcr-rii/Jd* and
Water -courses.
CHAPTER XXI — CALIFORNIA (3); The Legislation of Irr it/a/ion and.
Kindred Subject*.
CHAPTER XXII — CALIFORNIA (4); Irrif/ation ( Wowx, J!<'i/nfation*.
and Enterprise in California.
CONCLUSION AS TO LEGISLATION.
CHAPTER XXIII— The Water-right Conj/ief in California.
CHAPTER XXIV — Subjects for Legislation /rifh reject to Irrigation in
California.
CHAPTER XXV— A Water-riglf System f&r California.
CHAPTER XXVI — /In Irrigation Xi/stern, for California.
[Norn TO BOOK II. — Under the above given li^idin^.s, this book tivats the snhiocl «>( Irriga-
tion legislation, custom, and administration for the countries mentioned, in the. same manner,
with the same degree of fullness of detail, and in the same spirit, as Book I treats the subject
for countries where the Civii La\v prevails.]
BOOK III.
WATER SUPPLY AND IRRIGABLE LANDS IN CALIFORNIA
A. — PHYSICAL FEATURES OF CALIFORNIA.
CHAPTER I — The Mountains, Hills, and Valleys of the State.
GENERAL GEOGRAPHICAL FEATURES: — The Coast Range of mountains from the northern boundary
of the State to the San Francisco Kay region ; the region west of the Coast Range and north of
the Harbor of San Francisco: the Monte Diablo Range and the Coast Range, south of the Har-
bor of San Francisco to the Sierra de San Rafael in Santa Barbara and Ventura Counties: the
Bay region; the region west of the Monte Diablo Range; the Sierra San Rafael, Sierra Madre,
San Bernardino, and San Jacinto range of mountains, from San Luis Obispo County to the
southern boundary of the Stale : the region west and south of the last named range of mountains.
The Sierra Nevada range of mountains; the great Interior or Central Valley of California,
composed of the Kern. Tulare, San Joaquin, and Sacramento Vallevs; the region north of the
Sacranu-'nto Valley, and cast of the Coast Range; the region east of the Sierra Nevada Moun-
tains. from the Oregon border to the Lake Tahoe basin; the Tahoe basin; the region east of the
Sierra Nevada Mountains, and south of the Tahoe basin to the Mojave desert ; the Mojave desert;
the Colorado desert.
NOTK. — Tudor the above headings this chapter will contain, within about 15 to 20 pages of
printed matter, a general description of the geography and topography of the State, written
expressly with the view of laying the foundation for an understanding of the more detailed
descriptions, and the discussions of the subjects of water-shed areas, rainfall, drainage, water-
courses. water supply for irrigation, and irrigable lands, which are to follow. This chapter refers
for illustration to the Topographical map of California — scale 30 miles in the inch — one of the set
of small scale general maps of the State which have been prepared for the atlas collection, and as
accompaniments of this report. It should be illustrated by a double page wood-cut map of the
Stale, reduced from that above named, and bound in with the matter of this volume.
CHAPTER II — The Rainfall, Drainage, and River Systems of California.
HYDUOGRAPHICAL LAWS OF THE PACIFIC COAST REGION: Influences of mountain ranges
on rainfall in California; Collection of statistics of rainfall; Construction of a rainfall chart
for the State: Distribution of rainfall in the State; Maximum and minimum periods of rain-
fall; Years of ordinary precipitation ; Years of flood and years of drought; Necessity of much
more extended and widespread observation; A State weather service, similar to those of Iowa,
Ohio, and other States, working with the United States Signal Service bureau.
The water-shed areas of California, and the streams which drain them; Of the region drain-
ing into the ocean north of the San Francisco bay region ; Of the coast region draining into
the San Francisco and San Pablo bays : Of the region draining into the ocean south from the
bay of San Francisco to Point Conception ; Of the region draining into the ocean south of Point
Conception; Of the region draining into and of the Central Valley of the State; Of the region
draining east from the Sierra Nevada mountains; Of the region draining into the Mojave
desert; Of the region draining into the Colorado desert; The Colorado river.
20 CONTENTS: BOOK in; PHYSICAL PROBLEMS.
NOTE. — Under the foregoing headings this chapter will contain, within 25 to ::u
of printed matter, a general discussion of the subject of rainfall in the Pacific Coast region.
and particularly in California; an account of rainfall statistics collected in and for California,
and of the making of a rainfall chart from them; together with a presentation of the sum-
marized results of this study. It will also contain a general description of the individual \\ air-
shed zones of the state — their altitudes, areas, general characters, exposures, rainfall, and
drainage; a general description of the main streams which collect from these areas- -I heir
characters, courses, and volumes of flow (approximately): and a general review of the -uhj<vt
of water supply for irrigation in the state at largo.
The description of the drainage areas of the state, while, of course, not based upon complete
data, is written from much information never before cpmpiled, and, for the general pur)><
the report, will be quite satisfactory at least for the regions where the study has be. MI carried
forward by this department, as indicated in the chapter following.
The rainfall statistics referred to in this chapter, and upon which much of its matter is based.
are by far the most complete and extended tables ever collected for the state, and will be annexed ,
in a summarized form, to this book as an appendix.
The present chapter will refer for illustration to the General Drainage-Area Map of tin- si
scale, 12 miles in the inch — and to the Rainfall Chart — scale, 30 miles in the inch — the former
prepared specially as an illustration of this subject, and the latter for a like purpose and also as
one of the set of atlas sheets for independent publication. The letter press should be illustrated
by several double and single page wood cuts prepared from these maps and from numerical
data on hand.
In the final writing of this chapter it may be found advisable to divide its matter and make
two chapters of it.
CHAPTER III — The Water supply for Irrigation.
THK RKGION WHERKIN OBSERVATIONS HAVE BEEN MADE BY THE STATE ENGINEERING DEI'MM'MKS I :
The nature, extent, and value of those observations: Methods of observation and of com-
pilation of results; The general subject of observation and recordation of the flow of stream-.
THE GREAT CENTRAL VALLEY OK CALIFORNIA: — Its streams, and their Hoods and failures ot
supply; The streams which enter the Sacramento valley from the Coast Range south of lied
Bluffs; The Sacramento river; The streams which enter the valley from the Sierra Neva-la
mountains north of Feather river ; The Feather river; the creeks between Feather and Yuba
rivers; The Yuba river; The creeks between Yuba and Bear rivers: The Hear river: The
creeks between Bear and American rivers; The American river; The creeks between American
and Cosumnes rivers; The Cosumnes river; The streams between the Cosumnes and the
Mokelumne rivers; The Mokelumne river : The streams between the Mokelumne and Stanis-
laus rivers; The Stanislaus river; The creeks between the Stanislaus and Tiiolumne rivers;
The Tuolumne river; The creeks between the Tuolumue and Merced rivers: The Merced
river; The streams between the Merced and the San Joaquin river : The San .loamiin river;
The creeks between the San Joaquin and Kings river; The Kings river; The creeks between
the Kings river and the Kaweah ; The Keweah river; The streams between the Koweah and
Kern river; The Kern river; The creeks which enter the San .Ioa<|iiin valley from the Coast
Range.
THE Los ANGELES AND SAN BERNARDINO VALLEYS : — Their streams and water supplv : The Los
Angeles river; The San Gabriel river; The Santa Ana river: Canons intermediate between
these rivers.
NOTE. — Under the foregoing specific headings, within the space of 2.3 to ."0 printed pa^os. this
chapter will contain a summarization of the information concerning the llo\v of stream-
flood, low, and ordinary — which has been collected by observations, cursorv'and definite, made
by the State Engineering department during the period of its existence', and collected from
reliable sources.
This chapter will refer to an appendix for tabulated data in detail, and. for illustration to the
General Drainage-area Map.
It should be illustrated by a number of wood cut diagrams, graphically presenting the data
arranged in tabular form in the appendix.
It is, perhaps, needless to say that although one of the least interesting to the general reader,
this is one of the most important chapters of the work.
WATER SUPPLY, ETC., IN CALIFORNIA. 21
CHAPTER IV — Underground Water supply for Irrigation.
THK SUBTERRANEAN FLOW OF STREAMS ; Identification of waters ; Development of waters ; Oie-
negas, or flowing marsh-springs of Southern California; Artesian wells and water supply.
NOTE. — Under the above specific headings, for the several regions of the Sacramen-topftan
Joaquin, Tulare, Kern, Santa Clara, Los Angeles, and San Bernardino valleys, and some other
limited localities, will be grouped, within about 25 to 30 pages of printed matter, the substance
of the data collected on ihe subject of underground water supply and its development; together
with discoveries of the problems involved, and the deduction of some conclusions which may
be of special value.
The chapter will refer to an appendix for detailed descriptions of the results of work in the
several quarters; and should be illustrated by a number of wood engravings prepared from the
numerical and other data given, and also for illustration of the discussions advanced.
B. — WATERS, LANDS, AND IRRIGATION IN CALIFORNIA.
CHAPTER V — The Hydrographic Districts of the State.
THE REGIONS WHERE THE WATEK SUPPLY IS, IN EACH, MEASURABLY INDEPENDENT OK THAT IN
OTHERS:— The region of the Sacramento valley; The region of the San Joaquin valley; The
region of the Tulare and Kern valley; The region of the San Bernardino and Los Angeles
valleys.
NOTE. — Under the above general headings, within the compass of 25 to 30 printed pages, will
be given in this chapter a general description of the irrigable portions of the regions named, of
the stream channels through them, and the topographical relation of these water supply sources
and the lands to which the waters may be conducted. This account is preliminary to a more
detailed discussion of the subject of irrigation districts contained in the next chapter.
The present chapter will refer to the contour line topographical map of the great central
valley of the State — scale, six miles in the inch; to the special river maps of the valley, and to
the topographical map of the San Bernardino and Los Angeles valleys, for illustration; as also
to numerical data in tabular form found in an appendix.
CHAPTER VI — Irrigation Districts.
THK REGIONS WHICH MAY BE IRRIGATED TO THE BEST ADVANTAGE AND ECONOMY BY ONE SET
OF WORKS AND UNDER ONE MANAGEMENT: — The character of the irrigable lands; The probable
cultivations of the future; The duty of water; The probable irrigation works of the future:
The extent of possible irrigation ; Irrigation of mountain valleys ; Irrigation of foothill regions ;
Irrigation of reclaimed swamp lands.
Probable clashings of interest; Probable unification of interests; Gradual development of
irrigation districts; Probable future changes in their outlines; Impracticability of a rigid system.
NOTE. — The foregoing general headings indicate with sufficient clearness the character of mat-
ter which will make up this chapter. It will be a general discussion of the subject of outlining
irrigation districts, as they are required or desired to be formed in the state; will be based on
the data, as to lands, water supply, duty of water, cultivations, etc., collected by the depart-
ment; and will relate specially to the Sacramento, San Joaquin, Tulare, Kern, Los Angeles,
and San Bernardino valleys.
The matter will occupy 25 to 30 pages of print; and will refer to the topographical maps of
the valleys named, and of the rivers in those valleys for illustration.
CHAPTER VII — Water-rights in the Irrigated Districts of California.
EXISTING CLAIMS TO WATER, AS RECORDED AND PUBLICLY ANNOUNCED; EXISTING APPROPRIATIONS
OR DIVERSIONS OF WATER; EXISTING USES OF WATER.
NOTE. — Under the above general headings, for the regions of the San Joaquin, Tulare, Kern,
Los Angeles, and San Bernardino valleys, will be given the general results of the work of
examining the records of water claims, the measurements of the water diversions, and the
observations of extent of use of waters, made by the State Engineering department.
The chapter will take about 25 to 30 pages of printed matter, and will refer to several exten-
sive appendices in which will be found the data from which it has been written.
22 CONTENTS: BOOK in; PHYSICAL PROBLEMS.
C. — THE FUTURE OF IRRIGATION IN CALIFORNIA.
CHAPTER VIII— Physical Effects of Irrigation(l).
IRRIGATION AND THE ARTERIAL DRAINAGE OF THE COUNTRY:— Irrigation and the prevention of
floods; Irrigation and navigation ; Irrigation and reclamation ; Irrigation :m<l the debris prob-
lem j The reproduction of waters.
NOTE. — Under the above general headings, there will he found in this chapter a di-cussion of
those physical effects of irrigation which closely concern the water supply problems and the
usefulness or efficiency of the natural streams of a. country: together, in all cases, with a direct
application to the practical questions which will come up in California as irrigation is extended.
The local applications are made upon the hasis of the surveys of <>ur streams, the study of the
water supply, and of the question of demand likely to he made for irrigation purposes.
CHAPTER IX — Physical Effects of Irrigation^).
IRRIGATION AND LAND DRAINAGE: — The rising of soil waters; Irrigation and soils: Physical
effects on soils; Chemical effects on soils: Changes in character of plant growth : Irrigation with
muddy or silt charged waters; Systematic colmatage,or warping of lands; Irrigation and under-
ground water supply.
. — Under the above general headings, this chapter will contain a discussion of those
effects of irrigation which pertain to the lands irrigated, and the necessities which theivhy arise;
as, also, some mention and description of the working of other uses of wate>- in ways analog, Us
to irrigation methods. The practical application will he made to the eeveral chief irrigation
regions of our State, and illustrations will be introduced from h '.me experiences.
CHAPTER X — Physical Effects of Irrigation (8).
THE CLIMATIC AND SANITARY EFFECTS OK IRRIGATION : — Hum id i ty and temperature of the air:
Rainfall, and irrigation ; Sanitary effects of irrigation ; Origin of malarial influence; Influence
of soils, subsoils, and cultivations: Unhealthful effects of certain cultivations; Influence of
waters; Irrigation with muddy waters; Irrigation with sewage- waters.
NOTE. — Under the above general subject headings, the present chapter will contain a discussion
of those effects of irrigation pertaining to healthfulness of the irrigated districts, together with
their practical bearing on the future of irrigation in the several regions lor irrigation in California.
CHAPTER XI — Conservation of Waters for Irrigation, /// ('<iliiin-ni<t.
PRESERVATION AND EXTENSION OF FORESTS; The influence of forests on water supply; The
destruction of forests in California; Reforesting of mountains: The necessities of the future: The
system of the future; Storage; Economy of delivery.
NOTE. — In this chapter will be found a discussion of the subject of forestry and water supply
hased upon the data collated by the best authorities, and the opinions of the leading writers on
the topic. The legislation of other countries will be summarized and a system sketched out for
application under our conditions and political system.
CHAPTER XII — The Practical Problems of lrri</<iti<>n reviewed for ('<t!i-
fornia.
FUTURE EXTENSION OF IRRIGATION: — Irrigation populations; Irrigation and capital: Water
right systems; Sale and distribution of waters : Irrigation enterprise; Necessary systemizatioii of
irrigation and arterial drainage.
NOTE. — Under the above subject headings the whole problem of irrigation as presented for
the future in California will be reviewed, in the light of the study of its legal, social, political,
iinancial, and physical elements, which have now been gone through with.
BOOK IV.
EXISTING/PROJECTED, AND PROBABLE WORKS AND IRRIGA-
TIONS IN CALIFORNIA.
CHAPTER I — Early Irrigation in San Bernardino and Los Angeles
counties.
OLD SPANISH AND OTHER SETTLEMENTS: — The Pueblo of Los Angeles: The Mission of San
Gabriel; The Mission of San Fernando; The Mormon settlement of San Bernardino; The Mex-
ican settlements on the San Gabriel; Early utilization of the waters of cienegas; Other small
local works.
NOTE. — The valleys of Los Angeles and San Bernardino were the scenes of irrigation practice
long before the acquirement of this territory by the United States, and as these were the pio-
neer irrigations, worthy of note, in the state, I devote a chapter to a brief sketch of their history.
CHAPTER II — Irrigation in San Bernardino valley.
The works deriving waters from the Santiago, Temescal, Ucuipa, and San Timoteo creeks.
The works deriving waters from Mill creek and the Upper Santa Ana river.
The works deriving waters from Plunge, City, Twin, Devils canon, Cajon, and Lytle creeks.
The works deriving waters from Sainsevain's, Day's, Smith's, Reid's, and Clark's canons, and
Cucamongo, and San Antonio creeks.
The utilization of waters from cienegas and artesian wells in San Bernardino valley.
The cultivations and irrigations in the settlements of Riverside, Redlands, Old San Bernar-
dino, San Bernardino, Lytle creek, Etawanda, Ontario, Cucamongo, Pomona, and others.
New or projected works and irrigations in and for the San Bernardino valley district.
CHAPTER III — Irrigation in tlie Upper San Gabriel valley.
The works deriving waters from Puente creek, and San Dimas and Dalton canons.
The works deriving waters from the Upper San Gabriel river.
The works deriving waters from the Fish, Sawpit, Santa Anita, Little Santa Anita, Bailey,
Davis, Precipice, and Arroyo Seco canons.
The utilization of waters from cienegas and artesian wells in the Upper San Gabriel valley.
The cultivations and irrigations in the settlements or neighborhoods of Puente, Asuza, Santa
Anita, El Monte, San Gabriel, Pasadena, and Sierra Madre.
New or projected works in and for the Upper San Gabriel valley district.
CHAPTER IV — Irrigation in the San Fernando and Los Angeles valleys.
The works deriving waters from the Arroyo Seco, Verdugo, and Tejunga canons.
The works deriving waters from the Los Angeles river.
The utilization of waters from cienegas and from artesian wells in the Los Angeles valley.
The irrigations and cultivations in the pueblo of Los Angeles.
24 CONTENTS: BOOK iv; PRACTICAL PROBLEMS.
The irrigations and cultivations in the several other neighborhoods in the valleys of Los
Angeles and San Fernando.
New or projected works in and for the valleys of San Fernando and Los Angeles.
CHAPTER V — Irrigation in the Lower San Gabriel river district.
The works deriving their waters from the Old river.
The works deriving their waters from the New river.
The utilization of waters from cicneqas and artesian wells, Lower San Gabriel district.
The cultivations and irrigations in the several settlements of Lower San Gabriel district.
New or projected works for the Lower San Gabriel river district.
CHAPTER VI — Irrigation in the Lower Santa Ana river district.
Irrigation works from and northwest of the Santa Ana river.
Irrigation works from and southeast of the Santa Ana river.
The utilization of waters from cienegas and artesian wells in Lower Santa Ana district.
The cultivations and irrigations in the several settlements of the Lower Santa Ana district.
New or projected works for the Lower Santa Ana river district.
CHAPTER VII — Irrigation in several other localities of the extreme
Southern counties.
Irrigation works, practice, projects, in several districts of San Diego, San Bernardino, Los
Angeles, and Ventura counties, not mentioned in the preceding six chapters.
CHAPTER VIII — Irrigation in Kern county.
Irrigation works and practice of and from Kern river.
The works in the district between "Old South Fork" and "Old River" channels of Kern
river.
The works in the district between Old River channel and the present channel of Kern river.
The canal works in the district lying between Kern river channel and Goose lake slough.
The canal works in the district known as Swamp land Districts No. 121, 184, 185, and 2os.
The canal works in the district north of Kern river and the district third above named.
The canal works in the district south of Kern river and the district first above named.
The artesian wells in Kern county and the utilization of waters from them.
The cultivations and irrigation practice in the districts of Kern county above named.
Projected works and possible extension of works and irrigation in and for the districts named.
CHAPTER IX — Irrigation in Tkdare county, exclusive of that from Kimj*
river and that in the Mussel Slough district.
The canal works and irrigations in the district south of the Kaweah river irrigations.
The canal works and irrigations deriving water supply from the Kaweah river, but exclusive
of those for the Mussel Slough country.
The artesian wells and irrigations therefrom in the districts above described in Tulare county.
The cultivations and irrigation practice in the districts above described.
Projected works and possible extension of works and irrigations in the districts above described .
IRRIGATION IN AND FOR CALIFORNIA. 25
CHAPTER X — Irrigation in Tidare county, from Kings river and in the
Mussel Slough district.
The "Seventy-six" and other Upper Kings river south side works.
The People's, Mussel Slough, Last Chance, Lower Kings River, and Rhoads' ditches in Hie
Mussel Slough country.
The Settlers and Lakeside ditches in the Mussel Slough country.
The artesian wells in the Mussel Slough country.
The cultivations and irrigation practice in the districts supplied by the works above named.
Projected works and possible extension of works in the districts above named.
CHAPTER XI — Irrigation in Fresno county from the Kings river and
San Joaquin river, and in the district between them,.
The Kings River and Fresno canal and the irrigation therefrom.
The Fresno canal company's canal and the irrigation therefrom.
The Centerville and Kingsburg company's canal and the irrigation therefrom.
The Fowlers Switch company's canal and the irrigation therefrom.
The Emigrant company's canal and the irrigation therefrom.
The Liberty canal and the irrigation therefrom.
The Upper San Joaquin River company's canal works and projected extensions thereof.
The cultivations and utilizations of water, generally, in the districts of the above works.
Projected works and probable extension of old works and irrigation in the districts commanded
by the above named works.
CHAPTER XII — Irrigation on the east side of the San Joaquin valley,
between the San Joaquin and Merced rivers.
The Chowchilla canal and the irrigations therefrom with waters of the San Joaquin river.
The canal works and irrigations deriving supply from the Fresno river.
The canal works and irrigations deriving supply from the Bear, Mariposa, and Dry creeks.
The Farmers' canal, deriving water from the Merced river, and the irrigations therefrom.
The artesian wells in the region between the San Joaquin and the Merced rivers.
The cultivations by irrigation in the region above described.
Projected and possible works and probable extension of works and irrigations in this region.
%
CHAPTER XIII — Irrigation on the west side of the San Joaquin valley.
The San Joaquin and Kings River canal company's works.
The irrigations from the San Joaquin and Kings river canal.
The cultivations by the waters of the above canal.
Artesian wells, and the utilization of the water thereof.
Projected or possible works for the extension of irrigation in this region.
CHAPTER XIV — Irrigation in Stanislaus and San Joaquin counties.
The canal works and irrigations from the Merced river on the north side.
The canal works and irrigations from the Tuolumne river.
The canal works and irrigations from the San Joaquin river.
The canal works and irrigations from the Calaveras river.
The canal works and irrigations from the Mokelumne river.
Works and irrigations with waters of the Cosumnes river.
Artesian wells and utilization of the waters thereof in the region above described.
26 CONTENTS: BOOK iv; PRACTICAL PROBLEMS.
The cultivations by irrigation in the region above described.
Projected or possible new works and probable extension of existing works.
CHAPTER XV — Irrigation in the Sacramento valley (east side}.
Works and irrigations with waters of the American river.
The Natoma Land and Water company's works and irrigations.
The North Fork of American company's canal, and the irrigations therefrom.
Works and irrigations with the waters of Yuba river.
The Excelsior canal company's works and irrigations.
The works and irrigations from the creeks in Butte and Tehama counties.
The Stanford canal near Vina and the irrigations therefrom.
Cultivation by irrigation in the regions above described.
Projected and possible works, extensions of works, and the possibilities of irrigation in thf
region above described.
CHAPTER XVI — Irrigation in the Sacramento valley (west side}.
Works and irrigations deriving waters from Cache creek.
Projected works from Cache creek and possible extension of Cache creek irrigation.
Projected works of irrigation from Putah creek and possible irrigation from thi> source.
Projected irrigation from Stony creek and possible irrigation from this source.
Projected or possible works from the Sacramento river.
Utilization of well waters in irrigation within this region.
Cultivation by irrigation within this region.
CHAPTER XVII — Irrigation from mining ditches in the foothill un<l
mountain regions of Mariposa, Tnolnmne, Calaveras, Amador, El
Dorado, Placer, Nevada, Sierra, Plumas, and Butte counties.
[NOTE. — The data for this chapter is not complete; but will be quite full tor HI Dorado. Placer,
and Nevada counties, and parts of Butte, Amador, and Calaveras. J
CHAPTER XVIII — Irrigation in Shasta, Sisldyou, (in<! Modoc count irx.
[NOTE. — There has not been any data collected for this chapter.]
$
CHAPTER XIX — Irrigation in Mono and In</<> conn tic*.
[NOTE. — There has not been any data collected for this chapter.]
CHAPTER XX — Irrigation in Santa Barbara, San Luis Obispo, Mon-
terey, Santa Cruz, and San Benito counties.
[NOTE. — There has not been any data collected for this chapter.]
CHAPTER XXI — Irrigation in Santa Clara and Alameda cntrniirx.
[NOTE. — There has not been any data collected for this chapter.]
CHAPTER XXII — Summarized Statement as to existing Irri<j<ili<nt
Works and possible Extension of Irrigations in California.
[NOTE. — This chapter will be full so far as the preceding chapters furnish the info
BOOK V.
THE DISTRIBUTION OF WATERS AND THE PRACTICE OF
IRRIGATION.
CHAPTER I — Irrigation in its relation to Agriculture.
The province of irrigation, with respect to its immediate fertilizing and moistening effect on
soils and plants, and other results sought by the agriculturist, considered in its relation to differ-
ent soils, cultivations, climates, and peoples, and especially with respect to Californian circum-
stances.
CHAPTER II — Methods or Systems of Irrigation.
The ways of preparing lands for and conducting irrigation work, considered with respect to
quantity of water supply, extent of lands, character of soil, nature of cultivation, peculiarities
of climates and agricultural populations, and general customs of people.
CHAPTER III — Cultivation of special Crops by Irrigation.
The necessity for, utility of, preparation for, and the conducting of irrigation, with respect to
special crops or cultivations — such as fruits, vineyards, vegetables, cereals, meadow grasses, other
forage plants, sugar cane, rice, etc. — and under varied conditions of soil, climate, extent of water
supply, and agricultural populations.
CHAPTER IV — The Duty of Water in Irrigation.
A compilation and summarization of the known results of irrigation, as to the question of the
area of lands irrigated by any given unit measure of water, or, conversely, the quantity of water
required to irrigate any given area of land during a recognized irrigation season, under the
varied circumstances of soil composition, drainage, crop cultivation, climate, preparation of lands,
method of irrigation, and delivery of water; together with a discussion of the principles involved
in the problems of the economical use of water.
CHAPTER V — The Cost and actual Value of Irrigation (gravity systems).
A compilation and summarization of the known results of irrigation as to the cost of works
per acre irrigated; the cost of water per crop, per area served, or per unit of measure, when
bought; the cost of preparing lands for irrigation; and the cost of conducting the operations of
irrigation per season, and per acre, or per crop; and also a compilation of statistics as to the
financial returns from irrigation enterprise, works, and practice, in the matters of crop produc-
tion and increased land values.
CHAPTER VI — The Cost of Raising Water for Irrigation.
A summarization of information available as to the cost of pumping water for irrigation, by
steam, wind, horse, and water power, with tables for data applicable for estimating on such cost
under varying conditions of delivery, and cost of fuel, etc.
28 CONTENTS: BOOK v; TECHNICAL PROBLEMS.
CHAPTER VII — Methods of Distribution and Delivery of waters for
Irrigation.
A discussion of the various systems of selling, leasing, dividing out, and delivering waters —
as by volume, by service, and by time or season — together with a compilation of rules of deliv-
ery, of administration, and of management of works in partitioning out waters to customers, in
vogue in California and many other irrigation countries.
CHAPTER VIII — Measurement of flowing Water*.
A description of the various methods of measuring or estimating the amount of water flowing
in open canals and aqueducts, over weirs and falls or drops, through sluices under pivssiuv. ami
in pipes, with illustrations of apparatus required for simple cases, and with tables to facilitate
calculations.
CHAPTER IX — Modules and Partitioners for dividing and </r///vr/////
Waters.
Descriptions and illustrations of the various devices designed and vised in different countries
in meting out waters for irrigation, where it is desired to deliver a constantly uniform How:
and also in cases where it is desired to divide a flowing stream into proportionate parts at all
stages of its flow, together with a discussion of the principles upon which these are designed.
and the value to be placed upon them to accomplish their purpose in practice.
CHAPTER X — General Results of Irrigation Practice.
A description of results usually attending long-continued irrigation practice, in the matter.-
of effects on drainage, rising of soil waters, reproduction of waters in springs or channels at
lower levels, rising of ground levels from deposits of silt by the waters used, le.ae.hing out of
soils, rising of alkali from subsoils, etc., together with citation of noted examples of ea'-h. and
rules for overcoming to some extent the bad eilerts produced.
BOOK VI.
WORKS FOR THE INTERCEPTION AND STORAGE OF WATER
FOR IRRIGATION.
CHAPTER I — Sites and Dams for Reservoir*.
A classification of reservoir sites according to the topographical features of a country. Short
period interruptions— as in the presas of Mexico, the estanques of Spain, and the bunds, or shal-
low tanks of India. Long period storage in deep reservoirs. Mountain valley and canon, hill-
land valleys, and other sites considered. The various kinds of dams suitable for the several
sites and purposes spoken of. Essentials of an efficient dam, and the importance of a lary-e
margin of safety in planning dams. • Materials for the construction of darns; their examination
and selection. Sites and foundations for dams ; their examination and selection.
IRRIGATION WORKS IN AND FOR CALIFORNIA. 29
CHAPTER II — Earthwork Dams and Embankments.
Simple embankments of earth of various kinds; Earthwork dams with puddle walls, and
with spiling walls. Selection of sites for earthwork dams. Examination and preparation of
foundations. Examination and selection of materials.
Planning and proportioning of embankments. Processes of construction. Finishing off of
embankments: Paving, graveling, turfing, planking, etc.
Examples of great and small embankments and dams, with illustrations of plans and statis-
tics of cost, so far as available.
CHAPTER ITL—Tvmber Dams.
Dams in which timber is the chief component material: Framed or cribbed timber bolted
down, and with planking; The same also loaded with rock, gravel, or other ballast. Selection
of sites for such dams. Preparation of foundations, etc.
Planning, proportioning, processes of construction, and finishing off of such works.
Examples of dams of these descriptions, with illustrations and statistics.
CHAPTER IV — Rock Dams, of the Californian Mining type.
Dams in which roughly quarried rock masses, laid without timber cribwork, and without
coursing or cementing, forms the body of the structure. Selection of sites and materials. Exam-
ination and preparation of foundations.
Planning, proportioning, processes of construction, and finishing of dams of this class.
Examples and illustrations of dams of this class, statistics of cost, so far as available, etc.
CHAPTER V — Masonry Dams; Spanish, French, and Belgian.
Dams composed of stonework laid up solidly, well bedded and cemented.
Sites, foundations, materials, and preparations thereof for dams of this class.
Planning, proportioning, laying out, construction, finishing, etc., of such works.
Examples and illustrations of the great dams of this class in the world, with statistics and
accounts thereof, so far as available.
CHAPTER VI — Outlets, Gates, and Galleries to Reservoirs.
Methods and plans, with illustrations, for drawing the waters off from reservoirs, through,
under, or around dams of the several kinds described, in or on foundations of the various char-
acters found in practice.
CHAPTER VII — Failures of Reservoir Dams.
A discussion of the causes of failure of reservoir dams, with illustrations, and accounts of a
number of cases of great failures.
CHAPTER VIII — Cost of Reservoir Works.
A compilation and summarization of the cost of storing water in reservoirs so far as statistics
are available.
The comparison of the costs of dams of the various kinds described, with reference to a num-
ber of storage sites examined in California.
Sources of and amount or proportion of loss of water stored. Evaporation and percolation.
Efficiency of a storage work with allowances for shortage in delivery.
CHAPTER IX — Accounts, Plans, and Statistics of great Storage Reservoirs.
The great " tanks " of India and Ceylon ; The " pantanos " of Spain ; The " presas " of Mexico :
The reservoirs of England, California, and elsewhere in the United States.
BOOK VII.
WORKS FOR THE DIVERSION, CONDUCTING, AND DISTRIBU-
TION OF WATERS IN IRRIGATION.
CHAPTER I — Dams for the Diversion of Water from streams.
The several classes of dams for this purpose : Their adaptability under various stated circum-
stances,- Their use in different countries; Their relative advantages and disadvanta.
The general practice as to works of this kind in India, Italy. Spain, France, and >.>im- exam-
ples in California.
CHAPTER II — Immovable, Overfall Dum*.
Dams immovable, and built of various materials — such as brush with rock or gravel ; timber
and lumber with rock, gravel, or sand : rock or stone without cement or mortar: rock, stone, or
brick with cement or mortar.
Foundations for and adaptability of each of these works. Planning and construction.
Examples and illustrations of noteworthy works of the several kinds, now in existence.
CHAPTER III — Movable Dams.
Dams made so as to be automatically or otherwise removable for the purpose of leaving a
free waterway during floods.
Double, falling, shutter dams of the Indian type.
The Poiree and the Chanoine iron-frame and wooden-needle dams.
The Desfontaine drum weir.
The Thenard and Mesnager double shutter Aveir.
The Kraus pontoon weir, etc.
Adaptability of these works: Their cost, planning, and construction.
CHAPTER IV — Headworks and Regulators for Canal*.
The various kinds of works applicable and used for governing and regulating the flow of
water into canals.
General planning and disposition of such works at the heads of canals and in connection, or
not, with dams of diversion.
Descriptions and plannings for works of this kind built of various materials, si/es, ami forms.
Descriptions and illustrations of notable works of this character in India, Italy, Spain, and
elsewhere.
CHAPTER V — Canals and
The exploration for, planning, laying out, and construction of canals and ditches.
The questions of capacity, sectional dimensions, grade slopes, velocity of flow, transportation
of sediment, erosion of beds, silting, etc., considered.
IRRIGATION WORKS IN AND FOR CALIFORNIA. 31
Classification of canals according to use and purpose, with discussion of the characteristics of
class.
Descriptions and illustrations of a number of notable existing works, great and small, in
other countries, and of some in California, also.
CHAPTER VI — Aqueducts and Flumes.
Open channels, other than cut and embanked canals, for conducting and conveying water.
Aqueducts of stone, brick, cement, and iron ; their designing, laying out, and construction.
Flumes of wood; their adaptability, designing, and construction.'
Notable examples of works of these several kinds now existing in France, Italy, India, or in
California.
Descriptions, illustrations, statistics of construction, and cost.
CHAPTER VII — Pipes and Syphons.
Closed channels or conduits for conducting and conveying water under pressure.
Syphons of brick, stone, or cement masonry for conveying the waters of one canal under the
channel of another water-course.
Iron pipes for conveying water under pressure across depressions.
Pipes of iron, wood, earthenware, cement, etc., for the conveying and distribution of water
in irrigation.
Descriptions and illustrations of a number of notable constructions of these classes.
CHAPTER VIII — Regulators) Drops, and Overfalls.
Constructions designed for and placed in the channels of canals to regulate their flow by
diminishing the grade slopes of their waters above and admitting of sudden falls in the waters
nt the structures themselves, so as to start the channels at lower planes below.
Classification and description with respect to materials and class of construction and volume
of water to be handled.
Description and illustrations of notable works designed and serving for this purpose in the
great canals of India, Italy, and Spain.
CHAPTER IX — Outlets and Module*.
Works for the drawing oft' of water from canals and distributaries, and for meting out stated
volumes of flow in distribution.
The classes of these works with respect to the service to be performed and the materials to be
employed in their construction.
Theory and practice of design and construction.
Descriptions and illustrations of structures in use in various irrigation regions.
CHAPTER X — Operation and Maintenance of Works.
The operations of caring for, cleaning, repairing, and otherwise maintaining in good condi-
tion, canals, aqueducts, and other irrigation works.
Machinery and appliances used in these operations.
Regulations and customs governing these operations in the great irrigation regions.
CHAPTER XI — Artesian Wells.
The construction of artesian wells, as practiced in France and other European countries, and
in California.
32 CONTENTS: BOOK vn; IRRIGATION WORKS.
Descriptions and illustrations of the apparatus and machinery used in construct ion.
Statistics of artesian well construction and cost, so far as available.
EXTRACT FROM INTRODUCTORY LETTER,
To his Excellency GEORGE STONEMAN, Governor of California:
SIR; * » » » « •:•:-
In the preparation of this report, it is sought to keep constantly in view the legitimate j,
of the work; namely, the promotion of agricultural prosperity by irrigation in California.
It is believed that this is to be accomplished by the establishment of a thorough general under-
standing of The Problems of Irrigation on the part of those who have to do with its pr.
and those who are charged with the making of laws to foster and control its development.
The subject is a great one, presenting many phases. It has its legal, social, political, economic,
physical, technical, and practical problems. He who would understand this subject mu.-.t look
well to these, one and all.
There is a vast fund of experience had in other countries, that carries its general ]es~i ns. which
we cannot, with reason, neglect; but these must be studied systematically, else we I.,- led into
errors by overlooking some governing conditions not apparent to the less thorough
The literature holding these data is very voluminous, for the most part in foreign lan-_r-
and itself far from systernatiized. It is simply a great labor to collect and go through will, it and
cull out, compare, judge of, and arrange its useful materials, and draw and apply practical les-
sons from these.
In addition to the study of the irrigation questions as founded on apparent conditions around
us here, I have endeavored to bring to our enlightenment, by the results of such labor, (Il-
legitimate outcomes of irrigation experiences elsewhere.
The ground which I have traversed has now been marked out in the foregoing tuMe of i-
tents. Some of the results are embodied in final form in the following advance sheets.
No attempt has been made to write a text-book for lawyers, a manual for enginee;
complete guide to practice for irrigators, nor a treatise for the scientist or the political economist.
But each will find in this report, when finished, very much which probably would not other
wise come to his notice, and so linked with the phase of the question of which he may i;
special study, that he will be profited by the reading and prepared to be less uncompromising
in his views.
Now, it is the eradication of uncompromising and unreasonable views of this irrigation
tion which is necessary to the attainment of its solution. No mere local or class >tudy of it
can effect this purpose, arid no one person, unless specially devoted to it. can go over it all with
the material scattered and undigested as it heretofore has been.
In undertaking this report the writer has believed that its cost could only be returned to the
people of the State by making it sufficiently thorough to constitute a guide to the whole >ul»-
ject. A report only on what might be called the practical or engineering problems of irriga-
tion in California, while probably of much use to a very few persons, would have been of little
use to the State or the people at large.
This question will be a living one, growing in importance, and pressing for legislative act ion in
some form, for years to come; and this report has been framed and carried forward with .
of facilitating this action.
* * -:•:- ;;; •:•:- -:;:- •:•:-
Very respectfully, your obedient servant.
\\.\r. HAM. HALL. State Engineer.
SACRAMKNTO, GAL., December 31, 1884.
REPORT OF THE STATE ENGINEER
PART I.
BOOK L— COUNTRIES UNDER THE CIVIL LAW,
The Roman Empire; France; Italy; Spain; Mexico.
CHAPTER I.— THE ROMAN EMPIRE;
ROMAN LAWS AND ADMINISTRATIVE POLICY WITH RESPECT TO WATERS
AND WATER-COURSES.
INTRODUCTION. — Time and Circumstances of Forming, and Importance of Roman
Laws of Waters.
SECTION I. — -Right of Property in Waters and Water-Courses.
Common Property — Running Waters.
Public Property — Rivers j Private Property — Brooks.
Resume as to Ownership.
SECTION II. — Control of Public Rivers and Waters.
Construction and Maintenance of Works.
Use of Public Rivers.
Use of Public Waters.
SECTION III. — Control of Waters in Private Works, and on Private Lands.
Private Springs.
Ownership of Waters of Springs and in Works.
Acquirement of Right to use Waters.
SECTION IV.— Right of Way to Conduct Waters.
Prsedial Servitudes — Aquce ductus ; Aquuz haustus.
The Right on Private Property.
The Right on Public Property.
INTRODUCTION.
It may be said that Rome once ruled all the countries of Southern
Europe, Northern Africa, and Western Asia where irrigation had its
birth and its greatest development in ancient times;* and that her
laws with respect to waters were crystallized several centuries after
the Romans became familiar with the practice of irrigation and the
necessities of the irrigation interest in the various quarters of this
region. §
* Irrigation of course existed in some of these countries long before the Roman Empire was
founded, and India and China also were the scenes of irrigation practice at a much earlier
period.
^ Rome was all powerful throughout the Mediterranean countries before the Christian era;
but the Theodosian codes were promulgated more than four centuries, and the Justinian codes
more than five centuries later.
36 ROMAN IRRIGATION LEGISLATION.
Those who were regarded as authority at the law in Rome, who
plucked from the confusion of her earlier customs and edicts the prin-
ciples of her laws, with others who expounded those principles and
formulated her system, were amongst the most acute and logical
thinkers the world has known to this day; so that modern juris-
prudence, at least in continental Europe, has been so far guided by
the principles of the Roman Law, it has been said, in substance, that
"having ceased to rule the world by their arms, the Romans still
control mankind by their reason."
This being the case, it is well that our inquiry commence with a
glance at the leading features of the laws and administrative policy
of this people in their dealings with the water-right and irrigation
interest, although, considering the vast difference in our social estab-
lishment and forms of business enterprise, we may not find the posi-
tive guide which we are in search of.
SECTION J.
RIGHT OP PROPERTY IN WATER AND WATER-CO I "KSKS.
In their classification of things, as a basis of laws regarding owner-
ship and use, the Roman jurists recognized, with respect to proper-
ty ship, two general classes:
Things in patrimonio, capable of being possessed by persons exclu-
sively of others; and things extra patrimonium, those incapable nf
being so possessed.
Things extra patrimonium were classed under four headings:
Things common, free to all mankind; things public, belonging to
some nation or people; things universitatis, belonging to some certain
city, society, or corporation; and things nnlliti*, belonging to nobody:
the latter relating to things consecrated and devoted to religious use-.
COMMON IMJOl'KKTY — KVXXIX<; "\VATKRS.
Like the air, water was regarded as a necessity to human life, of
which every one might use so much as was requisite for personal
requirements, but which was not capable of appropriation to private
ownership further than in this sufficient quantity.
By the law of nature, flowing water is a common property of all
men.— [Justinian's Codes, Lib. 6, Tit, 1, Sec. 1.
" Res communes, : * things the property of no one in particu-
lar —the air, running water, the sea and its coasts, and wild
animals in a state of freedom. The air is necessary to human life,
OWNERSHIP OF WATER-COURSES. 37
and every one may use so much of it as is requisite, but it is not
capable of appropriation; the same is the case with running water."-
[Colquhoun, § 923.
" Res omnium communes. Such things, it is obvious by their very
nature, could not stand in private ownership. Every person might
use and enjoy them, but no one could possess them. These- things
are the air, running water, etc.
" When the Romans speak of the air as a res omnium communis,
they do not mean to include the space above the earth, but only the
atmosphere. The man who owns the soil owns the space above it,
and this space is a thing in commercio " — (capable of barter or sale);
but the atmosphere is a res extra commercium" — (a thing not capable
of barter or sale).
"The same remarks apply to running water. The space in which
the brook or streamlet flows, as it hastens to feed the larger streams,
is in private ownership, but the water is not." — [Gaius, p. 209.
"Things common to all, are those which being given by providence
for general use cannot be reduced to the nature of property. Such
are the air, running water, the sea, and the shores of the sea; but if
a man by prescription, from time immemorial, had the use of run-
ning water, as for a mill, his case was an exception to the general
rule, but he must not waste the water unnecessarily; and mills and
other structures might be' erected on rivers by special license. Vid.
Digests, 48-8."— [Browne, Vol. I, p. 170.
"From the very nature of such things results the necessary conse-
quence that they can never be completely the object of private own-
ership, that they can form the object of such a right only so far, and
so long, as it is possible for man to retain them under his dominion
or control. Except as to the portions which an individual may thus
have brought under subjection, they must be regarded as common to
all the world — Res omnium communes" — [Goudsmit, p. 113.
PUBLIC PROPERTY — RIVERS : PRIVATE PROPERTY — BROOKS.
Streams, rivers, lakes, ponds, etc., which were not in private own-
ership, were regarded as public things, and spoken of as res publicse,
things which belonged to the people as a nation.
There were public properties used for State purposes, solely and
only, by the representatives of the State, the rulers or officials; and
public properties used by private individuals, and yielding revenue
to the State for such use; and there were public properties used freely
by all the people.
" Res publics, in the strict sense of the words, are those things
which are exclusively in the possession of the State. Such are public
thoroughfares, public streams, public squares, public baths, and the
amphitheatres." — [Gaius, p. 210.
The roads and rivers were specially counted as public things by
the Romans. "The public could use the river, for instance, as a ship
way, or for fishing, but the ownership itself was vested in the State."
—[Gaius, p. 210.
38 ROMAN IRRIGATION LEGISLATION.
They were not the property of the ruling sovereign, but of the sov-
ereign power of the people collectively, each one of whom could use
them as his own, but might not injure them, neither segregate any
portion or constituent part of them for his own.
And this right of use in the navigable rivers, highways, harbors,
and gates was extended to all, whether Roman citizens or not, who
were at peace with Rome.
Public rivers are denned to be such as were perennial or ever flow-
ing, as distinguished from winter torrents, but this, although one of
the essentials of such rivers, was not alone sufficient to render thorn
public, for if located through private lands they were not the prop-
erty of the public unless navigable or capable of being made so by
improvement, or, from some other cause, of public importance.
"It is not, however, all streams that are public things. Tims
Ulpinius says : 'Some streams are public and some are not. Cassius
defines a public river as one which runs perennially.' A perennial
stream is one which flows throughout the year.
"Perennial brooks are not as such res publicse, although, in conse-
quence of their resemblance to public streams, legal protection was
afforded to persons having only a private interest in them, which
protection was based upon and analogous to that by which water-
that were res publicss (public) were protected.
"There was not at any time in Roman law a strictly legal distinc-
tion drawn between the river (ftumen) and the rill or brook (/•/>"*).
As a general thing, it may be said that the brook is a private thing,
and the river the property of the public."— [Gaius, p. 209.
A river (flumen) was distinguished from a stream (rivus) by its
greater volume, or more considerable local importance. Rivers wen-
of permanent flow, or only of intermittent flow, leaving their beds
dry in Summer, when they were called torrents. A permanent river
might occasionally dry up, however, without losing its character.
Permanent rivers were public rivers, and might be either navigable
or not navigable.*
RIVKR BANKS AND BEDS — OWNERSHIP AND VSK.
The bank of a river, like the shore of the sea, commenced at the
limit of the spread of the waters at high stage, but when lands were
not inundated ; land above that line was property in public or private
ownership; all below that line was the bed of the river.
In the case of navigable rivers and all streams of the public prop-
erty, the beds belonged to the State; being part of the public thing—
the river. Should the waters leave such channel and take another,
the river, the public thing, was considered to have moved, and the
old bed became the property of those whose lands were taken for the
* Justinian D., Lib. 43, Tit. 12, Sec. 1 ; Lib. 43, Tit. 12, Sec. 3.
OWNERSHIP OF WATER-COURSES. 39
new channel, while lands taken for this new channel became part of
the public property — the river.
In the case of non-navigable rivers and streams not regarded as
public, situated on private property, the beds belonged to the riparian
proprietors. While these beds were covered with water it was con-
sidered that the rights of such proprietors were suspended, •but~sttch
rights revived when the waters receded.
It is not necessary for the purposes of this report to carry this sub-
ject further and consider the matter of alluvion.
By some authorities, and at a different period of time, a somewhat
different doctrine was held to, regarding the beds of rivers, which
was as follows:
The beds of rivers were classed with animals, birds, and bees in a
wild state, fishes in public water, gems unfound, etc., things capable of
private ownership, but yet within the power or possession of no one.
When abandoned by the waters the lands of such beds became the
property of the riparian proprietors, as did also alluvial formations in
the beds of a stream — whether in the form of addition to the banks,
or islands in the channel — as soon as deposited.
"Temporary inundation suspends, and continued inundation
destroys the right of the owner."— [Colquhoun, § 982.
The banks of a public river might belong to the riparian proprie-
tor, to the extent that he had the right to take the fruits, cut the
bushes, and fell the trees which grew thereon, but not so as to preju-
dice the use of the river or its banks by the public.
The public had a right to the use of the banks of navigable rivers,
so that a qualified ownership of the soil of such banks was all that
could be acquired by private persons.*
The owner of lands which were bounded by a ditch or wall follow-
ing near the bank, or by a public road on the bank of a public stream,
was not a riparian proprietor; to be such his lands had to be bounded
by the stream itself.
RKSUME AS TO OWNERSHIP.
We thus see, and it is essential to keep clearly in view, that the
Roman law made a marked distinction between rivers and streams,
and the waters thereof.
Taken as a whole, a river — bed and water — was regarded as a pub-
lic thing (res publica), the property of the state, necessarily excluded
from private ownership or control, barter or sale, the use of which
in its entirety, to be enjoyed by all.
*Colquhoun classes the banks of navigable rivers amongst things public, and says expressly
that they were public property so far as the public chose to use them in aid of navigation.
40 ROMAN IRRIGATION LEGISLATION.
The water of the river was the property of all the people in com-
mon— it was regarded as susceptible of apportionment amongst the
people — each might drink of it, each dip up a portion and carry it
away, and, further than that, if the enjoyment of the public prop-
erty— the river as a whole — would not be impaired, each might divert
a portion of the water from its natural channel for other purposes
than those of his own domestic necessities.
But the state, representing the people — the owner of the public
thing, the river — was guardian of the common property, the water —
and no person could use more than sufficient for his individual
necessities and those of his family and cattle, without a special per-
mit so to do.
Water sources and water-courses were susceptible of private own-
ership, and, where thus owned, the right to use their waters for pur-
poses other than the supply of the immediate animal necessities
pertained primarily to their possessor.
Thus, there were springs and brooks, which, being situated on
private lands, constituted parts of such property, but the water itself,
while running in its natural channel, was the property of all the
people, and, as such, was the ward of the nation.
SECTION II.
CONTROL OF PUBLIC RIVERS AND WATERS.
It was specially declared to be lawful for every one to navigate his
craft on all public rivers, lakes, and canals, and the banks thereof
were open to all for purposes of loading and unloading, but the navi-
gator was forbidden to enter forcibly upon a bank for this purpose.
The right of fishery was open to all, and each person might dry
his nets upon the shore, and otherwise use the banks as might be
necessary in the prosecution of his calling.
The banks and channels of public rivers were specially guarded
from injury; the construction of works or the placing of obstructions
therein, by the effect of which the current might be made more or
less rapid, was forbidden.
The construction of works upon the bank, or in the channel of a
public river, whether navigable or not, whereby either the low water
or high water flow thereof would be affected, was forbidden.
And works which might have an effect such as described, erected
without authority, were removed or abolished at the expense of the
constructor.
CONTROL OF PUBLIC RIVERS. 41
"Prohibitory interdicts forbade anything being done tending to
impede the navigation of public rivers, or changing the course of
running water; and other interdicts, of the restitutory class, com-
pelled the re-establishment of things in the way the public had
hitherto enjoyed them."— [Ortolan-Mears, p. 398.
" The prietor says : ' I forbid any one to put any structure UDOU a
river or on its banks, or to do anything that would deteriorate the
navigation or the water-way."' — [Justinian D., Lib. 43, Tit. 12, Sec. 1.
Speaking of this interdict, Colquhoun, in substance, says:
And this applied to all public streams, whether navigable or not,
in full force except in the case of works intended for the protection
or preservation of the banks or channel, the right to construct which
works was the subject of a sanction.
"This interdict is intended for. all people, and is perpetual, but
Mies against him only who has diverted the water, and his heirs pro-
hibitorily and for restitution.' "—[Colquhoun, § 2291.
CONSTRUCTION AND MAINTENANCE OF WORKS.
It was declared to be lawful, however, for riparian proprietors, or
those who lived near the bank of a public river, to erect works for
the protection of a bank thereof, provided that navigation was in no
way impeded thereby, and that the river or the other bank was not
injured.
" The prsetor does not pretend to prevent all kinds of works made
in rivers or their banks, but only those which could injure naviga-
tion or the water-way. Thus the interdict of which we speak here
only concerns the public rivers, and not the others." — [Justinian D.,
Lib. 43, Tit. 12, Sec. 1, § 12.
If damage resulted from any such work, an official examination
was made, and, if deemed necessary, the works were removed, or
ordered changed, and security for ten years was exacted from their
owner or constructor, the amount thereof to be assessed by persons
chosen for their competency in such matters.
There wras an interdict, de ripa munienda, concerning the pi*otec-
tion of river banks, whereby it was lawful for riparian proprietors
to construct works for the repair or protection of the bank adjacent to
their property. If damage was threatened by such works to the lands
of another on the opposite bank or elsewhere, a writ of inquiry was
ordered, and security was exacted for ten years against the results of
such possible damage, if, in the opinion of experts, it was likely to
occur.
"This interdict being only prohibitory, and not also restitutory,
had to be applied for before the work was commenced; for, after-
wards, there was no mode of making it effective, and recourse had
42 ROMAN IRRIGATION LEGISLATION.
then to be had, in case of damage done, to an action for damages."-
[Colquhoun, § 2292. '
D1VKRSIOX OK PUBLIC WATKKS.
Appropriation of the waters of public streams, except for individ-
ual use, was a custom not known to the Roman law, for although
irrigation was recognized as a necessity, the rivers were regarded as a
public property and as such were guarded in the common interest.
Navigable rivers and running waters generally were excluded from
private ownership because of the public use to which they were
devoted and the common necessity for their use.
The diversion of waters, whether of floods or low-water flow, from
public rivers, reservoirs, or tanks, without the sanction of a special
privilege in each case, was prohibited.
A decree of the pra3tor was required to obtain authority to appro-
priate to private use any material part of a property common to all
the people. — [Ortolan, p. 143.
"Nothing prevents water being taken from a public river, unless
the prince or the senate forbids; provided that this water may not
be for public use. If the river is either navigable or makes another
navigable, this will not be permitted." — [Justinian D., Lib. 43, Tit. 12,
Sec, 2.
"The prretor must not accord the right of drawing from a nav-
igable river a quantity of water whose extraction would injure
navigation. It would be the same on a river which, not being itself
navigable, discharged into another which it rendered navigable."-
[Justinian D., Lib. 39, Tit. 3, Sec. 10, § 2.
"The matter o£ water, throughout the larger portion of the Roman
empire, was a matter of great importance, and it Was therefore found
necessary to supply a summary remedy by interdict to all questions
relating to it; hence it was provided in the edict : ' concerning annual
water, it is not to be taken by force, fraud, or by the permission of
another;' and 'concerning the use of Summer water, it is not to be
taken by force, fraud, or by the permission of another.' " -[Colquhouiu
§ 2301.
" By the civil law, the rivers were public; * nor was any
obstruction or diversion of a river allowed. See Digest, Lib. 43."-
[Browne, Vol. 1, p. 171.
[See, also, extracts from Ortolan and from Colquhoun, given under
the second heading preceding this one.]
It appears that water privileges were of two kinds : /-Y/-x/ — Thoser
to individuals, of water for use on individual lands — the terms "on
his farm "being used in this connection; and these were accorded
by local authority, apparently that of the provincial praetors, at
one period at least. Second — Those of waters for public use, which
authorizations emanated from the senate or other supreme central
power.
CONTROL OF SMALL STREAMS. 43
When a joint right to divert was issued to several persons the mat-
ter of division of the waters was left to those holding the right.
The remodelling or alteration of the headworks of canals or cuts
out from both public or private rivers, without official sanction, was
prohibited.
USE OF PUBLIC WATERS.
The use to which water was to be put was not always stipulated in
grants, provided that it was to be used in good faith and not wasted.
It was declared that the user of water was liable for damages, " by
reason of anything done, dug, sown, delved, or built whereby the
river was corrupted."
It was declared that water privileges should be " exercised in such
a manner as not to damage other persons having similar rights."
" A caput aqux was a head or source of water, where it first begins
to appear in whatsoever manner."
All interference with public springs or water sources, lakes, wells,
and fish ponds was prohibited.
" The waters of a public spring must be divided amongst the
owners of the adjacent lands, in proportion to their possessions,
unless some owner can prove his right to preference. But no one
should be permitted to conduct the water on to his property unless it
can be done without injury to others." — [Justinian D., Lib. 8, Tit. 3,
Sec. 17.
The cleansing of springs or fountains, etc., was permitted, but it
was stipulated that no new veins of water were to be opened up.
Reservoirs might be cleaned and repaired, but no additional waters
conducted into them without authority.
Possession and us-e of .running water, as for the operation of a mill,
or in irrigation, by a private individual, from time immemorial, gave
a prescriptive right to the continued enjoyment of such use.
No possessor of water, though having held it from immemorial
time, had the right to use it wastefully to the prejudice of others.
SECTION III.
CONTROL OF WATERS IN PRIVATE WORKS.
Springs on private lands were the property of the land -owner, on
the principles that to such proprietor belonged all above and all
below the land, and all it produced.
The right to use spring waters might be acquired by others than
the owner, by agreement or prescription; prescription being use,
virtually, from time immemorial.
44 ROMAX IRRIGATIOX LEGISLATIOX.
Spring waters flowing off, joining with other waters and forming
brooks on other lands, became common property of all people, but
their use was dedicated to the owners of the lands along their course;
so that such waters, for purposes of diversion, belonged to these
riparian proprietors.
It is necessary to carefully guard against misconception on this
point. Water rising out of the ground on a private estate, as being a
part of the spring, was the property of the owner of the land: he
could do with it as he chose; but when any portion of that water had
escaped from the tract where it came to the surface, it became a com-
mon property of all the people. But so long as it remained in chan-
nels on private estate's and channels not public from any cause
(navigability or other reason), only the owners of the banks of its
channel could divert it from its course and use it, except this right
should have been acquired as a servitude, as will be explained under
the next heading.
But even these bank proprietors could not divert such waters, if, in
doing so, other proprietors were injured thereby.
"For the validity of the concession for the right of taking water
onto his property, it is necessary to have the consent not only of
those in whose lands the water rises, but, further, of those who have
the use of this water, that is to say, of those who have a right of servi-
tude upon this water. * * And, in general, it is necessary to
have the consent of all those who have a right upon the stream or
upon the land where the water rises." — [Justinian D., Lib. 39, Tit. :>,
Sec. 8.
Water drawn from its source, diverted, or drawn from its course,
into an artificial and private channel, or when stored in a reservoir
or tank itself in private ownership, became private property.
The user might do with it as he chose, provided his use was in good
faith — that he did not wraste it.
SECTION IV.
THE RIGHT OF WAY TO COXDUCT WATER.
The rights to draw waters from a private spring or stream by others
than its owner, and to conduct waters across lands owned by others,
ranked as servitudes.
A prsedial servitude under Roman law was a definite right of enjoy-
ment in some particular respect, of one person's property by the
owner of other adjoining or neighboring property. The land subject
to the right was called prsedium serviens, and the land to which the
right was attached was called prsedium dominans.
RIGHT OP WAY FOR WATER. 45
Such a servitude could be held only as an appurtenance to land
owned, being called priedial because it could not exist without an
estate.
The land subject to the servitude, and that to which the right of
enjoyment was attached, had to adjoin each other, or be near to each
other.
The servitude was attached to the land having the right of its
enjoyment, and was owned with it, and passed to a new owner with
the title to it; but was extinguished when the two estates involved,
became the property of one person : that person then acting by right
of absolute ownership of all the property, and not as owner of one
estate and the attached servitude on the other.
Pnedial servitudes related to estates in country or city, and were
called, accordingly, rural and urban.
The right of passage across the lands of another, and the right of
conducting water through such lands, appear to have been recognized
as indispensable privileges from the earliest times of the Roman
jurisprudence.
The right of way to construct a canal or other conduit through the
property of another, and to lead waters through it, was known as
servitus aqux ductus, and was one of the chief rural servitudes.
li Servitas aqiue ductus, the right to convey water by canals, bricked
trenches, or pipes through another's land. Some aqueducts were
public, but others were for the use of private farms, to which latter
this servitude particularly applies."— [Colquhoun, § 938.
The right to take water through the property of another in a ditch
or other conduit, could be acquired by prescription — use for a long
period of years — or by agreement, or, in the case of public works or
works of public importance, title to the land necessary could be
acquired by expropriation and payment therefor.
When acquired as a title, of course the right was complete. When,
as a servitude, the right was acquired or accorded for a certain pur-
pose only. Thus, he who had a prescriptive right to take any accus-
tomed quantity of water across another's land, could not materially
increase that quantity. Having taken the water for his own use, he
could not take water also in the same channel for the use of another.
Having taken water for a certain farm, he could not take more than
enough for that farm.
" The quantity of water that could be taken was determined, in
the absence of agreement, by custom, not by the wants of the land
for which the servitude was granted ; but so much could not be taken
as to starve the land from which it came. If custom sanctioned it,
the water might be used for irrigation." — [Hunter, following Justin-
ian's Code, p. 245.
46 ROMAN IRRIGATION LEGISLATION.
" No one can, without permission of the prince, conduct water
across public property." — [Justinian D., Lib. 39, Tit. 3, Sec. 18, § 1.
A right to draw and use water from another's spring or rivulet
might be imposed by agreement or prescription as a servitude thereon.
This right was known as aqu& haustus and implied also the right of
passage so far as necessary to exercise the servitude.
AUTHORITIES FOR CHAPTER I.
In the preparation of this paper I have consulted and compared the following authorities :
Colquhoun. — "A Summary of the Roman Law." By Patrick Mac C. de Colquhoun : 4 vols.:
London— 1849. See, more particularly, ^ 923, 924, 925, 938, 980, 981, 982, 983, 22M>.
2290, 2291, 2292, 2300, 2301, 2302.
Goudsmit. — "The Pandects, a Treatise on the Roman Law.'' By J. E. Goudsmit, LL.D., 1
vol.; London — 1873. See, more particularly, pp. 113-115 and foot notes.
Ortolan. — "The Institutes of Justinian." M. Ortolan. Analysis by T. Lambert Mears. M.A..
LL.D.; 1 vol., London —1876. See, more particularly', pp. 14:',. 14-. L'l'n. 389.
Mackenzie. — "Studies in the Roman Law." By Lord Mackenzie; 1 vol., Edinburgh — 1876.
See, pp. 167-170, 177, 184-185.
Browne. — "Compendious View of the Civil Law." By Arthur Browne, LL.D.: University of
Dublin; 2 vols.: London — 1802. See, vol I, pp. 1 »>~-l ?::.
Cumin. — "A Manual of Civil Law." Patrick < 'iiinin, M.A., Baliol College, Oxford; 1 vol.:
London— 1865. See, particularly, pp. 80-85, 97-99.
Gaius. — "The Commentaries of Gains on the Roman Law." Translated, etc., by F. Tomkins,
M.A., D.C.L., and Win. G. Lemon, LL.B.: 1 vol.; London — 1869. See, particularly,
pp. 201-210.
Justinian. — " Digest or Pandects," — Of Justinian, Emperor. Translated into French by M.
M. Hulot and others; 6 vols.; Metz — 1804. See, particularly, books 8,39, 40, title.-
quoted.
Hunter. — "The Roman Law in the Order of a Code." By Wm. A. Hunter, M.A.. University
College, London ; 1vol.: London — 1876. See, particularly, pp. lt;s. 1 fi'.i. 241-245.
IRRIGATION LEGISLATION AND ADMINISTRATION
FRANCE.
CHAPTER II.— FRANCE(1);
RIGHT OF PROPERTY IN AND CONTROL OF WATER-COURSES,
SKCTIOX I. — Origin of Property Rights and Ownership of Streams.
Basis of Property Rights in France.
Ownership and Control of Navigable Streams.
Ownership and Control of Non-navigable Streams.
SECTION II. — Water Laios and Regulations.
Moving Causes of Development.
Special Regard for Irrigation.
Classification of Water Laws.
SECTION III. — The Administration.
Administrative Purpose and Policy.
Governmental Organization.
The Administrative System.
The Bureau of Public Works.
The Engineering Department.
Administrative Working.
Navigation and River Guards.
SECTION I.
ORIGIN OF PROPERTY RIGHTS AND OWNERSHIP OF STREAMS IN FRANCE.
BASIS OF PROPERTY RIGHTS.*
While under the dominion of Rome all matters pertaining to the
streams and waters of the country now called France were subject to
governance by Roman law.
Long before the close of the Roman rule, the people had the full
protection due citizens of Rome, so that at the time of the conquest
of Gaul by the Visigoths (A. D. 470 to 480) there was much land held
in individual ownership with the consequent private rights on small
streams; but under these Merovingian kings the freehold titles to
land disappeared, property was held by a different tenure under the
sovereigns, and all right of ownership in water-courses and waters
was vested in the rulers themselves.
The feudal system then grew up, and the water-courses, from having
belonged, according to their class, to the nation and the people or to
*See, particularly, Dalloz and Malapert j also, Dumont and De Passy.
48 FRENCH IRRIGATION LEGISLATION.
private individuals, under Roman law, and then exclusively to the
kings, under Merovingian rule, became dependencies upon the fiefs
of the feudal counts, who assumed almost complete ownership of and
control over them (9th to 12th centuries).
Actuated by desire for the revenue to be had from tolls and subsi-
dies for navigation and ferry or bridge permits, for several centuries
a struggle was now ever present between these nobles and the kings,
for the control of the water-courses; and the conflict did not cea>e
until the government had become centralized and feudalism had been
overthrown during the fourteenth century.
"All streams and waters belong to the king by right of kingship"
was the principle proclaimed by the sovereigns and their nearer
adherents.
But in contending for this principle against the nobles and pro-
vincial states, the kings in fact gave up control of non-navigable
streams — those upon which tolls could not be collected for ferriage
and navigation permits — to the bank-land owners.
In the fourteenth century the study of the Roman law was actively
revived in France, and the time being about coincident with the
decline of feudalism, and the Roman law, recognizing ownership <>f
streams not of public importance— that is non-navigable streams—
by the riparian proprietors, this rule apparently thus became incor-
porated into the law of France.
The kings asserted their ownership of all navigable streams, and
those which were floatable for rafts and large timbers, extended the
application of the rule as far as there was then any justification for it,
and left the control and virtual ownership of non-navigable and non-
raftable streams to the bank owners, but really without any formal
laws or declarations upon which was grounded their claim of title to
them.
The public possessions of the kings, held for the benefit of the
nation, became in course of time known as the "public domain," and
in 1566 was issued the edict of Moulines, which declared the impre-
scriptibility and inalienability of this public domain.
This policy of holding fast to all the nation's property, though often
attacked, is still adhered to by the government, so that water-courses
and waters, once declared navigable and raf table can never be alien-
ated from the public domain, and become in any sense private prop-
erty.
U\VXKUSHIF AM) CONTROL OF NAVIGABLE STREAMS.*
Navigability and floatability for rafts and large timbers became the
* See, particularly, Dumont, pp. 1-14, 135-146, Dalloz, Vol. XIX, pp. 337-337, Proudhon, £ 816;
also De Passy.
OWNERSHIP OF STREAMS. 49
test for streams belonging to the king, but any stream deemed of
public importance might have been declared thus navigable or raft-
able, and made so in sufficient degree to justify its incorporation into
the public domain.
The changes in the form of government, occuring a little less than
a century ago, appear to have resulted in no completed action -affect-
ing the laws or customs respecting waters until 1803-4, when the Code
Napoleon was promulgated.
The Code Napoleon is the present civil code of the country. With
respect to water-courses and waters it makes this distinct announce-
ment:
" Article 538. Highways, roads and streets at the national charge,
rivers and streams which will carry floats, shores, ebb and flow of sea,:'c
ports, harbors, roadsteads, and generally all portions of the national
territory, which are not susceptible of private proprietorship, are con-
sidered as dependencies on the public domain."
This is the only direct statement relating to the ownership of water-
courses or waters in this code.
A royal ordinance of 1835 enumerated all the streams and parts of
streams in France, deemed navigable or raftable, and hence claimed as
of the public domain, and other ordinances, etc., of later dates have
added to the list.
The sovereign authority to declare streams navigable, and thereby
make them part of the public domain, has not been disputed either
in the courts or before the council of state, but riparian proprietors
who have been dispossessed of their right to water for irrigation, by
the exercise of this power, have claimed, and been allowed by the
courts, in a manner prescribed by law, indemnities for actual damage
caused them.
Furthermore, although only certain streams and parts of streams,
embracing probably all that really are navigable, or that can be made
so by a small amount of work, have been thus added to the public
domain, the administration, in council of state, may at any time
declare other streams or parts of streams navigable or raftable, and
thus make them public property, afterwards paying the riparian pro-
prietors for whatever actual damage they" may suffer, as may be
adjudged by the courts.
The state, owning these water-courses, is, of course, owner of the
waters forming them, and these, with the beds, under the edict of
-These are the words of Richard's translation of " lais et relais de la mer;" but the phr:ise
should be rendered " the land left uncovered by and recovered from the sea " — namely, the land
newly made by the sea. [Dalloz, Vol. XXXVIII, p. 208.]
41'1
50 FRENCH IRRIGATION LEGISLATION.
1566, are inalienable from the public domain: their »/.NV only can be
granted, as will hereafter be seen.*
(HVXKRSHIP AM) CONTROL OK STRK.AMS NOT XAVIUAIiLK XOK RAFTAHLK. £
The ownership of the beds and waters of streams neither navigable
nor floatable for timber, and not claimed as such by the government.
is a point which has been much disputed.
It is stated by some French writers of forty years ago that the l>e<l>
of such streams belong to the riparian proprietors, and they imply
that- the waters are a sort of property held in common by these pro-
prietors.
But all authoritative writers now hold that "according to tin-
terms of article 714, civil code, water-courses not navigable nor raft-
able are common property, i. e., enter into the class of things which
do not belong to any one." — [De Passy, p. 297.
This article 714 reads as follows: "There are things which In-long
to no one, and the use whereof is common to all.
''The laws of police regulate the manner of enjoying such things."
But the preceding article, 713, says that "Property which has no
owner belongs to the nation."
Taking these two articles together, if the ownership of non-navi-
gable and non-raftable water-courses cannot be fixed elsewhere, then
these streams belong to the nation, just as well as do those which
have been made part of the public domain by declaration of naviga-
bility, under article 538.
The facts are, that riparian proprietors claim the ownership of the
channel beds to the center line, each in front of his property, and
that the courts allow the claim when the beds are permanently laid
dry from any cause; that alluvial deposits along their banks accrue
to the benefit of the land owner adjacent to whose field they form :
that islands forming in the channels, belong to the adjacent bank-
owners, in proportion on each side to local circumstances, ami that
prior to the passage of a law specially to the point in 1847, the owner
of one bank could not, even after having secured administrative au-
thority to build a dam in the stream in front of his property, obtain
the right to carry it past the center of the stream, or connect with the
opposite bank, without the consent of the owner of that bank.
We see, therefore, that until very recent years the beds of streams
of this class belonged to and were under the control of the riparian
proprietors, except, as will be seen hereafter, in matters wherein the
*De Passy, p. 297.
# See, particularly, Dumont, B. II, Chs. Ill and V; De Passy. Oh. 1. and p. 27J>.ef seq: De
Buffon, Vol. II, See. I : Dalloz, Vol. XIX, pp. 379-384: also, Code Napoleon.
OWNERSHIP OF STREAMS. 51
government has exercised a supervision of works and channels to
insure a free flow for flood waters.
RIPARIAN' CLAIMS TO THK WATERS.*
The waters of non-navigable and non-raftable streams were for-
merly also claimed as the private property of the riparian proprie-
tors. Circumstances of their origin and division, and the necessarily
common control of the streams, upset this theory, however, long
before the passage of the Code Napoleon.
They were then claimed by these bank-land owners, as a sort of
property held in common by them as riparian proprietors, for the
exclusive benefit of their lands and industries.
On the other hand, it was and still is claimed by the owners of
lands not bordering the streams, that these waters belong to the whole
people of France, or are held by the nation for the benefit of the
whole people; and while the riparian proprietors are given, by the
Napoleonic code, a right to use them in irrigation and otherwise,
they are not given an exclusive right, but that the government, as the
guardian of the waters, can, as in the case of the waters of navigable
streams it does, grant concessions for the use of some part of them on
lands not riparian, so long as rights already accrued by use, be not
unduly or injuriously limited or their exercise inconvenienced by
such action.
Replying to this, the riparian proprietors now say, that, if the waters
belong to the whole people of France or to the nation, they, the bank
owners, have, under the code, a special and complete servitude on
all such waters, which servitude, or right to use, is continuous and
not forfeitable by failure on their part to avail themselves of it at
any time, or for any length of time, except as between themselves, as
will hereafter be shown.
The question of the ownership of these waters, and that of the
nature of the right to use them which riparian proprietors have, are
points of several centuries of litigation in France, for these questions
were in dispute long before the civil code was promulgated, and it
only changed the aspect of affairs and stirred litigation up again on
a slightly different basis, with many fine points of law brought to
the front.
The fact of the ownership of the waters of non-navigable and non-
raftable streams by the nation, as representing the whole people, is
now pretty well settled, and the tendency of decisions and adminis-
tration rulings, is towards a declaration of ownership, by the nation,
*See, particularly, Dumont, Dalloz, and De Passy ; also De Buffon; as last cited.
52 FRENCH IRRIGATION LEGISLATION.
of the beds also, so long as occupied by the waters— or, so long as they
are courses for public waters.
Starting several centuries ago, with almost complete ownership
and control of the waters and channels of streams not navigable nor
raf table, the riparian land owners have since been restricted in their
lights, from time to time, and we now find them without any recog-
nized claim of ownership in the waters, and only the semblance of
ownership in the channel beds until after these shall have been laid
dry; but with a preferred privilege to the use of the waters, as we
will hereafter see.
SECTION II.
WATER LAWS AND REGULATIONS.
MOVING CAISKS (IF OKVKLOJ'MKXT.*
The water laws of France have their roots in the groundwork of
principles governing the right of property in water-courses, winch
have already been spoken of; for the application of these principles,
molded by the temper and the wisdom of the rulers, and mellowed
by the customs of the people, has brought out the laws and adminis-
trative system which we now find.
For centuries in the past, agriculture has been the favorite pursuit
of the French, and the rulers of the country have been alive to the
importance of fostering it.
Manufacturing, largely dependent on agriculture, has been its
branch of industry next in importance.
Its agriculture, in many quarters, has necessitated the application
of water in irrigation; its manufacturing has in a high degree been
built up by the application of water for power, and lias developed a
necessity for the use of water in large quantities in very many indus-
trial processes.
The necessity for cheap internal transportation facilities early de-
veloped a policy of river improvement and canal construction, so
that, commencing in this way as far back as the tenth century, France
now has a network of navigable waterways extending over almost the
entire valley portion of her territory.
Her hydrographical system and topography is such that large arc-as
of country in her river valleys have been subject to periodical inun-
dations, resulting in loss of property and . in unsanitary conditions,
*See, particularly, Malapert; also, De Buffon, and many papers, etc., in the Anntillcx <fr.
Ponts et Chauxsres, and Dalloz, word cited.
WATER LAWS AND REGULATIONS. 53
producing fever epidemics, thus pressing upon the attention of the
people and the government the necessity for improvement of arterial
drainage lines, the embanking of lands, and the sanitary drainage of
lands embanked and those otherwise subject to receiving too much
moisture.
These things all combined, have brought about the making of laws,
the growth of customs, and the promulgation of regulative decrees re-
lating to the improvement and guarding of water-courses and waters,
and their use in every way and in all interests.
SPECIAL REGARD FOR IRRIGATION.*
Agriculture being a leading interest, and the country ever alive to
its importance, we may be sure that it has been fostered, and, indeed,
the law-making powers have seemingly ever tried to favor it in the
framing of water laws; and although we find much complaint on the
part of French hydraulic-agricultural writers, that more has not been
done by government in behalf of irrigation, drainage, and the like,
and although undoubtedly more could have been done to great
advantage, in the way of systematizing matters as well as in the con-
struction of works, yet, considering the political troubles which have
for long periods of time disturbed France, on reading the accounts of
and laws relating to her hydraulic agriculture, we, who may judge
without prejudice, will be led to believe that the French rulers and
governments generally have striven to encourage and develop irri-
gation, drainage, and reclamation, and, in fact, have accomplished
much for them. With respect to irrigation— -our present subject — we
find it constantly favored in the laws, in preference to manufacturing
and many other uses of water — domestic necessities and navigation,
alone, ranking it in the scale, and the first of these two uses being the
only one decidedly preferred to it in the administration of the laws.
In view of these facts we may conclude that the French laws re-
specting irrigation are about as liberal as they could be made under
the circumstances surrounding their development or formation. And
it is a significant fact that, although framed for the most part in the
midst of monarchial surroundings, amidst all the tearing to pieces
which the institutions of France have repeatedly had by the liberal-
izing spirit that has from time to time prevailed, and even now that
the country for a decade has had a republican form of government,
the old administrative ordinances, the old administrative system, still
prevail almost unchanged, except in details and developments that
in no way affect their leading principles.
*See, Dumont, and De Buffon.
54 FRENCH IRRIGATION LEGISLATION.
CLASSIFICATION OF WATER LAWS.*
The earlier laws of those which now exist are the edicts of kings.
from the sixteenth to the present century. Then come, in addition
to similar promulgations, the decrees of ministerial officers, the en-
actments of legislative assemblies, the opinions of superior adminis-
trative authorities, as well as decisions of courts.
In fact, besides the statutory law, which has grown out of king-
made law, and that emanating from legislative officers or bodies, the
water laws of France comprise two brunches of what answers closely
to our common laws in the method of their development — namely:
through the interpretation of law and the establishing of precedent
by decisions. These branches of the water law have grown, respect-
ively, from the decisions of courts, and from the decisions or rulings
of superior officers or bodies of the advisory and executive branches
of the administration.
Although on several occasions within the past century, and notably
within the last ten years, efforts have been made to bring into form
and within a code of small compass the water laws and regulations
of France, there is still no general and comprehensive law or cod^ on
the subject, but the system is made up of numberless edicts, ordi-
nances, acts, decrees, rulings, decisions instructions, and circulars,
which form a body of law and regulative rules most difficult to trace
through in its connections and bearings.
SECTION III.
THE ADMINISTRATION.^
Water-courses and waters in France have been from an early period
in the modern organized government succeeding the feudal system,
generally subjected, not only to laws made by the law-making power
of the land and interpreted by the courts, and to regulations made
by the executive branch of government, but also to an active and
constant supervision by the officers of an administrative organization
under this executive bureau.
This branch of the government is called the administration. Its
regulative measures appear under the titles of decrees, instructions,
regulations, administrative laws, etc.
Its purpose, according to the French water-law writers, is to supply
the deficiency which must ever exist in the application of general
*See, Duraont, De Passy, and Letf Annalle* de* Pouts et Chamses, Vols. Laws and Decrees.
# See, particularly, De Passy; also, Dumont, and De Button.
THE ADMINISTRATIVE SYSTEM. 55
laws and principles to the management of the affairs of water-courses
through the medium of courts: a deficiency which makes itself appa-
rent in the impossibility of fully utilizing streams and waters under
any system of primal principles rigidly adhered to under all circum-
stances throughout a country.
From the difference in the nature of property rights on streams' of
the two classes — those navigable or raftable and those not so— and
from the great difference in the interests to be conserved upon them,
result the very essential differences in the administrative policy and
measures to which they are subjected.
On non-navigable and non-raftable streams the administration, in
theory, interferes with private operations conducted by those who as
bank owners have rights on the streams under the ancient usages and
the civil code, primarily, to regulate works in the channels or on the
banks, with the view of preserving the channels in the interest of the
public, and as far as possible assuring or developing a free passage for
flood waters without augmenting danger of floods; and, secondarily,
with the view of preserving the interests of navigation on the main
stream below.
On the water-courses of the public domain — those declared naviga-
ble or raftable — the policy of the government is actuated, primarily,
by a solicitude for the interests of navigation, and then by an almost
equal interest in promoting the economical and full use of the waters
in agriculture, manufacturing, and industrial pursuits generally, and,
finaljy, none the less, by a realization of the pressing necessity for
promoting the arterial drainage of the country, in order that great
floods be prevented, that valuable lands be reclaimed to rich taxable
districts, and that insalubrious swamps be reclaimed to healthful
neighborhoods.
ADMINISTRATIVE PURPOSE AND POLICY.
On non-navigable and non-raftable water-courses the administra-
tion is not authorized to interfere between the owners of works already
constructed and those proposed or newly constructed. If a proprie-
tor has lands bordering on the stream, the administration. is bound to
presume that he has the right to water from it, and it can only inter-
fere in an authoritative way with his project, to the extent of regu-
lating his works, with the views set forth in the second paragraph
above.
Further than this, in these cases, the administrative engineers can
advise the parties at interest, and bring before them all the facts as to
measure of water supply, and extent of use, and nature of existing
irrigations, or other data from which to judge of the equities in each
56 FRENCH IRRIGATION LEGISLATION.
case; but if 011 such showings, amicable agreements can not be urn veil
at, the administration has no alternative but to sanction the construc-
tion of any new work proposed — provided the work itself is unob-
jectionable— and thus leave the courts to decide, on the showing of
facts, whether or not the new appropriator is entitled to water.
On navigable and raftable streams, the administration is invested
with full powers, not only to regulate works of all kinds, and much
more in detail than on non-navigable and non-raf table streams, but.
also, to consider all questions relating to water privileges, to issue and
restrict them at will, under the laws.
In the case of both classes of streams, the administrative engineer-
are charged with the duty of collecting and arranging the data respect-
ing the supply and use of waters, so necessary in an equitable and
business-like adjustment of the many questions which arise between
the various parties immediately at interest, and between these and
the interest of the public, and also so essential to the study of economy
and efficiency in use of water, and the full development of the indus-
tries dependent on it.
Thus, the administration on non-navigable streams i-ogulates only
the works, and the courts adjuge the rights, while on navigable stream-
the administration adjusts and decides all questions, and issues all
privileges, and, finally, on all classes of streams, it obtains the data
from which to judge of questions which come up. This much for the
scope of power, policy, and duties of the administration as aii'ectcd
by the classification of streams and interests at stake.
GOVKRNMKNT ORGANIZATION.*
.France has an area of 204,091 square miles — a territory only about
one eighth larger than the State of California.
The country is divided into 87 departments, these into 362 arron-
dissements, or sub-departments, these into 2,863 cantons, or judicial
districts, and these, finally, into 36,056 communes, or municipalities.
France is a republic, but very many of her institutions are monar-
chial by origin and in spirit. The legislative power is vested in two
houses, or chambers — the chamber of deputies, and the senate: and
the executive authority, in a president.
The chamber of deputies is elected by universal suffrage1, each
arrondissement being represented by one deputy, or by more if its
population exceeds 100,000 souls. The senate is composed of 300
members, of whom one fourth are elected by the senate itself, for life,
*See, particularly, Reclus, Vol. II, Ch. XV: also, Malapert, Ch. XXI.
THE ADMINISTRATIVE SYSTEM. 57
and three fourths are elected for nine years by electoral colleges formed
in every department and commune.
The president is elected by the senate and the chamber, sitting
conjointly, for seven years. The president promulgates the laws
voted by the chamber; and he appoints his ministers, who are re-
sponsible to the chambers for the conduct of their several bureaus.
A council of state, presided over by the minister of justice, and
consisting of thirty-seven councilors and twenty-four masters of
requests, nominated by the president, and thirty auditors, nomi-
nated concurrently with the senate, advises on laws referred to it by
the chambers or by the ministers, and on all matters submitted by
the president, performing in this way certain duties as the chief ad-
visory and regulative body to the bureau which has to do with the
administration of the affairs of water-courses and waters.
Each department has its general council, the members of which
(generally one for each canton) are elected by universal suffrage, for
six years. These councils meet annually to discuss the department
budget and to act as advisors of the prefect. The prefect is appointed
by the president, on nomination by the minister of the interior. He
is virtually the governor of the department, and his powers are
extensive.
Each arrondissement, or sub- department, has its sub-prefect, and a
council elected by universal suffrage, to consider and regulate purely
local matters. The cantons are merely judicial and electoral dis-
tricts.
Each commune has a municipal council of from twelve to eighty
members, elected by universal suffrage. The mayor of the commune
is appointed by government, but he must be a member of the elected
municipal council. He represents the state as well as the commune.
THE ADMINISTRATIVE SYSTEM.*
As will be seen, the mayors and municipal councils, the sub-pre-
fects and sub-prefectorial councils, the prefects and the prefectorial
or general councils of the departments, as well as the council of state
of the government, are all connected with, and in fact together, make
up the administrative department, which, with the engineering de-
partment and bureau of public works, control the affairs of water-
courses and inland waters of the country.
The mayors and the prefects are the principal administrative
units in this administrative system, and to give an idea of the scope
of their territorial authority, it may be remarked that the average
* See, De Passy, Malapert, and Reelus.
58 FRENCH IRRIGATION LEGISLATION.
commune is 5.5 square miles, and the average department is *2,'M~>
square miles in area.
.This makes the jurisdiction of a mayor cover territory less than
one sixth of a township of our land survey system, and shows the
average scope of country presided over by prefects to be about the
size of Colusa, or one half that of Los Angeles county, in this state.
THK HURKAT OF 1THLIC M'OKKS.*
The construction and management of all public works, except those
specially and fittingly confided to the minister of war, of the1 navy.
of education, of posts and telegraphs, and some others, is delegated
to the secretary of state or minister, of public works.
Amongst the duties confided to this authority are all relating to the
hydraulic service; to ports, harbors, coasts, rivers, streams, canals,
torrents, irrigation, drainage, reclamation, and the like.
The care of all waters and water-courses, whether of the public
domain or not, their control, and the control of the acts of individuals
on their banks, is regarded as of public concern, and the administra-
tion has to do with the affairs of all streams, in a greater or less demvc.
as will hereafter be seen.
The minister of public works is the chief executive officer of gov-
ernment in this branch of the organization. He acts under authority
of laws of the country, and in the light of opinions or interpretation^
of old laws and customs, by the council of state.
He himself makes rulings and regulations in conformity with prin-
ciples thus laid down, in his circulars and instructions to subordinates.
For this purpose of administration, the prefects, each in his depart-
ment, are the chief local executive officers under the minister of pub-
lic works.
In the management of the affairs of the streams, in all, except the
planning and superintendence of work, and the exporting of all ques-
tions of a technical nature connected with the subject, the prefects
act under authority, and in accordance with the ministerial circulars
and instructions, which communicate to them the results of, or the
texts of, the advices of the council of state, when such there be.
Thus, all applications for permits or authorizations, or executive
rulings, or enforcement of regulations, first come to the prefects, and
they, if endowed with the authority suited to the case, act on it, or
refer it with comments to the minister of public works, if not com-
petent to decide themselves.
*See, particularly, Malapert, Ch. XXI and elsewhere; also. De Pussy.
THE ADMINISTRATIVE SYSTEM. OV
THE ENGINEERING DKPARTMKNT.-
In the ministry of public works is a bureau of civil engineering,
known, from long ago, for reasons not necessary here to explain, as
the department of bridges and highways.
This bureau is a very extensive organization of men scientifically
and practically educated at a government school for the purpose.
Their mission is civil engineering, primarily, and not military engi-
neering or the art of war. The organization is somewhat that of the
officers of an army, but promotion is not altogether by seniority, for
competency and special fitness have much to do with this.
From this bureau, engineers are detached to other service — to the
department of war, to that of agriculture, to that of posts and tele-
graphs, to the service of cities, and on special works, etc.
The greater portion of the engineers of bridges and highways are
in the immediate service of the ministry, or department, of public
works, in the construction or management of public works, or the
supervision of private works or operations affecting the public domain,
or the common welfare of all the people. While others of these engi-
neers are in the service of the departments, and more directly charged
with advising the prefects and prefectorial councils.
Wherever they go, however, their plans of works proposed are
subject to revision by the central commissions of the corps, and all
technical matters of great importance are referred to the engineer-
in-chief, to be by him laid before the proper revising board.
Besides the engineers, there is a corps of "conductors," who are the
superintendents of works. These men, besides a certain theoretical
training, have a practical education as constructors — stone and brick
masons, carpenters, and builders of all kinds — and each one is a
master in certain branches of practical construction.
They report to the engineers, and carry out their plans and specifi-
cations. The conductors are graded, and have various ranks in their
corps; and after a certain service become also advisors and inspectors
of works.
The engineers are the executive officers of the minister of public
works, in carrying out all works of a distinctively public character,
and also in the preliminary examinations for, supervision of, and re-
porting on all private or other works affecting the public domain or
the common good. And they are the advisers of the prefects in the
regulation of matters pertaining to waters and water-courses, as well
as other things.
•'•See, particularly, Malapert, Ch. XXI, and the heading "Engineers" in preceding chapters;
also, De Passy, supplement.
60 FRENCH IRRIGATION LEGISLATION.
The management of works of navigation, such as locks, dams, etc.,
on canalized or improved rivers, and of public canals of navigation,
and of works for the diversion of waters from streams, is intrusted to
their charge.
In a measure they have a co-jurisdiction with the prefects in some
matters of police of streams, and the line of duty of each is the subject
of careful designation by ministerial decrees and instructions.
Of the duty and authority of engineers and prefects more will be
seen in the chapters which follow.
ADMINISTRATIVE WOHKIM..
Briefly reviewing that which has been said applicable under this
heading, we see that the administration of waters and water-courses
is confided to the minister of public works and his subordinates of
the engineering and executive corps in the hydraulic service, and to
the prefects of the departments, who, acting independently in some
things, are still wholly accountable to the minister in others.
Thus, in matters pertaining to the construction of any particular or
important work, or the granting of any water privilege on navigable
streams, the prefects can only act provisionally, and every case has to
be considered by the minister of public works, and advised upon by
the council of state.
In matters of simply carrying out resolutions and the minor works
of repairs or construction on this class of streams, the prefects have
authority to act without reference to the central administration, but
an appeal may always be taken by parties at interest to the minister
or council of state, from an order or ruling of a prefect.
On streams not of the public domain, prefects have authority t<»
grant privileges for the construction of all works, when they are duly
advised by the engineers that no harm will be done by them and that
the plans are commensurate with the purpose in view.
And so, on this class of streams, the prefects are intrusted with the
administration of all regulations, and the making of regulations for
matters of detail in carrying out the decrees of the central adminis-
tration and the decisions of the courts.
The prefects of the departments, in performing executive duties.
act through the sub-prefects of the arrondissements composing their
departments, these through the mayors of the communes composing
their arrondissements, and these through the river-guards and rural
police of the country.
The government civil engineers form almost a distinct line of
*See, particularly, De Passy : also, Dumont, and Malapert.
THE ADMINISTRATIVE SYSTEM. 61
executive officers, as directly accountable to the central administra-
tion as are the prefects.
Those who are assigned to duty as departmental engineers are, of
course, annexed, as it were, to the staff of the prefect in each instance,
but those not thus assigned are in no way accountable to the prefects,
except as they may be placed to advise on works or measures wftrr
which the prefects may have to do.
The navigable streams and navigation canals of the country are
under the supervision of engineers, the duty being apportioned so
that one engineer is in general charge of a whole work or system, and
all others connected therewith are accountable to him.
The engineers on this duty act through their local assistants, and
these through the guards of navigation, hereafter to be spoken of.
The departmental engineers have to do more particularly with the
non-navigable streams, and are in this line of duty the advisers of the
prefects, and, in the absence of engineers specially in charge of any
navigable stream, the departmental engineer is the adviser.
Thus, on navigable streams, in matters of management and main-
tenance, the engineers are really the executive officers and the advis-
ers of the central administration, while on non-navigable streams the
prefects are the executive officers, and the departmental engineers
advise them. In matters of permits and privileges, the prefects are
the executive officers on both classes of streams, and the engineers
the advisers. In matters of construction, the engineers have exclu-
sive control on navigable streams, and are the supervisory officers of
private works on non-navigable streams.
NAVIGATION AND RIVER-GUARDS.*
It is now the intention of the government, that all water-courses of
public importance in France, whether navigable or raf table — and, con-
sequently, of the public domain — or not floatable even for rafts, and
timber, but which— by reason of the use of their waters in irrigation, or
for power, industrial, municipal, or other purposes, or by reason of the
existence of levees on their banks, or of their channels being outfall
drains for populous districts, or by reason of their being tributaries
to navigable streams where water supply is scarce — are of public
utility, or liable to receive injury to their channels or banks, or to do
injury by the excess or failure of their waters, shall be subject to the
supervising care of special agents of the government, called guards.
On navigable streams these agents are called "guards of naviga-
tion;" are appointed by the administrative officers in general charge
*See, particularly, De Passy, and De Bnffon, pp. 98 to 106 and elsewhere; also, Malapert.
62 FRENCH IRRIGATION LEGISLATION.
of the construction, maintenance, and operation of the works of navi-
gation, under the direction of the minister of public works, and HIV
paid by government.
The ''guards of navigation" have charge of the operation of all
locks, movable dams, sluices, and other structures in the river chan-
nels, and of all gates, sluices, or other openings for diverting walk-
through the banks. They in fact perform the duties on rivers, similar
to those performed by a superintendent and his assistants on a canal
in his charge.
At the principal structures, such as locks and movable dams.
guards are of necessity stationed all the time, while others are assigned
to beats on the river along the intermediate readies.
Every river being subject to general regulations laid down by the
central administration, and to special regulations covering details and
laid down by the local administrative and engineering authorities, it
is the province of the guards to see that these are observed and not
infringed upon; to see that all who have water privileges get their
dues according to the schedule, and are not curtailed in their enjoy-
ment of them by the greed, carelessness, or ill-feeling of others; to see
that, neither by neglect nor criminal act, is anything done to injure
the bed, channel, or banks of the streams; to observe all works con-
nected with navigation or affecting the stream in any way injuriously,
and to report their condition; to prevent the deposit of tilth, rubbish,
or dirt in the channel or on its banks; to keep a record of the flow of
the waters, and of their height at different points; and also to render
assistance, in cases of necessity, to river-craft crews or others endan-
gered or embarrassed from any cause.
Some rivers are specially under the charge of engineers detailed
from the government civil engineering corps for the duty: and in
these cases the guards report to them and receive instructions from
them. In cases where the navigation is not thus exclusively under
engineering control, the guards are subordinated to some other gov-
ernment functionary having these interests in charge, perhaps in the
several localities.
RIVKR GUARDS— THKIR DUTIES -VXD COM 1'KXSA 'I I OX.*
On non-navigable streams, the guards are called "river-guards."
They are appointed by the prefect of the province, generally on the
recommendation of the riparian owners, and others interested on the
stream, and are paid by the prefect, with moneys collected from the
parties at interest on the stream, according to circumstances.
* References same as those for preceding heading.
THE ADMINISTRATIVE SYSTEM. 63
On streams where waters are used largely for power purposes, and
which are not embanked, or, from other cause, threaten riparian
lands, the tax for the salary of the river-guards is levied entirely on
the manufacturing interest using the water, or, if at all, in a small
degree, only, on the owners of riparian lands.
While on streams embanked, and threatening overflow of adjacent
lands, and on streams used as drains for riparian properties to a con-
siderable extent, in the absence of manufacturing interests, the salaries
of the guards are assessed wholly on the riparian proprietors.
Still again, on streams whose waters are used in irrigation, to the
exclusion of other uses, and where there is no special reason, as first
above mentioned, for calling on riparian proprietors not thus using
water, the salaries of the guards are assessed chiefly upon those who
•divert the water, and the riparian proprietors not diverting water,
pay but a small portion.
These rulings are the outgrowth of custom, and while they are very
generally accepted without opposition, they have met, and still do meet,
in some cases and localities, with very strong opposition from those
who have to pay.
On these non-navigable nor raf table streams, the river-guard is a
supervisor or inspector of maintenance of works, and a police inspec-
tor to report the condition of the streams, banks, and channels, and
to report all acts of omission or commission in contravention of the
general laws and special regulations applicable to the river, or part
of river, placed in his charge. He is assigned a regular beat, over
which he has to go at stated intervals, examining everything pertinent
to his charge, keeping a minutely detailed journal of his operations,
and reporting to various officers, designated in each case, at different
parts of his district. The following is a formula for duty for river-
guards used in the regulations in the department of Seine-et- Oise :
"A river-guard is specially charged with seeing that the present
regulation is observed ; that the execution of the works of cleansing
the channels, remodelling and protecting the banks, cutting away
undergrowth where harmful, mowing the tall grass or rushes on the
banks, etc., are carried out according to the orders of the syndicate
and of the engineer of the district, and under the surveillance of the
mayors of the communes traversed by the water-course, that is the
subject of this regulation.
" The river-guard must report all infringements whatsoever of reg-
ulations committed by manufacturers, riparian owners, or any other
person. He must visit once a week all parts of the river intrusted to
his superintendence, and prove the fulfillment of his duty by the
signature of the local officers in the various parts of his district, to
whom he reports.
" He must keep a daily register numbered and indexed by some
64 FRENCH IRRIGATION LEGISLATION.
proper superior officer, in which he inscribes every day a report of
all the facts that come to his knowledge on his tour of inspection, and
particularly all infringements of regulations, or offenses that come
under his observation.
" Once a week at least he reports to the chief officer of the district,
to whom he is accountable, or to some other specially delegated
authority, to give a verbal account of all that he has seen, to have hi^
register examined and countersigned." — [De Buffon, Vol. II, p. 102.
THK XKCKSSITY KOI! Itl V KK-<;r A !!I>S.*
The'necessity for river-guards is generally dwelt upon by writer*
on the subject of water-courses in France.
De Buffon, perhaps the most authoritative author on the general
subject of hydraulic agriculture and the management of water-course^
in various countries, that has ever written — says on this point:
"Every day experience shows that the operations necessary for the
preservation of stream channels, would soon be without useful results
if they were not kept under strict surveillance by agents beyond the
power of local control. Worse than all, the works of maintenance
and repairs of structures so necessary to insure security of property
from overflow \votild not be executed were the proprietors not closely
watched.
"According to this double motive, wherever the utility of these
works has become well understood, those interested have reeogni/ed
that the influence of a special general agent is indispensable to insure
the measures of construction and police in question."
And in another place this author says:
"This principle is admitted by every one who in the least under-
stands the matter, that water-courses not a part of the public domain
are, in the absence of governmental control, really in a state of aban-
donment, that seems to call forth on the part of riparian owners
manifold offenses against the common welfare, and usurpations of all
kinds."
"The first consequence of this state of things, deplored by every-
body, is the enormous damage thus caused to agriculture, increasing
daily, and so occasioning losses whose amount in coin, if it could he
calculated, would be a frightful sum; lessening the agricultural wealth
of the country, wherever this interest in the streams has for any
length of time been neglected."- [De Buffon, Vol. II, p. 133.
This damage is depicted as arising from injury to stream channels
by want of care and neglect, or the deposit of materials so as to cau-^e
the filling of the channels over long courses, and the consequent over-
flow of lands, or the supersaturation of soils with moisture from the
effects of bad drainage.
And the author then says:
"We could cite localities, rich and flourishing in years gone by,
*See, De Passy, Malapert, Dumont, and De Button.
THE ADMINISTRATIVE SYSTEM. 65
where to-day agriculture is nearly annihilated, under the weight of
calamities which were preventable by proper guarding of the small
streams. Far are we from exaggerating the real situation to attract
attention to the subject we are occupied with, for it is easy to assure
everybody of its truth, or, to say it better, it is a truth too well known,
for everybody can prove it by investigations in many localities, by
the weight of the mournful words: 'We average a crop in but two
years out of five.' " — [De Buffon, Vol. II, p. 134.
" The indispensability of river-guards must be considered as having
been completely demonstrated by experience. The practice of riparian
owners and manufacturers making encroachments on the channels
of water-courses has, in every instance, developed where there has
been no inspection, or where the agents had too extended beats and
could not attend properly to their duties. But where guards have
been in almost daily communication with the users of the water-
courses, regulations have been observed and infringements prevented.
An infringement taken at the commencement is generally discon-
tinued 011 receiving a friendly notice, while suits entered afterwards
are often uncertain in their results."
These words were written in 1856, when the hydraulic service of
the country was not nearly as well organized or extended, nor the
regulations so strictly enforced as they are now; and it is considered
that de Buffon contributed more than any other person to the gen-
eral understanding and popular appreciation of the subject at large,
and thus did much to forward measures of reform which have since
followed.
The sentiment actuating these measures, and the principle on
which they rest, are aptly set forth by the following paragraph from
the same work, written in the discussion of the habit of encroach-
ment upon and interference with stream channels and banks by
riparian land owners:
" Water has, on riparian properties, a natural, primordial right—
the right to a sufficient and proper channel in which to pass. * * *
River waters are, then, from time immemorial, in possession of
canals carved out of the surface of the earth, in dimensions propor-
tioned to the quantity of the flow to be carried. This is possession
on the part of the state. The existence of these canals, as old as the
world, is a title in the state, inscribed in the ground by the hand of
God for the common good. Consequently it is a sound conclusion
that public authority should have the right, and that it should be its
duty, to have them respected and not tampered with by every dweller
on their banks."— [De Buffon, Vol. II, p. 148, etc.
521
66 FRENCH IRRIGATION LEGISLATION.
AUTHORITIES FOR CHAPTER II.
In the preparation of this chapter I have consulted the following named authorities :
De Passy. — "A Treatise on the Hydraulic Service." By M. G. De Passy, a chief engineer in
the Government Corps of Civil Engineers, France : 1vol.; 3d ed.; Paris, 1876. See,
generally, pp. 1 to 130, 297 to 385.
Dumont. — "The Legal Organization of Water-Courses." By Messrs. Adrien Dumont. Advo-
cate, etc., and A. Dumont, Corps of Civil Engineers, France; 1 vol. ; Paris, 1845. See
generally, pp. 1 to 13, 134 to 330.
DC Bufon. — "A Course of Agriculture and Agricultural Hydraulics." By Nadault de Buffon,
an engineer-in-chief of the Government Corps of Civil Engineers, France; 3 vols. ;
Paris, 1856. See Vol. II, Part II, Section 1.
Malapert.— "History of the Legislation of the Public Works of France." By W. F. Malapert,
Advocate, etc.; Paris, 1880. See, generally, headings •' Water-Courses," "Engineers,"
" The Present Republic."
Reclus. — "The Earth and its Inhabitants." By Elisee Reclus; edited by E. G. Ravenstein,
F.R.G.S.; 5 vols.; New York, 1881. See Vol. II, France, Ch. XV.
Dalloz. — "Methodical Treatise on Legislation and Jurisprudence." By A{. I). Dalloz, Sr., and
M. A. Dalloz; 56 vols.; quarto, Paris. See word " Waters," Vol. XIX, pp. 312 to 500.
Debauve. — "Waters as a Means of Transportation — River Navigation." Vol. XIX of authorized
Civil Engineering Manuals. By A. Debauve, Government Corps of Civil Engineers,
France; Paris, 1878.
Debauve. — "Use of Waters in Agriculture — Irrigation," etc. Vol. XVIII (of above named
series).
Proudhon.—" Treatise on Ownership of Property." By M. E. Proudhon; Bruxelles, 1842.
See $ 815-820.
Civil Code. — French Codes. Edition of Alphonse Pigoreau, Paris, 1845.
Civil Code. — Code Napoleon. Translated by Robert S. Richards, M.A., London.
CHAPTER III— FRANCE'2';
WATER PRIVILEGES AND THE ADMINISTRATION OF NAVIGABLE AND
ABLE STREAMS.
SECTION' I. — Water Privileges.
The Uses to which Water is Put, and the Regulation of its Use.
The Rivers and River Works of France.
Forms of Organization of Enterprise.
Applications and Formalities for Water Privileges.
The case of the Bourne Canal.
Obligations of the Grantees.
Conditions of the Concession.
Privileges of the Grantees.
Benefits to the Grantees.
SECTION II. — Regulation of Works.
Government Improvement of Rivers Generally.
Extent and Field of the Hydraulic Service.
The Principles of Cooperation and Compulsion.
Construction of Dams and of Headworks.
SECTION III. — Operation and Maintenance.
General Maintenance of Works.
Cleaning or Dredging of Channels.
Police of Streams.
Water Privilege Rents.
SECTION I.
WATER PRIVILEGES.
THE USES TO WHICH WATKR IS PUT, AND THE REGULATION OF ITS USE.
Water is extensively used from streams in France for irrigation, the
production of power for manufacturing, for consumption in industrial
processes, for domestic, sanitary, and other municipal purposes; and
these four uses will be referred to herein as "irrigation," "manufac-
turing," "industrial works," and "municipal uses."
As opposed to these industries and necessities which generally
require the water to be taken from the streams and in great part not
returned, the interest of navigation, the general sanitary condition of
the stream channels and consequent healthfulness of their neighbor-
68 FRENCH IRRIGATION LEGISLATION.
hoods, the convenience, comfort, and sometimes the necessities of
riparian land owners, and the gratification of the people generally,
demands that the water be left in the streams.
And while thus there is a serious clashing between the two sets of
opposing interests, those who demand the water out of the streams
are by no means in harmony, but amongst themselves are most often
brought face to face by conflicts of interest.
The government owns, controls, and in a business like way, admin-
isters the affairs of all water-courses deemed navigable or floatable for
rafts, or large timber, fostering the interests dependent 011 the use or
presence of the water, and striving to insure the most complete, wide-
spread, and well distributed good results to the people and the nation
from the use of their properties.
To this end, these streams have been studied so that their channels
are well mapped out, their flow at different seasons of the year known,
the requirements of the various industries well understood, and every
work affecting the river's flow, or intended for drawing water from
it, is planned and registered, and its rights or necessities, understood.
There are very many old water- rights on these streams dating back
several centuries; some even previous to the issuing of the edict of
Moulines in 1566, but even towards these the administration has
power to act as may best conserve the interests of the public and pre-
serve the equities which attach to the private interests involved.
THE OBJECT OK ADMINISTRATION.*
Interference is not the object of this systemization, nor is it the
practice to needlessly exercise surveillance or management of the
use of water. The object is to protect each general and individual
interest against the general and naturally unavoidable antagonism of
each other interest, and to administer a common property, which, by
the nature of things, could not by any possibility be administered in
a business like way by any other than a governing power of some
kind.
Accordingly, no work of any sort, kind, or description may be erected
upon a navigable river or a stream floatable for rafts, or timber, or one
declared so, in France (indeed, the rule in this regard is not much
less strict for streams not navigable or raf table, as well), nor can any
water be taken from such streams, except it be taken in a bucket or
other similar hand vessel, without the project for which it is required,
the plan by which it is to be constructed, if a work, or used, if a
* See, De Passy, Dumont, and De Buffon.
WATER PRIVILEGES ON PUBLIC RIVERS. 69
water privilege, has been first submitted to the administrative author-
ities, and publicly made known, criticised, and opposed if necessary.
All interests are put on their guard, all sayings in opposition are
heard, all criticisms listened to. The project is examined by those
knowing well the facts bearing on the whole case, and competent to
judge of the tendency of such facts and their probable results; and
permits are issued or refused after the whole case has been viewed
with all the care and intelligent consideration which its importance
will justify in each instance.
Older rights and those of industries most needful are always pro-
tected in the administration of affairs from day to day ; but no right
is so old or no use so pressing that its owners have the power to con-
trol the division of the people's water, or use it in a manner wasteful
or inefficient, or in any way unnecessarily hamper or hinder the full
development and prosperity of other institutions dependent on water
supply.
This is the object and purpose of the French administration of waters
It cannot be claimed to be perfect, either in theory or practice. That
it is the best devised and in use, befitting application amongst a free
and enlightened people, there can be no doubt. But it is not the best
that can be devised for freer, equally enlightened, and more progress-
ive people. Nevertheless its main principles are to be noted, and the
general ideas of settled and registered privileges, and intelligent ad-
ministration of the element common to their beneficial exercise, is to
be kept in view and incorporated in any system which will assure
freedom from clashing, immunity from litigation, and a full measure
of benefit from the opportunities presented.
RIVERS AND RIVKR WORKS IN FRANCE.*
France has a very much extended and intricate system of water-
courses, several of which are large rivers naturally navigable for long
distances from the sea.
Rising amidst the snows and glaciers of the high Alps, or on the
lain drenched face of the Pyrenees, or in the forest covered and
heavily watered Vosges, or upon the rolling and wooded plateau of
central France, these rivers are generally well supplied with water,
and are sometimes subject to great and devastating floods.
The destructive operations of man and his grazing animals on the
mountains, the industrious tillage and soil loosening on the rolling
grounds, the wasteful and criminally stupid action of municipalities
in the disposal of filth by depositing in river channels, and others of
JSee, Reclus, Debauve (Vol. XIX). Malapert, and De Passy.
70 FRENCH IRRIGATION LEGISLATION.
the nature-consuming influences which have unfortunately accom-
panied the development of civilization, long ago forced the attention
of the French government to river maintenance and improvement
as a national necessity. So that river works, commenced as purely
commercial ventures and enterprises by private individuals and com-
panies and by the government in the centuries that have passed,
have been added to in great number and spread out in class and
character and locality, over nearly the whole country, by the influence
of necessity in preventing harm, as well as that of enterprise in pro-
moting the development of the country.
The lower and larger rivers and those of light slope in alluvial for-
mations have, as a class, been improved by systematic embanking,
training of currents, and dredging, and the higher rivers of greater
grade slopes, been made navigable by dams in series, retaining the
waters, at times of ordinary and low supply, in approximately level
reaches from one to the other, or lessening the grades at those parts
of their courses where the natural slopes of the beds were too great
to admit of a navigable depth with the supply at command, and with
a moderate current in the waters.
These succeeding reaches or levels are, of course, connected at the
dams by means of water locks for the passage of boats, and the dams
themselves in very many instances are partly removable along their
crests, sometimes automatically by the rising waters, and sometimes
by the work of attendants, so as the better to admit of free passage for
flood waters.
In the cases of the higher streams, or parts of streams, the channels
are frequently made floatable for timber and lumber passing from tin-
forests on their head waters, also by means of dams, having perma-
nent \vays or removable weirs through or over which to float the rafts.
NAVIGABLK AND NON-N AVIfJ A !!I,K -HI V KKS.':;:"
It is on the rivers and portions of rivers where it has become nece<-
sary to construct dams for navigation, and those, still higher, which
have been dammed for purposes of floatation, that water privileges are
chiefly sought after for power purposes, irrigation, municipal supply,
and industrial use.
Such water-courses are public property, under full control of the
administration.
Non-navigable and non-raftable tributaries of navigable or raftable
streams, and these streams themselves above the points where they
become navigable or raftable, for the reason that it is necessary in the
#See, particularly, Dumont (£ 88 to 91); also, Debanve. and De Passy.
WATER PRIVILEGES ON PUBLIC RIVERS. 71
interest of navigation, public water supply, equity in distribution of
waters to claimants below, and other reasons obvious from what has
already been written, are also under the control of the administra-
tion, which is authorized to limit all diversions proportionately, or
prohibit them at times, according to prefixed schedules of right^arid
rules and regulations framed for each case, when necessary to the
public welfare.
With respect to the non-navigable arms of those streams which
divide into two or more branches in their onward course, the gov-
erning rule appears to be not so well defined.
When such non-navigable arm again unites with the navigable
channel, it is regarded as being itself navigable, and is subjected to
regulations accordingly.
When such non-navigable branches do not again join the main or
navigable stream below, according to some authorities, they are re-
garded as navigable, and the reverse is true, as stated by other writers.
Still or stagnant waters, those draining from marshes and ditches,
that have free communication from navigable or raftable streams
and whose waters flow the year round, or waters where ferry boats
can enter at all times, and those cared for at the expense of the state,
also make part of the public domain, and a right to dispose of or use
them may be had only by special authorization, as in the case of navi-
gable streams.
FORMS OF ORGANIZATION OF IRRIGATION KNTKRPRISE.*
Setting aside that very large class of cases brought up by recla-
mation, embankment, drainage, municipal improvement, sanitary
regulation, and other developments requiring the construction of
works in or on the banks of water-courses, and which, equally with
the class of cases herein to be considered, come under the supervision
of the administration, but which are not so intimately connected
with irrigation works and the use of water from streams as to justify
their treatment in this report, we come now to a glance at the forms
which irrigation enterprise takes, and then to the various proceedings
made necessary by these varied forms of organization, to acquire the
privileges desired by each.
Projects requiring special privileges to use water, or sanction of
plans to erect works in water-courses, are undertaken either as private
enterprises of individuals to water their own lands, to run their own
mills, or for other private purposes, as cooperative enterprises of
associated land-holders for the watering of their own lands, etc., or
as speculative enterprises by individuals, associated land-holders or
*See, particularly, Burnout, and Be Passy; also, De Buffon.
72 FRENCH IRRIGATION LEGISLATION.
capitalized incorporated companies desiring to sell water to con-
sumers.
These differences of organization, together with the variation in
use to which waters are put under the privileges, as already ex-
plained, make necessary different forms of application, varied for-
malities in the consideration of them, and distinctive forms and
conditions attached to the grants which result.
Instances of individual enterprise are common on streams of all
classes, but most frequent on non-navigable streams, and enterprises
in which there are several copartners, rank with those individual.
Associations of land-holders for irrigation usually take the form of
"syndicates" — a species of organization provided for by a special
law, hereafter to be spoken of (Chap. VII) — and enterprises carried
on by these associations are also most common on non-floatable
streams.
Speculative enterprises are generally on comparatively large scales,
conducted by capitalized companies, and under special grants of
water privileges on the larger streams of the public domain.
In order to divide the subject well, and give a range of illustration
without taking too many examples, the forms, etc., for individual
enterprises, will be spoken of for both navigable and non-navigable
streams, the forms for grantee companies, under the head of naviga-
ble streams, where alone they could be placed, and the forms for syn-
dicate associations, under the head of non-navigable streams, on which
they are most common.
APPLICATIONS AND FORMALITIES H>K WATKK I'KI VI I.K<. i
When water privileges or permits to construct works are desired
by individuals for their own private benefit, in the use of water or
otherwise, on navigable or raftable streams, a formal application must
be made to the prefect of the department wherein the intended work
or diversion is to be made.
Accompanying this application there must be a statement as to the
object for which the work is intended, and the location, character,
and general plan of the work itself. If the application is also for a
privilege of using or diverting water, in addition to the specifications
concerning the works intended or desired, there must be a statement
concerning the use to which the water is to be put, the lands to be
irrigated, if any, the amount desired, etc.
Under the direction of the prefect the project is reported on, pre-
*See, particularly, De Passy, and many Decrees, etc., in the vols. of the Annalles des Fonts ei
Chaussees; also, Dumont.
WATER PRIVILEGES OX PUBLIC RIVERS. 73
liminarily, by the mayor of each commune in which the proposed work
is situated, or where its effects will be directly felt. These preliminary
reports are made after due advertisement and inquiry, and the hear-
ing of objections on the part of those who may care to oppose the
measure. The sub-prefect of the arrondissement, to whom tkese
reports are made, reviews them as he may see fit, and transmits them,
with all the papers and abstracts of evidence, to the prefect.
This preliminary examination is made with the view of calling out
and collecting the sentiment of the people interested, and as a basis
for the other investigations which follow.
The results of the preliminary examination are handed by the pre-
fect to the departmental engineer, or if there is an engineer specially
in charge of the stream in question, they are handed to him, with
instructions to examine and report.
This engineer then holds an inquiry into the case, with the view of
ascertaining the engineering bearing of the works proposed, and the
manner in which other works, rights, or interests may be affected,
and the public utility of the stream subserved. The engineer may
take evidence of interested parties should he see fit, and must always
examine the ground and locality of the proposed works.
He draws a report in writing, which is transmitted, with all the
papers, etc., to the chief of the engineering bureau and also to the
prefect. If it is a case in which the prefect has authority to act, he
goes on with it; if not, he awaits the opinion of the engineer-in-chief.
On the basis of the engineer's report the prefect instructs the sub-
prefect to hold the final inquiry, notices of which are duly published.
All of the papers are opened to inspection, and the plans to criti-
cism, at the mayoralty house of the local commune.
The engineer may be called upon to revise the plans or to modify
the project to suit the case or do away with objections.
Finally, the sub-prefect reports the results to the prefect, and, if it
is a case in which his authority is competent, he issues or denies the
desired permit or privilege; or if his authority does not meet the case,
he refers it to the central administration, which in due time acts by
decree of the council of state.
M'ATER PRIVILEGK GRANTS — EXAMINATION OF PROJECTS. *
Where water privileges on streams navigable and of the public-
domain are desired by individuals, companies, or societies, for specu-
lative purposes, all permits and concessions have to be acquired by
decree deliberated upon in the council of state.
*Same authorities as for preceding subdivision.
74 FRENCH IRRIGATION LEGISLATION.
In this class of cases a still more formal line of proceedings has to
be followed out than those already described for individuals obtaining
permits to water their own lands, or for other purposes of private use.
The application for the grant of privileges, etc., is made to the pre-
fect of the province.
It must be accompanied by:
(1) An outline map of the proposed district to be irrigated, showing
property divisions and other features, and indicating by special tint-
ing the irrigable lands under the project.
(2) A statement in detail of the extent of each district, with the
names and residences of all land proprietors therein.
(3) A statement of the conditions proposed to be attached to the
contract of the grant and accepted by the petitioner.
(4) Preliminary plans, specifications, and estimates of the works,
drawn out in considerable detail.
The project is submitted by the prefect to the proper engineer, who
gives an opinion as to the public utility of and necessity for the
works.
The prefect then indorses his own views in this regard upuii the
report and forwards it to the minister of public works.
Following this and on instructions from the minister, the proceed-
ings heretofore described, in which all interested parties have their
hearing, are had under the supervision and conduct of the depart-
mental administrative officers and engineers.
Upon the results of these inquiries being returned to the- minister,
together with the reports of the engineers, he brings the whole sub-
ject before the council of state, with his opinion and recommenda-
tion.
Should the petition be acted upon favorably, the minister of pub-
lic works enters into a contract with the grantee, in .such \vay as to
guard the interest of the public and of the landholders in the dis-
trict, and a decree is issued granting the privileges desired, and stipu-
lating the conditions attached.
Large works of this kind are considered of such great public value
in France, and local financial conditions are so much against their
undertaking, that the government, as elsewhere explained, on proper
showings being made, engages to pay a subsidy to the 'grantee com-
pany, or individual, as the works are carried out and completed.
THE CASE OF THE BOURNE CANAL.*
I take, as an instance of such a work and grant, the case of the
* See, the Annales des Ponts ct Chausxecs, Laws and Decrees, Vol. CXXVI, p. 451, et seq.: al^o,
De Passy, p. 363, et seq.
WATER PRIVILEGES OX PUBLIC RIVERS. <b
canal of the Bourne River, in the department of the Drome, which
was authorized in February, 1874.
Application was made by three individuals, on behalf of a society
organized in the region of the proposed irrigation; not as a syndicate
of land-holders to irrigate their own lands, but as a company to carry
out a project as a business proposition, and to deal with several syndi-
cates of land-holders desiring irrigation for their lands.
The formalities being gone through with, the minister of public
works entered into a preliminary convention or agreement with the
society, in which terms of the concession were drawn out in detail.
There being some doubt as to the proper proceedings, and a large
subsidy being asked, the matter was brought before the national as-
sembly for confirmation by a special law.
This was passed in May, 1874, declaring the public utility of the
work, sanctioning the terms of the preliminary agreement made
between the minister and the grantees, ratifying the engagement to
pay the subsidy, and prescribing a form for the final contract, covering
the principal points of the preliminary agreement.
I have made an analysis of these documents, grouping their impor-
tant points under suitable headings, and here present the results, as
follows:
OBLIGATIONS OF THK GKANTKKS.
The company is obliged:
1. To build at its expense, risk, and peril, the principal canal, the
two additional diversion canals, the secondary canals, and the tertiary
canals and ditches intended to lead water to each irrigation proprie-
tor's distributing gate.
2. To maintain the principal and the two diversion canals at its
own expense and under its own immediate care, and to maintain the
secondary and tertiary canals and ditches, etc., at its own expense
and under its own care, or, by an arrangement for the purpose, under
the care of the irrigators.
3. To construct at its expense, delivery and distribution works,
for water for domestic purposes, for each commune, with branch pipes
and faucets to each house entrance for each subscriber.
4. To maintain these works and all parts of them, down to pipes
which carry two decilitres (c. ft., 0.007) of water per second.
5. To submit for the approval of the minister of public works,
within the year following the giving of the concession, a detailed
plan of the dam and the head works to be constructed for the prin-
cipal canal and the two subsidiary canals of diversion.
6. To completely finish the principal canal from the Bourne River,
76 FRENCH IRRIGATION LEGISLATION.
in working order, within five years from the date of approval of the
concession.
7. To construct the secondary and tertiary canals and ditches for
distribution, in each instance, as soon as the subscriptions for water
to be delivered by the particular work are sufficient to assure a iv ve-
nue of six per cent on the cost of the work, according to estimates to
be approved by government engineers.
8. To complete each distributing system, when once commenced,
within two years.
9. To commence the subsidiary diversion canals — from the Lyonne
and Cholet rivers— so soon as water is subscribed for to the extent of
five thousand litres (176 cubic feet) per second, and after the com-
mencement of the main canal, and to finish them within two years
after commencement.
10. To reestablish and maintain at its own expense the free flow
of all drainage waters, whose course may be intersected by the works.
11. To do all possible at all times according to the rules laid down
by the administration to stop seepage waters from the canals and other
works built by the company, and stop all undesired wetting of lands
and property.
12. To construct, at its own expense, permanent bridges for cross-
ings of all existing ways of communication, encountered l>y the canal,
according to approved plans, and of dimensions specified in the agree-
ment for roads, etc., of different classes and kinds.
13. To construct for use, pending the completion of these permanent
crossings and the canal, adequate and safe temporary crossings and
side roads for the traffic, according to approved plans.
14. To manage its work according to approved plans so as never to
interrupt traffic on any railroad or other principal line of travel.
15. To conform to all rules hereafter made by the administration
relative to the preservation of safety of travel.
16. To use materials for the several distinctive parts of the various
classes of structures to be built, of the kind and quality preliminarily
specified.
17. To buy and pay for all lands to be occupied by the main, sec-
ondary, and tertiary canals, and other works forming a part of the
system.
18. To pay for, as a servitude, the right of way for smaller ditches
of distribution.
19. To pay all indemnities for temporary occupation or deteriora-
tion in value of lands, or for the stopping of manufactories pending
WATER PRIVILEGES ON PUBLIC RIVERS. 77
construction of any work, and all damages whatsoever which should
occur in consequence of such cessations or the execution of works.
20. To maintain, at all times, the principal canal, with its diversions
and dependencies, in a good and efficient state of repair and order.
21. To do all that can be done to assure, during the irrigating
periods, the full supply of water contracted to be delivered periodi-
cally to the irrigators.
22. To do all that can be done to regularly deliver at all times the
quantity of water engaged for public or private use, for power, ma-
chinery, and industrial purposes.
23. To mark out the boundary of the districts and sub-districts of
irrigation, and make complete maps of the same.
24. To survey, stake out, and prepare complete plans of all canals
and ditches.
25. To plan, describe, and specify in detail all works entering into
the system, before they are undertaken.
26. To pay taxes on lands occupied by all its canals, structures, and
other works.
27. To pay taxes on buildings, sheds, and store-houses.
28. To pay taxes on its canals and ditches.
29. To guarantee to deliver, on demand, at times of lowest supply,
the full amount of water subscribed for by a certain number of sub-
scribers who subscribe first.
30. To suffer a deduction of rents in case of non-delivery of waters,
except as per condition No. 24, following.
31. To suffer roads, railroads, etc., approved by the administration
in future, to be built across its works.
32. To employ such agents and guards for the police of the canal,
for the supervision of its working, as can be sworn as rural police
officers.
33. To bear all expenses of preliminary examinations, surveys,
plans, etc., all expenses of construction, etc., superintendence, gov-
ernment examination and engineering, supervision, and examina-
tions for acceptance on completion.
34. To have the headquarters at Valence, there to have a resident
agent authorized to receive all government communications and
generally transact the business of the company.
35. To deposit within eight days after final organization of the com-
pany, in the consignment fund of the treasury of state, under the
title of a bond, the sum of 75,000 francs ($15,000,) to be held until
the works have progressed to the expenditure of 300,000 francs,
($60,000) as reported by the government engineers, etc.
78 FRENCH IRRIGATION LEGISLATION.
CONDITIONS OK THK CONCUSSION.
»
The grantee has certain privileges, under conditions as follows:
1. That it (the company) always leaves in the water-courses whence
it derives its supply, at lowest stage, a flow below its dams of at least
half a cubic metre (17.5 cubic feet) per second.
2. That the individual distributing headgates, drainage ditches,
and other such works shall belong to the irrigator in each case, and
be built by him or at his expense.
3. That the consumers can compel the company to construct any
certain distributing system when they have subscribed for enough
water to be delivered by it to guarantee six per cent interest on its
estimated cost.
4. That all plans for the main works be approved by the central
administration before construction.
5. That all plans for distribution works be approved by the prefect
of the department before construction.
6. That plans for all works shall first be approved by the chief of
the government civil engineering bureau.
7. That all changes of plans shall be approved by competent au-
thority before the work is executed.
8. That the society shall execute the works under the superintend-
ence of its own agents, but under the supervision and inspection of
those of the government.
9. That all works, during the term of the concession, be subject to
inspection annually, and oftener if deemed necessary in cases of acci-
dent or complaint, by the government engineers.
10. That in all that concerns supply, maintenance, and repairs,
either ordinary or extraordinary, upon the failure of the company
promptly to act, the administration, through the engineers, may carry
out the necessary measures or works at the expense of the company.
11. That the main \vorks will be provisionally received, upon the
favorable report of a commission of inspection appointed by the
administration, each as completed.
12. That the final reception by the central administration will not
take place until one year thereafter.
13. That the report of the commission of inspection be in each case
accompanied by full and final plans and reports of the work done,
prepared at the company's expense.
14. That two copies in full of these plans, reports, etc., be furnished,
one for the department offices, and one for the central administrative
offices, at the company's expense.
15. That the same operation shall be gone through with after com-
WATER PRIVILEGES ON PUBLIC RIVERS. 79
pletion of the secondary systems of works, but that in these cases the
reception be made by the controlling engineers and approved by the
prefect of the department.
16. That if within two years after the date of the concession the
company has not commenced the main works, it forfeit all rights
under the agreement.
17. That if within the term of five years the company has not com-
pleted the main works and fulfilled other requirements specified, it-
forfeit all rights and properties, which are to be disposed of as the
government may direct.
18. That, in the event of forfeiture, the company is to receive from
the party into whose hands the property goes, a sum to be adjudi-
cated by referees.
19. That, if after two trials at settlement, as to amounts to be paid,
there be no agreed result, the company forfeits all, summarily.
20. That forfeiture cannot be enforced if great unforeseen circum-
stances intervene to prevent.the completion of the obligations.
21. That the administration shall determine the duration and time
of the irrigation period each year.
22. That irrigation necessities are to be preferred to those of manu-
facturing.
23. That subscribers may, by payment of a sum to the society,
which, at six per cent, will represent the capitalized value of their
water rents, thereafter be freed from payment of such rents.
24. That no reduction can be demanded on water rents, should a
scarcity of supply result from accidents not to be guarded against by
the company.
25. That subscribers are bound to irrigate land at the rate of one
hectare (2.47 acres), or less, to the litre (0.03 cubic foot) per second of
water subscribed for, and not to divert the water for any other pur-
pose than as agreed upon by the subscription. Nor can any subscrip-
tion be for a less amount, for irrigation, than one litre per second.
26. That the consumers of the water in the sub-district supplied by
each secondary canal may form a syndicate association, under the
terms of the law for such organizations, and take out of the hands of
the company the works of that sub-district, by paying annually, in
bulk, to the company a sum equal to six per cent on the cost of the
works, or a sum equal to the water rents subscribed in the district,
according to the water demanded.
27. That the company may transfer the works in any sub-district
to a syndicate of the consumers for any agreed upon amount; but
must thereafter deliver all water subscribed for in the sub-district.
80 FRENCH IRRIGATION LEGISLATION.
28. That the grant or concession be for a period of ninety-nine
years, commencing from the date of the provisional acceptance of
the main works.
29. That at the expiration of the time of concession, the company
have no more right to the works, but the whole property be turned
over to the state in good condition.
30. That, to insure this last condition, the works are to be inspected
and put in proper condition, under the direction of government
engineers and at the expense of the company, within the two years
preceding the expiration of the term of concession.
PRIVILEGES GRANTED TO THK COMPANY.
On the foregoing conditions the company has the privilege:
1. Of taking seven cubic metres (245 cubic feet) of water per second
from the Bourne River.
2. Of making up this volume at low stages, by taking two cubic
metres (70 cubic feet) from the rivers Lyonne and Cholet. (See con-
dition No. 1.)
3. Of supplying a certain district of 22,000 hectares (54,340 acres)
in area, of which 10,500 hectares (25,935 acres) are irrigable, with water
for all purposes — irrigation, manufacturing, industrial use, domestic,
and municipal purposes.
4. Of doing work and using material of a better class than pre-
liminarily specified, according to the judgment of the government
engineer.
5. Of showing the administration at any time why plans of con-
struction should be changed, and asking for changes.
6. Of representing to the administration at any time, conditions or
facts which has rendered it impossible to fulfill its engagements.
7. Of shutting the water off from the canals, for purposes of repairs
and clearances, for one month each year, at a time to be fixed by the
prefect of the department, and not in the irrigating season.
HKNKl-'ITS TO THE GRAXTKK COMPANY.
And the company is the recipient of benefits as follows:
1. The authority to collect water rents, for the term of ninety-nine
years, as follows:
For irrigation — From all who subscribe before the water is put in
the main canal, for a fixed amount of water annually, at the rate of
50 francs per litre ($269 per cubic foot) of discharge per second during
irrigation.
WATER PRIVILEGES OX PUBLIC RIVERS. 81
From all those who subscribe after the water is put in the main
canal, at the rate of 60 francs per litre ($323 per cubic foot) of flow, etc.
From the first subscribers above named, for an additional amount,
engaged after the water is put in the main canal, equal to that at first
subscribed for, at the same rate of 50 francs per litre ($269 per cubic
foot) of flow, etc.
For all subscribed for by them over this double of the first subscrip-
tion, at the rate of 60 francs ($12), etc.
For domestic, municipal, garden watering, ornamental, and other simi-
lar purposes — For a continual supply, at rates stipulated.
2. The authority to sell motive power, during the term of the con-
cession, to individuals who want to utilize it for factories, at an annual
rental of 200 francs ($40), per one horse-power; a single horse-power
being represented by a volume of 100 litres (3.5 cubic feet) of water per
second, having one metre (3.28 feet) fall.
3. The authority to collect, under the executive power of the pre-
fect of the department, and in the same manner taxes are collected, all
rents for irrigation waters subscribed for, during the last three months
of the year, in advance.
4. The authority to collect, in the manner spoken of above, all rents
for water for domestic, municipal, and other similar purposes, and
for motive power, at the commencement of the year, in advance.
And finally, the government, through the minister of public
works, after the company has shown a subscription for water to the
amount of 3,000 litres (106. cubic feet) per second, or more, engages
to pay the company a subsidy of 2,900,000 francs ($580,000), as fol-
lows:
Ten per cent on final completion of all works.
Two thirds of balance on works done or expenses incurred on main
canals and works, in installments amounting to one third of actual
costs, as reported by the government engineers.
The other third, in the same way, on works of the secondary and
distributing systems, etc.
SECTION II.
REGULATION OF WORKS.
(;OVKKXMKXT 1 M 1'ROV KM KXT OK XAVIC-A BLK KIVKRS.*
The rivers of France generally have high rates of slope and rapid
currents, where works of irrigation and water power are constructed.
i, Debauve, and articles n-lonv.l to hv him in "Ainiakx r/V.s Fonts et C/ifiiwccx ; " also.
Malapert.
6*
82 FRENCH IRRIGATION LEGISLATION.
The channels are through heavy formations, as compared to the allu-
vions of California!! valleys, and the beds are almost always gravelly,
and not infrequently rocky.
Such streams may in their upper courses pass through alluvial irri-
gable valleys, and then again meander through ravines and rolling
lands.
It is due to these characteristics of the hydrographies! system that
water power early came into very extended use in France, and, fol-
lowing the development of trade thus caused, that the demand arose
for making the streams themselves navigable.
Thus, the system of canalizing rivers by means of dams, in series,
at intervals along their course, making nearly slack water navigation
between each two, naturally came into being, and has resulted in a
high degree of skill and perfection of practice in the general dispo-
sition of such works and arrangement and construction of their parts.
The French masonry and iron frame movable dams of several dis-
tinct types and patterns, are models of construction in this line for
engineers of other countries, where similar conditions obtain and
like purposes are to be subserved.
The government civil engineers have charge of such rivers through-
out their valley course, and it is the endeavor to bring all works into
harmony with a system best calculated for the public utility of the
streams and the safety and well-being of the interests along their
banks.
KXTKNT AND FIELD OK THK HYDKAUIJC SKUV 1CK.*
The hydraulic service of the public works bureau comprehends
the supervision of river bank and channel works relating to the crea-
tion of power for manufactures, diversion of water for industrial or
other similar uses, for irrigation and colmatage^ the cleansing or
dredging of channels, improvement of channels, construction of em-
bankments and other defenses against floods, draining of marshes,
sanitary improvement of moist lands, and agricultural drainage.
By the very nature of the objects contemplated, the service is divided
into two sections — one dealing with those cases where the water is an
auxiliary in the purpose held in view, the other with those cases
where it is an enemy to be encountered in effecting the desired end.
Works connected with manufacturing, industrial, and other uses,
irrigation, and colmatage, fall in the first section, while all others
mentioned above naturally rank in the second.
*See, De Pa spy. Malapert, p. 417 and elsewhciv.
$ Colmatage is the French word for warping, silting-up, or enrichment of lands, by leading
muddy waters upon and causing the silt to be deposited on them. It is extensively practiced
in many quarters of France, Switzerland, and Italy.
REGULATION OF WORKS ON RIVERS. 83
THK PRINCIPLES OF COOPKRATION AND COMPULSION.*
When the water is an auxiliary, enterprises are frequently carried
out by individuals, as in manufactories, etc., and always by voluntary
action. While in irrigation and colmatage enterprise, the initial
movements are frequently on the part of collective interests, but
always voluntary, so far as each individual at interest is concerned.
When, on the contrary, the water is an enemy, as in the improve-
ment of channels, sanitary drainage, works of defense against floods,
there is always an indissoluble common interest at stake, so that the
movement must be for the collective benefit of all land within some
certain district, primarily, and for that of the public generally as
well, or else not for the benefit of any. In these cases the enterprise
must necessarily be on the part of the collective interest of all con-
cerned, and the law submits the minority to the will of the majority
of interested land holders in the district. " It cannot be allowed,"
says De Passy, "that enterprises so essential to agricultural develop-
ment be defeated by the resistance or indifference of an ignorant and
capricious minority."
Moreover, if it is recognized that the enemy to be fought inflicts
injury on the public interests, the administration has the right to
interfere and render obligatory the common action of all interested
parties in the. district, in spite of the opposition even of a majority.
REGULATION OF THE CONSTRUCTION OF DAMS.<
Whenever possible, the holding up or diversion of water for a man-
ufactory, an irrigation canal, an industrial establishment, or other
use (requiring the construction of a dam in the river and acquirement
of elevation in the water plane to give a head for power or for flow
out from the channel) is effected by a work which serves at the same
time to hold back water for the promotion of navigation.
The height of such a dam is limited by the elevation 9f the plane
of safety to the lands which might be flooded by backwater were it
carried too high, and, at the same time, it is governed by the require-
ments of navigation for a certain depth of water in the reach above.
The cost of such works, in so far as they relate exclusively to navi-
gation, is borne by the state; the grantee of the water privilege, for
whatever purpose the use may be, exclusively bearing the cost of his
sluices and gates.
When, however, dams are designed and constructed for the com-
mon benefit of navigation and some water privilege establishment,
* See, De Passy, pp. 7 to 1 1.
$ See, De Passy, pp. 299 to 324.
84 FRENCH IRRIGATION LEGISLATION.
they are paid for and maintained at the joint expense of the state
and the water grantee, in proportion to their respective int< ;
unless special ancient agreements determine the distribution.
The distribution of expenses for construction, as well as for main-
tenance of works built conjointly by the state for navigation and
water grantees for their purposes, is made before the works are exe-
cuted, in every case by the central general administrative authority—
the whole council of state in general assembly — and is promulgated
in an administrative decree.
The grantee's part of the cost is fixed at a sum to l>e paid annually,
•ind not in a sum paid at once. Thus the cooperation of the grantee
with the government results in his paying an annuity for his benefits
from the construction, and not in his paying at once, in part for the
work itself, and thus acquiring a right of property in it; for works of
this character, forming a part of the essential system for navigation,
must remain always public property.
The determinations of the council of state in these matters are
based 011 the reports and estimates of the government civil engi-
neers, and are also shaped in accordance with equities arising from
the peculiar circumstances of each case, taking for comparison, if
need be, the results of other similar works carried out under parallel
circumstances.
Whatever is paid by the water-privilege grantee, goes into the co-
operation fund for public works, under the control of the minister of
public works.
Such works are built and repaired and wholly cared for by the
administration, and, as far as necessary, under the advice or direc-
tion of the government civil engineers.
In cases where a new dam, not necessary for navigation, is to be
established for the benefit of a water-privilege grantee, he is obliged
to provide in his plans and construct at his expense, a proper lock for
the passage of boats.
Should the administration recognize in the work a benefit to the
river navigation, the government may contribute to the cost of the
lock.
Plans for works constructed by grantees alone, are always subject
to revision by the government civil engineers, and the carrying out
of such works is subject to their inspection and approval or condem-
nation.
REGULATION OF WORKS ON RIVERS. 85
RKGULAT10X OF THK CONSTRUCTION OF HKADWORKS."
Works designed for taking water for any purpose of a holder of a
water privilege are always constructed and maintained at his expense,
and when in close connection with a dam for navigation purposes,
are carried out by the administration, or under the immediate super-
vision and superintendence of the government civil engineers, or, if
not connected with a navigation dam, they are subject to supervision
only, the plans having been approved.
As waters for manufacturing, irrigation, and other grantee pur-
poses (except in the case of supply to municipalities for domestic
purposes), can only be drawn from the excess of supply over demand
for navigation purposes, the determining and gauging of the quantity
allowed, so that at times of scarcity proper equity may be observed in
apportioning the available surplus, becomes a matter of extreme im-
portance.
The forms and dimensions of the sluice ways, or gate openings, the
elevations of the sills, with respect to that of the dam's crest, and the
legal low water plane of the river, always form the subject of a special
clause in the decree authorizing the establishment of the works, and
hence any modification in the plan of a dam or headwork intended to
divert water, can not be made until duly authorized by government.
If the quantity of water to be taken in any instance amounts to a
considerable volume per second, as is commonly the case in works
intended for irrigation, it becomes necessary, in providing for the
regulation of the discharge, not only to determine and fix the size and
form of the head-gates, but also the form of section and gradient of
the canal or other water- way leading therefrom for a certain distance
varying with its size.
" For, in all cases, it is to be remembered that the sluice for taking
water is the sluice for guarding it."
If the quantity to be taken is small, in the case of irrigation, it is
deemed sufficient to provide for taking it through a culvert or pipe of
determined area and under a fixed head.
In cases where water is delivered in rather small quantities for dis-
tribution by sale, it is parted out into a "sump," and then more accu-
rately measured over a gauge weir, of which the crest is arranged so as
to preserve a fixed head of water producing the requisite discharge.
*See, De Passy, pp. ,">06 to 316: also, Dumont.
86 FRENCH IRRIGATION LEGISLATION.
SECTION III.
OPERATION AND MAINTENANCE.
GENERAL MAINTENANCE OF AVOHKS.
Concerning the subjects of this heading, very niuch has necessarily
been said under those which precede, nevertheless, it will be well to
call attention to some leading points already mentioned, in connection
with matters not yet spoken of.
The care of all navigable streams in France is committed to the
administration; all public works pertaining to the stream as a navi-
gable channel, or as a drainage way of the country, are in care of the
officers of the hydraulic service, and their assistants and subalterns.
These officers are, as a general thing, civil engineers, holding com-
missions as such, and are under the government public works bureau.
The maintenance of all private works bordering upon, or in such
streams, and calculated to affect them as navigable channels, or as
natural drainage ways, is subject to conditions imposed in terms of
the grants of privilege, and subject to the general and particular
regulations of the administration, as executed by the officers of the
hydraulic service.
Works of navigation, are, of course, maintained and operated solely
by the government, the tolls on navigation, which are very low in-
deed, defraying these expenses.
Works built on joint account of state and private enterprise, are
maintained and operated under government direction, at joint cosi
according to prefixed agreements, or as may be equitable under the
circumstances, or, again, as may be customary from ancient times.
Works solely for the benefit of private interests are maintained
under administrative supervision, at the expense of the owners, and
if the work is not properly and promptly done, the administration,
if public or communal interests are threatened from negligence or
faulty construction, may carry it out at the expense of the owner or
responsible party.
Besides the special and local operations of maintenance applicable
to works on the streams, there is the care of and cleansing or dredging
of the channels themselves, and the police of their banks.
CLEANSING OK DREDGING OK CHANNELS.*
The necessity for cleansing the channels of water-courses arises
largely from the effects of natural causes, such as abrasion of stream
*8ee, De Passy, pp. 323 to 328; also, Dumont.
SUPERVISION OF WORKS AND RIVERS. ^;J
banks and denudation of lands drained; but artificial causes, such
as deposits from boats, and from the shores by the inhabitants, by
towns, and industrial establishments of all kinds, contribute largely
to the results.
The dams built in the channels for the promotion of slack water
navigation, or for the creation of power heads for manufactories^ or
for whatever purpose, prevent the scouring of the bed, and serve to
cause deposits of sediment and filth that otherwise would be carried
away by the currents.
Upon navigable .and raf table channels, of which the bed and banks
are public property, the clearances are made chiefly at the expense of
the State.
When the dams on such streams are used to create water heads for
power purposes, as well as for navigation, the holders of the water
rights are called upon to pay part of the expense.
When the administration believes that the cleaning work is neces-
sary only in the interest of navigation or raftage, its cost is borne
solely by the government.
When the clearings are necessary solely in the interest of public
health, and are made necessary by the deposit of tilth in the channel,
from towns, residences, and establishments on the banks, the expenses
are charged for the most part to the riparian owners and the towns,
and in a small degree to the state and the manufacturers whose dams
increase or favor the deposits.
Such cleansings are ordered by the superior administration, which
determines the basis of the work and the distribution of expenses, on
the reports of the engineers and local administrative officers.
Upon non-navigable and non-floatable water-courses which have
not been declared to be dependencies on the public domain under
article 538, civil code, and which have not been improved in the
interest of navigation, the expense of cleaning and caring for the
channel generally, is borne principally by the riparian land owners,
as will be seen in the next chapter.
POLICE OF STREAMS.'*
Works erected and acts committed in the channels or on the banks
of non-navigable or non-raftable water-courses, when they present no
obstruction to free flood -flow, as they only give rise to questions be-
tween private interests or individuals, are subject only to regulation
by the law as administered by the courts.
In these cases it is necessary only for the administration to examine
#See, De Passy, pp. 326 to 334, and elsewhere; also, Dumont, De Buffon, and Malapert.
88 FRENCH IRRIGATION LEGISLATION.
the project with the view to determining whether or not the stream
channel or the public interests are likely to suffer, or the flood plane
likely to be affected by its results.
Works located upon navigable or rat'table streams when not duly
authorized by the administration, constitute infringements of the
laws of the commission of public ways, and are subject to repression
by the council of prefecture.
The legislation in the matter of police of public water-courses and
canals is found in the judgment of the council of state of the king,
dated twenty-fourth June, 1777, confirming and completing form* T
rules, notably those of forests and waters, dated August, 1669.
The various articles of the judgment of 1777, specify the penalty
attached to each kind of offense enumerated.
Besides this old general law, there still exist in force a number of
ancient special enactments applicable to the principal rivers and to
certain navigation canals, emanating from the king in council of
state, from the governors of provinces, and from other authorities
who under the ancient regime exercised the ruling power.
Other ruling enactments on this subject hear dates subsequent to
the revolution, but none of them are of recent origin except that of
twenty-third March, 1842, although there1 are many decisions under
these laws, that interpret and modify their application.
The penalties fixed in the old laws were very severe in proportion
to the offenses to which they were attached, and the councils of pre-
fecture, in the administration of the laws, had no alternative but to
apply them in full vigor, for the mitigation or repression of such penal-
ties could only be authorized in each particular case on an appeal to
the chief executive power of the council of state.
The law of 1842 gave to the councils of prefecture the authority to
gauge the penalties to the offense in each case according to circum-
stances, between 16 francs ($3 20) as a minimum and 300 francs ($60)
as a maximum for the generality of ordinary offenses.
Works having a direct effect to the detriment of public interests
may be summarily removed on the order of the prefect, and formerly
unauthorized works on public water-courses, whether injurious or
not, could be similarly disposed of without delay. But now in cases
where no injury is done or immediately threatened, a delay for a
reasonable time is granted to give the owner of the works time to ap-
peal to the superior administration for a proper authorization for his
enterprise.
The administration of all laws governing the police care of public
streams in the interest of the public, whether protecting navigation
SUPERVISION OF WORKS AND RIVERS. 89
or other particular interest, is left to the prefects of departments. But
a large class of cases, where the laws have to be interpreted, and
where private interests are affected, find jurisdiction before the courts.
WATER PRIVILEGE RENTS."
Every concession of a water privilege on streams of the public-
domain is subject to the charge of an annual rental which goes into
the general treasury of the state for the benefit of the public works.§
In the case of water heads for manufactories, the rent is based upon
the purchasable value of the gross power conceded, independent of
any special advantage which the grantee may get from it, and of the
kind of employment to which it may be devoted.
The rate of rents for manufactory water-powers is a sum per annum
equivalent to one two-hundredths of the purchasable value of the
motive power measured in horse-power.
The purchasable value of the horse-power is determined by pre-
cedents 011 the stream in question, and on other similar streams where
water is used for like purposes.
Water privilege rents for irrigation works are rated upon the basis
of the increase in yield due to irrigation, and are fixed at a sum
annually paid, equivalent to one tenth of the increase in value of
produce on the land irrigated over its produce before irrigation.
Industrial purposes include all the purposes of manufacturing,
except that of creating motive power by means of water wheels; thus
water for making steam, for condensing steam, for the use of paper
mills, sugar refineries, tanneries, bleaching works, cloth printing
works, etc., is ranked as used for industrial purposes.
Whether taken by means of pumping machinery or not, if the vol-
ume of water in any instance drawn directly from a public stream
for an industrial use is sufficiently large, in proportion to the supply
at any season, to sensibly affect, or, in the opinion of the engineers of
the administration, injure the normal regime of the stream, the water
privilege is ranked with those for water-power purposes.
For all concessions of water for industrial purposes, the basis of
annual rental is a fixed sum which is adjudged for each particular
case, the minimum being one franc and an additional ten centimes
per cubic metre or fraction thereof of water taken per day.
Water heads for municipal domestic purposes are governed by the
same rules as those for industrial purposes.f
*See, De Passy, pp. 306-307, 314-316, and elsewhere; also, De Buffbn.
# Financial Laws. June 16, 1840; July 14, 1856.
f Decrees March 25. 1872; April 13, 1861.
90 FRENCH IRRIGATION LEGISLATION.
When the object of the works is simply the supply of domestic
requirements, without revenue being derived by the sale of the water
to consumers, the rent is fixed at the nominal sum of one franc (20
cents) per year; the object being merely to assert and maintain the
right of the state to regulate and control such matters.
When the intent of the grantee, whether a town or a company, is to
sell the water to consumers and derive a revenue from it, the case is
ranked as an industrial use, and an addition to the fixed amount of
one franc, a charge of ten centimes per cubic metre (35 cubic feet)
of water drawn daily, is imposed.
The amounts of all annual rentals are based on the reports of the
government engineers as to volumes diverted and according to gaug-
ings and records, and when a gauging is made and a record is kepi,
the grantee is obliged to assent to its correctness or at the time show
it to be erroneous.*
Back rents for water can be collected for five years, but recovery
for a longer period of time is debarred by a statute of limitations.
All questions as to rates for rents are considered by the ministers of
public works, and of finance conjointly.
Without meaning in any way to limit the duration of water conces-
sions, the rents are revised every thirty years, for, although revokable
at any time, water-right concessions on public streams are given for
an indefinite time, and in most cases practically for ever. Any other
system would be opposed to the development of industrial prosperity.
Water privilege heads held in private control previous to the edict
of 1566 declaring the inalienability of the public doma in, are free from
the charge of rents, as are also those whose holders have titles derive* 1
by purchase from the government.
AUTHORITIES FOR CHAPTER III.
In the preparation of this chapter I have consulted the following mimed authorities:
Dumont.— [Work cited as an authority for Chapter II.] See Book II, Chapters I. II, and III.
De Passy. — [Work cited as an authority lor Chapter II.] See pp. 7-11: supplement, pp. 297-
334.
Malapert.— [Work cited as an authority 'for Chapter II.] See (he headings, " The Actual lie-
public," and " Engineers."
De Buffon. — [Work cited as an authority for Chapter II.] See, generally. Vol. II, Part II.
Heclus. — [Work cited as an authority for Chapter II.] See, generally, descriptions of France.
Debauve.- — Vol. XIX. [Work cited as an authority for Chapter II.] See, generally, description
of river works and systems.
Les Annales dcv Fonts et Chausseex. — A semi-official publication of the French Government
Corps of Civil Engineers: comprising volumes of Technical or Engineering matter,
and others of Laws and Decrees relating to Public Works and the Engineering Service.
generally. See late volumes, and, particularly, Vol. CXXVI, pp. 451 et xeq.
Decree of the Minister of Finance, May 15, 1863.
CHAPTER IV.— FRANCE (3>;
WATER-RIGHTS ON, AND THE ADMINISTRATION OP NON-NAVIGABLE STREAMS.
SECTION I. — Rights to the Use of Water.
Water-rights previous to the time of the Code Napoleon.
Riparian Water-rights under the Code.
Nature of the Riparian right, and tendency of interpretations.
The right of Irrigation — absorption of water, etc.
SECTION II. — Supervision of Construction of Works.
Decentralization of the Administration.
Powers and Duties of Local Administrations.
Applications for sanctions to construct Works.
Obligations and Conditions attached to Permits.
Construction and Regulation of Dams and Headworks.
SECTION III. — Regulation and Operation — Works and Waters.
Necessity for Regulations and Administration.
Administrative Authority to make Regulations.
Principles adhered to in making Regulations.
General Rules as to Division of Water Supply.
Regulations of Irrigation.
Division of Waters between Claimants.
Regulations for Streams.
Police and Cleansing of Water-courses.
SECTION I.
RIGHTS TO THti USE OF WATER.
WATER-RIGHTS PREVIOUS TO THE TIME OK THK CODE NAPOLEON.*'
As we have seen, streams not navigable nor floatable — those upon
which tolls could not be collected for navigation or rafting facilities, or
heavy rents derived from ferrying franchises — having been claimed
and controlled, together with all other water-courses, by the feudal
counts during the early centuries of modern ages, were also included
in the property-right claim of the kings, and originally contended for
by them against the counts; but in the course of time the struggle was
made only for the control of the larger water-courses, from which
*See, particularly, Dalloz, Vol. XIX, pp. 312-319, and Dumont; also, De Passy, and Malapert.
92 FRENCH IRRIGATION LEGISLATION.
revenues could be derived, and those of the smaller class were left to
the owners of the lands adjoining them.
Matters appear to have rested in this way for a long time: tin*
exclusive right to water, for milling and irrigating purposes, from
streams too small to be regarded by the kings as of public importance,
according to the standard of the times, being accorded to the owners
of the bank-lands, apparently upon the ground that they owned the
beds and waters as well as the banks.
In later years, when it was found necessary in the public interest,
and to rid the courts of a vast volume of litigation, for the govern-
ment to supervise the placing and maintenance of structures in the
channels and the diversion of waters, it appears to have become
recognized that the waters were in reality a common property, and that
the bank proprietors had only a right to use them and not a right of
ownership in them.
Still there was the open question, to whom were the waters a com-
mon property: the riparian proprietors claiming to be the owners in
common of the waters of each stream, and submitting to the control
of the streams by the government only as it was based upon the gen-
eral police authority of the nation; while the government asserted its
right to control, not only because of its general police powers, but
because of the fact that the waters were really the common property
of the whole people and not of the riparian proprietors alone, and,
that public interests were to be promoted as well as other private
interests guarded by it, and that, hence, its mission was one to promote
public utility as well as to repress or prevent abuse of private priv-
ileges in the protection of other privileges.
CONFLICTING INTERESTS ON THE STUKAMS.
The continued and growing abuse of the riparian water-right privi-
lege brought about an increased necessity for upholding this latter
view, so that from having been a governmental administrative meas-
ure it became a popular sentiment, and owners of lands not riparian
to the streams asserted a right to waters for their irrigations, on the
ground that such waters were a common property of all the people;
and asserting that the riparian owner's privilege of using them was
not an exclusive privilege, but that upon a grant or permit from gov-
ernment, any land owner could divert them for use on his lands.
In this view of the case by far the greater number of land proprie-
tors were interested, so that the governmental policy of control was
strongly upheld.
But now manufacturing interests, which were wide-spread and
WATER-RIGHTS ON SMALL STREAMS. 93
becoming powerful, took alarm. The owners of the hundreds of
mills and manufactories depending on water supply for power and
other purposes, scattered along the streams all over France, and hold-
i ng rights, many of them dating back in the times of the counts, and
all valuing the riparian right as a protection to their water supply,
were arrayed against the advancing theory — of the waters belonging to
all the people and due to all the people for use.
The government from time to time brought to face the question in
deciding points at issue, continued to uphold the theory of the waters
of these small streams being a common property of all the people,
and framed its own measures accordingly, but no step was taken to
accord land owners other than riparian proprietors any right to use
them.
RIPARIAN \\-.-\TKR-RKJHTS UXDKR TH K CODB.*
The case appears to have stood in this way when the Code Napoleon
was promulgated in 1804.
This code contained provisions (articles 713, 714) which in course
of time were recognized as placing the ownership of the waters of the
smaller class of streams in the nation, but declared the use of things
of this class to be common to all.
Left with this provision only, the waters of these streams would
have been thrown open to use by all the people; "the laws of police
regulating the manner of enjoying them," as the code said.
But article 644, under the head of servitudes, seemed to place a
special servitude (right to use) on these waters for the benefit of
riparian estates. It reads as follows:
" He whose property borders on a running water, other than that
which is declared a dependency on the public domain by article 538,
under the title 'Of the Distinction of Property', may employ it in its
passage for the watering of his property."
" He whose property is intersected by such water is at liberty to
make use of it within the space through which it runs, but on condi-
tion of restoring it at the boundaries of his held to its ordinary course."
The provisions of this code have given rise to many questions, or
rather to the old questions in new form, accompanied by an infinite
number and variety of side issues. The old question as to whether or
not the riparian water-right privilege was an exclusive right, was
left open with additional complications.
The government had its hands strengthened in its policy of control
and regulation, and the fundamental principle contended for by the
owners of lands not riparian to the streams, as well as by the govern-
ment, was recognized.
*See, particularly, Dumont, pp. 171-208, and De Passy; also, Dalloz, Vol. XIX, pp. 379-390.
94 FRENCH IRRIGATION LEGISLATION.
But riparian proprietors claiming and being, in some cases and
under some circumstances, allowed ownership of the beds of the
streams, still claimed ownership of the waters by virtue of article ?>~>'2,
which reads: "Property in the soil imports property above and
beneath."
And a stand was thus made by riparian interests, on the point that
as the waters of the streams rested on their lands, they belonged to
them, and, hence, articles 713 and 714, about "things which belong to
no one," had no application to them.
Article 645 provided expressly for the settling of disputes which
should arise under the preceding article at least, in the following
language:
"If a dispute arise between proprietors to whom such waters may
be useful, the courts, in pronouncing their judgment, must reconcile
the interest of agriculture with the respect due to property; and in
all cases, particular and local regulations on the course and use of
waters must be observed."
Under this article, all questions as to rights to use waters from non-
navigable and non-raftable streams have been carried before tin-
courts, and these have not directly recogni/ed the claims of the back
land owners, leaving the riparian proprietors in possession of the
field.
The central administrative authorities were appealed to to exercise
their authority in behalf of the land interest which had sustained its
authority and theory of public ownership and government control of
the waters.
But the administrative authorities have consistently replied to these
appeals that, under article 645, they had no jurisdiction in this class
of cases: that the courts were the only resort of those claiming water
in this class of streams, in which to make good a claim.
THK RIPARIAN WATKR-KUi HT AM) THK KKJHT OF WAY.-
Another point which for a long time was in favor of the riparian
proprietors, was the fact that there existed no law under which a
back land owner could get the right to conduct water over the prop-
erty of those between him and the stream, even though he had the
right to it, and no law under which lie could get the right to abut a
dam against banks belonging to others, even if he could get the right
of way by amicable purchase, and the water also, and, furthermore,
the administration could not grant such privileges.
Companies or syndicates contemplating extended irrigation enter-
*See, particularly, Dumont. pp. 225-256. 259. 280, l>e 1'assv, Dalloz.
WATER-RIGHTS ON SMALL STREAMS. 95
prises were granted water privileges and the right to construct works
by decrees of the central administration, and their works being
declared of public utility, they were authorized to condemn by process
of law the right of way for their main canal. But no single land
owner, and no enterprise not declared to be of public importance, could
get right of way, except by private negotiation.
In 1845 a law was passed giving land owners generally the pewer to
secure rights of way to conduct waters to which they had a right of
use, as a servitude, over lands not their own.
This was ostensibly in the interest of riparian proprietors who had
to take water out of the streams above their own lands to get it high
enough to conduct on to them. But it was also a step in the direction
of the theory of the back land owners.
In 1847 a law was passed giving the owner of one bank a right to
abut his dam against the bank owned by his opposite neighbor, under
certain regulations and administrative sanction, etc.
This also was a step towards breaking down the exclusiveness of
the riparian right to the stream.
Until within the past few years a riparian proprietor, upon the basis
of his claim of ownership of the banks and bed of a stream, so far
controlled the channel, as against other private individuals, them-
selves also riparian proprietors, as to deny the right to construct a dam
below in such manner as to back the water up into the channel oppo-
site his land, even though there was no apparent material injury to
him caused thereby.
But now the court of cassation, at the head of the judiciary of the
country, and the council of state, at the head of the advisory depart-
ment of the executive branch of government, have each decided that
"the fall or slope of a channel is not the property of the land proprie-
tors, and that it enters into the class of things which by the terms of
article 714, Code Napoleon, do not belong to anybody, of which the use
is common to all, and of which the enjoyment is regulated by the
police laws;'7 and the administration grants a proprietor the right to
back water into the channel in front of lands above him, by means of
his dam, so long as he does not injure or endanger the lands in any
way, take away from the efficiency of other works above, or endanger
the public interest.
Here again A\ras a step towards the abolition of the exclusive and
complete riparian control of the stream, and a movement towards a
declaration of public ownership of the channels themselves.
And thus the matter stands. The riparian proprietors still monop-
olize the right to use the waters from streams of this class; indeed,
96 FRENCH IRRIGATION LEGISLATION.
i n this respect they have an exclusive and complete right as against
allcomers, except "public utility," "public health," and "national
welfare."
"To exercise the right of irrigation, it is necessary to be a riparian
proprietor. If, then, a water-course comes to change its bed, the
ancient proprietors, who are no longer on the new bed, no longer
preserve upon it the right of taking water for irrigation, rior, conse-
quently, of making constructions destined to conduct the waters upon
their properties." — [Dalloz, Vol. 40, word "Servitudes."
The administration, representing the whole people and the nation,
by virtue of its police powers and its guardianship of public property
and public weal, exercises a control over the streams, a regulation of
all works placed in the streams, and a surveillance of all use made of
the waters.
XATURK OK THK KH'AIUAX KHJHT, AM) TKXDKXOY OK I XTKIU'RKTAT I O \ -.
The nature of this riparian right to water on non-navigable streams
in France may be a little difficult to comprehend.
It is so far a right to have the water left in the channels that the
administration, on the ground of "police regulations," "sanitary pro-
visions," or "public utility," may refuse to sanction the construction
of a work for diversion, which has not proper provision in the way
of sluice-gates io let water enough go on down stream for domestic
purposes of all bank owners below, at the driest times; nor will it
sanction the construction of a dam, when it appears that owners below
will be deprived of water by its effect, although the projector be a
riparian proprietor and has a right to water under the code.
And yet, there is no element of the principle of prior appropri-
ation— first in time first in use — about this right.
The code dedicates these waters to the use of him "whose property
borders on," or, "whose estate is intersected by such waters."
It is only in the regulation of affairs by the courts and the adminis-
tration that any recognition of priority of right is found, and even
then, in the supervision of the use, the principle is not closely ad-
hered to.
The code merely gives every riparian owner a privilege of using the
water. There was no recognition of old and established rights in this
connection, although many such existed; nor any rule laid down
except that "in all cases particular and local regulations on the course
and use of waters must be observed," and that "the interest of agricult-
ure" must be reconciled "with the respect due to property."
* See, particularly, De Passy, pp. 23,24, Dnmont, pp. 171-208: also, Dalloz. Vol. XIX, pp.
379-390, and the Annalcs dcs Pont ft <'//</ i/.v.sr/*, vols. Laws and Decrees (recent).
WATER-RIGHTS ON SMALL STREAMS. 97
And yet this riparian privilege is so far a right to take water out of
the stream, that, though fully used, the courts can recognize a right
for a new water privilege, and the administration may sanction the
works necessary for availing of it, and, in the course of the division of
waters, the new work will get its share.
This rule, however, would not be carried so far, presumably, as to
deprive any user of water, of all he actually required to accomplish
his purpose, but it would force him to economize in his use.
No matter how old a privilege may be, the administration in the
public interest has always the right to turn sufficient water past the
dam to satisfy the personal wants of proprietors below, and thus guard
against unsanitary results; and it can even compel the construction
of a sluice-way in the dam, to be used for this purpose.
THK RIGHT OF IRRIGATION — ABSORPTION OF WATER, ETC.*
For many years after the promulgation of the code it was held that
the obligation imposed upon the riparian proprietor of " restoring it
(the water) at the boundaries of his field to its ordinary course," after
use, as set forth in the second paragraph of article 644, applied as a
condition to all use of water allowed by the article, and, hence, there
could be no material loss by absorption in irrigation.
The irrigations in France at that time were very generally those of
meadow lands situated closely along the stream borders, and a very
large proportion of the waters run on to them flowed off again.
The court of cassation (Supreme Court of France), in 1844, August
21, rendered a decision on this point as follows:
" Running water is regarded by the law as a common property.
Riparian proprietors on a water-course naturally have equal rights
to the use of the water, although they cannot exercise this right
simultaneously.
"If on account of the advantage of its topographical position the
proprietor of higher land on a stream, exercises his right before the
proprietors of lower lands, he is not the less obliged by this position
after having used the waters, in the interest of agriculture and indus-
try, to return them to their usual bed, in order that the proprietors
of lower lands may use them in their turn.
" When the proprietor of the higher land possesses at the same time
both banks of the stream his right is more extended; he can then
turn the water-course from its bed within the extent of his domain,
and take the waters for use where he wills on his estate, being obliged
to return them to their ordinary course where it leaves his property.
" This proprietor will not have to return the same quantity of water
which he has received, or any certain quantity of water determined,
but he must economize and use water in a just measure so that the
•;'rSee, Dumont, De Passy, and Dalloz, as already cited; but particularly, late volumes of
Laws and Decrees of the Annales des Ponts et C/taus$ec$.
721
98 FRENCH IRRIGATION LEGISLATION.
proprietors of lower lands may exercise their rights also." — [Decis-
ion—August 21, 1844.
Again in a decision, rendered in 1847, the same court decided that
an upper proprietor, no matter how extended his estates on both banks
of a stream, had not the right to absorb all the water on his lands, to
the detriment of a lower proprietor, and that the lower proprietor
had a right to a regulation whereby he would be assured a part of the
supply, in accordance with his needs and rights as adjudged by ex-
perts. *
THK QUESTION, ONE FOR KQUITABLK ADMINISTRATION.
De Passy, writing in 1878, and a semi-official book for the informa-
tion of the members of the national hydraulic service, as we'll as for
general sale, says:
"An obligation on the irrigator to return the \vat<T when it leave-
his lands, to its natural channel, does not result from article *', I } of the
Code Napoleon. That article comprises two paragraphs, distinct and
independent from each other; the first regulates the right of irriga-
tion, which may be exercised by the proprietor of one bank: tin-
second recognizes in the proprietor of both banks more extended
rights, such as industrial use, etc.; and it is as a restriction on these
last rights, and in the second paragraph only, that is written the obli-
gation to return the water upon its exit from the Ian. Is traversed, to
the natural channel." — [De Passy, p. 50.
As a matter of fact, the streams are controlled, and the waters
apportioned out to those who have claims on them, by administra-
tive regulations. Economy in their use is enforced, according to the
experiences of the country; so that the question is kept out of the
courts more than it used to be, and the courts recognize the fact that
they can make no decision that can settle the point on principle, or
even in any particular case for all contingencies that arise. The
later decisions are not decisive as to principle; they lean towards the
view above quoted from De Passy, speak of "returning the drainage
and residue of the waters," only, to their natural channels, uphold
ancient customs in the use of waters, but enforce administrative reg-
ulations that look towards economizing it, and other measures in the
public interest.
Decision — July 8, 1847. See, Lex Annnle* </rv Pout* ef Ch>mx*<'<'x, Laws and Decrees. 1X47.
WORKS ON SMALL STREAMS. 99
SECTION II.
SUPERVISION OF CONSTRUCTION OF WORKS.
DECENTRALIZATION OF THE ADMINISTRATION.*
By an imperial decree made in 1852, and interpreted by a number of
decrees of the council of state of later dates, a portion of the authority
theretofore expressly reserved to the ministers and council of state in
matters pertaining to the regulation of water-courses, was delegated
to the local departmental administrations. §
This transfer of power constituted what is known as the decentral-
ization of the administration in the hydraulic service.
By it much more responsibility has been thrown upon the engineers,
seeing that the scope of their duty has been widened, and some other
inquiries being done away with, those which they make must neces-
sarily be more searching, and there being no certain revision of their
opinions by a higher central body, their views must be more firmly
grounded on good judgment.
The law, however, provides a right of appeal from the decrees of
prefects and opinions of the engineers, so that parties being aggrieved
at a result may take their case immediately before the minister of
public works or even the council of state for revision.
POWERS AND DUTIES OF LOCAL ADMINISTRATIONS-!
The prefects of departments have the power (1) to authorize upon
non-navigable and non-raftable streams, the building of all new works
necessary for mills, manufactories, dams, headworks for irrigation,
etc. ; (2) to regulate the existence of such establishments where already
constructed without formal permit and regulation; and (3) to modify
existing rules concerning such establishments already built.
In these cases the prefects act directly, by simple resolution, without
the special intervention of the minister of public works, but upon the
opinions and advice of the chief engineers of the departments, and in
conformity to the general ministerial regulations and circulars of in-
struction. §§
They also have the authority to carry out ancient rules and local
usages in the matter of the division of waters, from streams of this
class, between the various interests employing thein.t
* See, De Passy, preface, and elsewhere.
^Decrees— March 25, 1852: April 15, 1861: August 26, 1867; March 18. 1868. Law— June
21,' 1865.
f See, De Passy, pp. 14, 15, 60-68, 73, and elsewhere.
%% Decree— March 25, 1852.
± Decree— April 15, 1861.
100 FRENCH IRRIGATION LEGISLATION.
But in the absence of ancient rules and local usages to serve as a
basis for prefectorial regulation of the division of waters between
claimants, and especially between antagonistic interests such as man-
ufacturing and irrigation, the prefects have not the authority to act,
but such regulations must emanate from the council of state by
decree.*
Hence, the prefects can authorize the works necessary for an estab-
lishment, but cannot, in apportioning water to it, alter or amend
existing regulations concerning the division of waters, so as to affect
the interest of others, or the public interest, or change "local usage"
in this regard, to the prejudice of third parties, unless there is in
existence some "ancient rule" applicable to the case which authorizes
the setting aside of such " local usage " by the prefect.
X.VITKK OF THE I'dWKK 1IKI.K I!Y I'll KI'KCTS.^
The authority of the prefects in the matter of regulating water-
courses and waters is confined to the authorization of works, and to
the execution and adjustment of details of decrees regulating the dis-
tribution of waters, and the application of ancient rules and local
usages.
The first power is that of authorization, all the others are in the
nature of police powers. Hence, except in the one class of cases
mentioned (the authorization of works on non-navigable water-
courses), all the regulative measures of prefects are based on police
powers, and limited by the ideas of public safety and welfare to be
attained by such measures.
The police power is not to be confoun ded with the power of author-
ization. The right to take measures in the interest of public health,
for instance, has always belonged to the prefect
"The nature of police measures consists solely in securing a respect
for the public interest, in calling on each person for the execution of
his obligations, for the cause of the right and the good of all." — [De
Passy, p. 70.
The original declarations of authority, under which this power is to
be exercised by prefects, is found in laws of 1790 and 1791, and a
resolution of 1799.
The first law charges the administrations with the duty of "seeking
and indicating the means of procuring the free course of the waters
of streams, with a view of preventing the plains from being sub-
merged by the too great elevation of milldams and of other works
* Decree— August 26, 1867.
$ See, particularly. De Passv, p. 15, and elsewhere: Duniont :also. Do Huilbn.
\Decrce— March 18, 1868. "
WORKS ON SMALL .STREAMS.- - > 101
established on the rivers, and of directing, in fine, all the waters of
their territory towards the one object of general utility, in accordance
with the principles of irrigation."
The second law imposes upon the departmental administration the
duty and authority to fix the height to which dams may be built in
streams, so as "to hold the waters at a height which does not injure
any one," or in any way "interfere with the public interest~or~con-
veiiience."
And the third law delegates "to the administrations of departments
the power of taking all the necessary steps to prevent waters being
turned from their natural courses by works of diversion, simple
ditches, or otherwise, without previous authorization; and, also, the
power of seeing that dams, embankments, 'and other works do not
exceed the level which will have been fixed for each." *
The duty of prefects in this connection is sufficiently apparent
from that which has been said respecting their authority and power,
and from what is said under subsequent headings in this chapter.
APPLICATIONS FOR SANCTIONS TO CONSTRUCT WORKS. $
In cases where water is to be taken from a stream without
constructing a dam, by a simple cut in the bank, with a headgate,
permission to construct the work is not necessary from the adminis-
tration, for it can only interfere when the flow of the stream is to be
checked by a dam,t but the owner of the proposed structure must
establish in the courts his right to water, if this be contested, and the
construction afterwards comes under the supervision of the adminis-
tration in carrying out regulations for all diversions and uses on the
stream.
But in the interest of the public the administration may cite parties
proposing or executing such works to appear in court and prove their
right to water, and prove that they will not destroy interests already
grown up.
Whenever a work is to be constructed in or on the bank of a non-
navigable stream, which will or may affect its regime as a drainage
way of the country, or which may directly affect the common rights
or public utility subserved by the stream, sanction of the plans and
project must be had from the departmental authorities.
Application must be made to the mayor of the commune, the sub-
prefect or the prefect, for the permit, and this application must be
* Resolution of the government, 19th Ventose, year 6.
$ See, particularly, De Passy, supplement, and Ch. I ; also, Dumont.
t The latest regulations of the administration conflict with this doctrine. See Article 6 of
the form of regulations at end of this chapter.
102 FRENCH IRRIGATION LEGISLATION.
accompanied with a plan of the proposed work, a statement as to its
purpose, etc.
The mayor publishes this application by posting it as directed by
regulations. He hears and records the substance of all comments or
objections, and he transmits the statement of the case to the sub-
prefect.
This authority after consideration reports the case to the prefect,
who submits the question to the departmental engineer on the special
service.
The engineer examines the matter to see that the works are such
as will not bring harm to the stream, and in conformity to general
regulations. He may prepare other plans to effect the same purpose,
and recommend them in place of those contained in the application.
These results with his opinion are reported to the prefect, who may
order a further investigation of the wrhole matter by the sub-prefect,
or may thereupon act by granting or refusing the application.
To every such permit conditions are attached, binding the grantee
to construct the work according to plans or to modifications thereof to
be approved by the local administration, and binding him to submit
to local regulations in the management of the affairs of the stream,
and to keep his work in repair.
DKTKKMIXIM; THK I.K<;AI. HKK;HT OF MAMS.*
Dams for water-power purposes, and intended to hold the water at
all times materially higher than the bed of the stream, art- put in
solidly from bank to bank, up to .the least height at which it is acces-
sary to hold the water for the purpose required, when the bank-lands
above are sufficiently high, as they sometimes are, to be well above
the flood plane as necessarily raised to higher levels by the effect of
the darn.
But when these lands are not naturally high enough to admit of
so high a flood plane, the top portion of the dam, for such height and
length as may be necessary in each case, is made removable, auto-
matically or otherwise, so as to admit free passage of floods through
the weir thus opened, without their rising above a certain safe eleva-
tion in the reach above the work. These weirs can but seldom be
dispensed with.
In the issuing of permits for the construction of water-power dams
on non-navigable and non-floatable streams it was, until within the
past fifteen or twenty years, the rule to restrict their heights so that
the backset of waters would be confined to the limits of the lands
* See, particularly, De Passy, pp. 19, 23-25, 28, 51, and elsewhere; also, Dumont.
WORKS ON SMALL STREAMS. 103
owned by the proprietors of the work, upon the theory that the bed
of the stream was private property, and nothing could be done to
affect it without liability for damage reclamation.
But the supreme court of France, and the council of state, have
finally determined that "the fall of a stream of this character is not
the property of the land proprietors, but that it enters into the class
of things which, by the terms of article 714, Code Napoleon, IToliot
belong to anybody, of which the use is common to all, and of which
the enjoyment is regulated by the laws of police," and hence the ad-
ministration sanctions works which cause water to be held back in
the channels by properties above, so long as the lands and other works
are not thereby injured.
In cases where it is necessary, in order to get head sufficient for the
intended purpose, and at the same time guard against overflowings
of land above, the administration is authorized to provide for the
necessary levees on each side of the stream above the dam, to be built
at the expense of the owner of the dam; all costs, charges, and dam-
ages being met by him.
The legal height having been determined for a dam, as a matter of
record, and for reference at any time, a stone slab or shaft is firmly
embedded at some convenient point, near at hand, where it can be
conveniently got at, and so that its top surface is at the elevation of
the dam's crest as authorized to be made.
Thus the officers of the administration, or any one else, may at any
time test the fact as to whether or not the dam has been made higher
than authorized.
This reference monument is an official record, and not to be dis-
placed under pain of severe penalties, and the owner of the dam is
responsible for its keeping.
CONSTRUCTION AND MAINTENANCE OF DAMS AND HKADWORKS.*
To provide for proper clearances of the beds of the stream above
the dam, and to provide the means for permitting water in sufficient
quantity to satisfy the rights which riparian proprietors below have
under article 644 of the code, sluice-gates are put in all dams not
built removable, at a point near or at the level of the natural stream
bed.
Should it appear to a prefect in considering application for per-
mission to put a structure for manufacturing purposes on a stream,
that rights of riparian proprietors already utilized would be seriously
injured by it, he has authority on this ground to refuse the pernnt —
* See, De Passy, pp. 24, 25, 51-54, and elsewhere.
104 FRENCH IRRIGATION LEGISLATION.
the waters being already fully utilized and required for use under the
code. The courts may order otherwise, however.
Dams established for irrigation, and made movable, cannot be used
for power head purposes, and be kept closed all the time.
Dams for diversion of waters for irrigation must be removable
down to the plane of the natural bed of the stream, for a length as
great as the natural width of the stream between banks when cleaned
out.
The movable portion must be composed of shutters which fall flat
on to the bottom, of gates which may be raised above the flood plane,
or of stakes ("needles") which can be taken out altogether.
The crest of the movable portion, like that of the fixed portion,
must be adjusted to the plane of the legal height determined for the
dam, and its sill must be established at the level of the bed of the
stream when at its ordinary plane.
Scouring sluice-gates are not required in dams of this character, for
the clearances above are effected by opening a portion of the dam
itself down to the scouring plane.
Closable top weirs are also not required in dams of this kind, for a
portion of the whole dam may be used for flood escap
The dimensions and form of the head-gates of the canal, the eleva-
tion of their sills with respect to that of the top of the dam, the form
and slope of the channels for a certain distance below, are regulated
with the view of receiving the full flow of the water from the stream
at low stage, when the division among claimants on the stream is made
by giving each the full flow in turn at stated intervals, and, at the
same time, to properly gauge a much smaller amount, when the divi-
sion is made by apportioning the supply at once amongst a number,
or all* according to their rights.
SECTION III.
REGULATION AND OPERATION — WORKS AND WATEK>.
NKCKSS1TY KOR REGULATIONS AND ADMINISTRATION. #
In the early years of the development of a new country, the neces-
sity for guarding the common property of all the people is not felt.
Each individual is intent on securing his own advantage, and all
lose sight of those mutual interests which cannot be segregated and
cut off in chunks as can lands and personal properties.
* Instructions, October 23, 1851.
# See, Dumont, De Passy, Dalloz, De Buffon, and Malapert.
REGULATION ON SMALL STREAMS. 105
Water-courses and waters are, by nature, of the kind of property
which no one can own, yet it has always been the idea in the early
stages of the development of a people or a country, that each might
use these common properties as he chose.
It was so in France. In the struggle for control of the navigable
and raftable streams, which for centuries went on between the central
government of the country and the nobles and the provincial gT5yern-
ments, as I have already written, the small streams not raftable
were left to the control and use of the riparian proprietors, the gov-
ernment maintaining a nominal and fitful supervision over them in
the interest of public utility and the protection of navigation interests
below.
Thus, customs became established which in course of time became
crying abuses. So long as interests were few and water plenty in
comparison to demand, and the stream banks were not much occu-
pied, so long there was no pressing need of regulation other than that
established by local custom and agreement.
But' as time wore on, it was found that the courts were overwhelmed
with water-right and other similar litigations. There was a perfect
sea of trouble. The more decisions there were, the less were the peo-
ple satisfied with the results.
It was found that water was used in the most extravagant and use-
less manner, and purposely or carelessly wasted by those who for long
periods had enjoyed its control, while others equally well entitled to
it originally, were forcibly deprived of a participation in its benefits.
The government was appealed to on all hands to make new laws,
and indeed some legislation was brought about by this pressure and
popular clamor.
But after awhile it was found that enunciation of principles, and
formulation of general laws, and multiplying of rulings, without judi-
cious and wise application of them according to local and ever vary-
ing circumstances, did not affect the desired ends.
RECOGNITION OF THE NECESSITY FOR ADMINISTRATION.
In the meanwhile it had become necessary for the government
administration, in the interest of the public welfare, to interfere in
these local quarrelings; and the salutary effect of these interferences
became known and appreciated, seeing that regulation did away with
litigation, and that the best was thus accomplished for all, with the
advantages at command.
This led to the administration being called on in other cases, to
establish regular rules and regulations on other streams; and so it has
106 FRENCH IRRIGATION LEGISLATION.
come about that on nearly all streams of any importance as s
of water supply for any purpose, or where their banks are built on,
or where they run through municipalities, or are embanked to pre-
vent floods, there are special regulations applicable to the cases which
arise on them each.
It cannot be said that this system has been always acceptable to the
people, or that it has not in places awakened violent opposition; for
there has been opposition to administrative authority and control,
and appeal taken to the courts. But the outcome is one of satisfac-
tion with the principle on which rests the system, although, no doubt,
the means of its application may not always be acceptable, and the
results not always for the best.
Writers on these subjects of irrigation and drainage and the like,
in France, with one accord unite in setting forth the necessity for
a supervision of the affairs of water-courses.
Speaking of the diversion of water from, and construction of works
in non-navigable streams, M.M. Dumont, being themselves advocates
of the rights of riparian proprietors to control such streams, say:
"An unlimited freedom in this regard would be most dangerous.
The privilege would be abused by some to the detriment of that of
others, and of the public welfare. AVe must admit that if there were
no regulations, every one could do as he chose, or use such quantities
of water from the river as he willed, because of this privilege. ;liid it
would engender a veritable anarchy, and even lead to annihilation of
law itself. There have been quarrels between irrigators and irrigators.
and between these and factories, and these rival interests, not regu-
lated, have been completely paralyzed, and all their advantages from
a fair distribution of the water have been, in these cases, sacrificed.
" Therefore the exercise of the right of diversion from small running
streams is and must be subordinated to certain conditions of general
interest. In such matters the law cannot foresee all contingencies
or regulate all cases, for what is good for one river is not good for
another, and what is good for one >cason is not good for another.
" Hence all latitude and power is giv>en to the administration in
the exercise of its duty of improving and regulating the affairs of
water-courses, to direct and manage them with the view to general
utility, taking cognizance of the principles of irrigation."
"The courts themselves are required to conciliate the interests of
agriculture with respect due to property, whenever litigation occurs
between proprietors on these streams, to whom waters may be use-
ful, arid it has been expressly laid down for them that in every case
they shall observe all particular and local regulations on the course
and usage of water."
:' The administrative regulating power, which is called upon to
exercise so great an influence on the prosperity of agriculture, should
rule over all water-courses, however small they are, even the waters
of a brook fed by an intermittent spring."
De Buffon has written much in this same strain, and I have here-
REGULATION ON SMALL STREAMS. 107
tofore quoted from him, under a former heading, some strong
sayings on the necessity for guards in carrying out regulations on the
rivers. In another place, speaking of the bad condition into which
channels have fallen for want of regulating their use, and the use of
their banks, he says : " In the absence of rules of maintenance
such a state of affairs is allowed to grow worse and worse during a
number of years, and it will become intolerable, for a great extent-of
the riparian property will little by little lose its value, and other
interests will be lost, because of conflicting and indeterminate claims."
" This is why a great number of localities are now suffering con-
tinually increasing injuries caused by the bad regime of these water-
courses, and for that reason, in nearly every locality so affected,
complaints are heard and demands made for the adopting of proper
regulations and police measures to make an end of such a vexatious
state of things. The superior administrative authority is continu-
ally solicited to favor the 'promotion of syndicates to act in concert
with local administrations to insure the common good from the
water-courses."
ADMINISTRATIVE AUTHORITY TO MAKE REGULATIONS.*
The authority of the central administration to make general and
particular regulations governing the affairs of non-navigable streams
is a power born of the natural necessity for regulation in the use of
a property common to all the people, and of the recognized duty of
government to foster the common interest, promote the general wel-
fare, and protect the public rivers below, by establishing order in and
imposing conditions on the diversion of waters from the tributaries
above.
Hence, the origin of the authority of the central administration is
not found in any laws or other enactments, but its duties are inferred
from the laws and decrees relating to the subject and governing the
action of the departmental administrative officers, and which have
been already quoted. §
The duties with which we have most concern are those of "seeking
and indicating the best way of utilizing the waters of all streams in
irrigation," and others, which are of a police nature, in repression or
prevention of individual license exercised to the detriment of com-
mon and public welfare.
The article 645 of the Code Napoleon modifies the power of the
administration to interfere as between private rights to water on non-
navigable streams, by relegating such questions to the courts. But
these questions as to right being settled thus, or by long established
usage, it remains for the administration to order matters from day to
* See, De Passy, Dumont, and Dalloz.
• % See, " Powers and Duties of Local Administrations.'
108 FRENCH IRRIGATION LEGISLATION.
day and year to year, in accordance with the basis thus established,
and with the view of the public utility of the streams.
In cases where, under long established use, rights to definite quan-
tities of water have become settled, the administration cannot do
otherwise than recognize these rights, and establish regulations for
the apportioning of the supply, in conformity with such claims.
Should all the rights be not already established by long use, the
administration can only propose an apportionment, and, if this is not
acceded to by the parties at interest, the case must be adjudicated
before the proper courts, and then the administration establishes its
regulations on the basis of the court's decree.
The administration has taken the authority to determine, however,
the total volume of water which may be diverted for irrigation, as
against the demands of navigation and manufacturing on the river
below, and of deciding the dimensions of the headgates, etc., to take
this water, and the periods of time during which it may be taken, and
the court of appeals has sustained the acts of the administration in
this respect, as being equitable and not in excess of authority.
When rights have been settled by long established usage, or by the
courts, the prefects have the authority to establish regulations, in
conformity with the schedule of rights thus fixed, denning ilie time,
manner, etc., of use for each claimant, whether urigator, manufacturer,
or commune, and according to existing circumstances. *
But, if no settled rights exist, regulations always emanate from the
council of state in general assembly, for to the sovereign authority
belongs the right to settle matters so nearly affecting the general
interest.
"From these principles as to authority, it follows that in the ab-
sence of long established and recognized custom and local usage, and
in cases where it becomes necessary in the general interest to modify
such practice, there is no other provision for a division of water in
this class of water-courses among the several users, but a decree ema-
nating from the council of state in general assembly." — [De Passy.
PRINCIl'I.KS ADHKKKI) TO IX MAKING K K(M' NATION'S. $
In cases where a division of water is to be made between agricult-
ure and industrial pursuits, the points to be fixed are of two kinds —
those special to each particular case and those common to the whole
set of cases. The special points are the following:
First — During what periods is it necessary to have water for irri-
gation. First, for the spring waterings, and, second, for the watering
* Decree of April 13. 1861.
$ See, De Passy, Dalloz. and Dumont.
REGULATION ON SMALL STREAMS. 109
of summer crops; and on what days, and at what hours during each
of these periods, will it be necessary to have the water.
Second — In what divisions of the stream do groups of distinct and
separate interests lie; what is the extent of interest in each division;
what proportion of the whole available water supply reckoned in
days and hours will be required in each division; at what times
will each division demand its proportion; and what is the constant
demand in each division for water for domestic purposes.
The general points are as follows: The waters set aside for manu-
facturing power purposes, are after use or when not used, accorded to
irrigation without regulation, unless the considerable number of
interests on the stream below makes a schedule necessary to preserve
order in division.
The gauging, rating, guarding, and operation of the headgates of
canals and sluices, and of the weirs and open ways of dams, is the
subject of a general regulation.
The making of a general schedule for division of waters, and of a
special card therefrom for guidance in the use of waters at each man-
ufactory arid by each irrigation canal, is the subject of a general reg-
ulation for the stream.
The reservation of waters for purposes other than those specified
in the schedule, in the interest of the public generally and parties
using water from the stream for other purposes than irrigation and
power, is the subject of a general regulation for the stream.
The distribution in irrigation by the irrigators themselves, of the
waters allotted to them in each case, and provision for citing them
before the courts to have their matters of dispute settled, under arti-
cle 645 of the civil code, so that water be not wasted while they are
quarreling, is the subject of a general regulation for the stream.
A type of public administrative rulings for a division of water
between agriculture and industrial pursuits, is the decree dated July
2, 1872, relative to the river Fure in the Department of Is£re, herein-
after given, under the head of "Regulations of Irrigation."
GENERAL RULES AS TO DIVISION OF "WATERS.*
In the issue of permits to construct dams for irrigation in water-
courses of this class, a special obligation is imposed on the owner of
the work, that the water passage shall always remain open, and thus
a free flow of the stream on its natural bed be assured, except when
the water is being diverted into the canal as provided for in the sched-
ule of division.
*See. De Passy; also, Duinont, and Dalloz.
110
FRENCH IRRIGATION LEGISLATION.
This provision is necessary to guard against floodings above the
dams, and to insure a fair distribution of the waters according to the
schedules, and to allow the stream to keep itself clear from deposits
caused by the dams when closed; and the necessity for it has been
made glaringly apparent by a long and disastrous experience with
dams not provided with open ways.
In cases where the water volume in the stream to be divided is
sufficiently large to admit of all claimants receiving sufficiently large
irrigating or power heads at once, the schedule is made on this
basis; but if the supply is not sufficient for this purpose, the system
of "turns" by the day, week, or hour is adopted, and the schedule
so arranged as to accommodate as many as possible with the supply
under this arrangement.
The system of turns is preferred by the administration as well as
the i'rrigators on one account, and that is, because the supervision
has then only to be directed to fixing the time for opening and clos-
ing the headgates and dams and not also to the regulation of the
amount they shall be opened.
But this system has the disadvantage often of not allowing the
waterings to be made when the crops most need it.
The administration, in making schedules for divisions of water, is
governed by ancient local custom, probable water supply, and as far
as possible by the necessities of each individual water-right holder;
so that in reality it only acts as a disinterested third party apportion-
ing a common benefit, as far as possible to suit desires of the parties
most at interest, and reserving and caring for the rights of other
parties at interest, much scattered and not otherwise represented.
In authorizing the construction of a new work by a party having
a riparian right to water, the prefect, representing the administra-
tion, if there are well established general rules or customs governing
water division on the stream, inserts a clause to the effect that the
new work is to be used in conformity to such rules as carried out by
the administration or the consumers amicably amongst themselves.
In the absence of ancient rules or customs the prefectorial order is
limited to authorizing the construction of the work, leaving for the
future the determination in the general interest, of conditions under
which the new work is to be used, if it should become necessary so
to do, or, if this becomes necessary also, awaiting the action of the
courts in determining the relative rights of the parties at interest.
Thus, questions relating to the actual right to water, the relative
extent of each claim to water, the right to partly or wholly support
a dam on another's land, the right of way to conduct water over
REGULATION ON SMALL STREAMS. Ill
another's land, the point at which drainage waters shall be returned
to the streams whence the head is derived, and, in a word, all ques-
tions relating to each individual claim are, if necessary, first to be
adjudicated by the courts, and the administration bases its regula-
tions on these decrees.
REGULATIONS OF IRRIGATION — DIVISION OK WATERS BETWEEN' CLAIMANTS.*
As a practical example of an administrative measure regulating
the division of waters between agriculture and manufacturing and
other industries, the following decree of the president of the repub-
lic, dated July 2, 1872, is given in full.
It will be understood, of course, that the waters, except when being
used, as specified, in irrigation, are to remain in the channel for power
generation at the dams devoted to other purposes than irrigation.
"The president of the French republic, in view of the decree of the
5th May, 1865, declaring to be of public utility the works for the
management of the lake of Paladru, intended to supply, for all
time, to the river of the Fure, the volume of water sufficient for
the necessities of irrigation of the river meadows, and the working
of numerous manufactories which exist on this river.
In view of the reports of the engineers of the department of the
Isere, relative to the measures to be taken to do away with the abuses
proceeding from the absence of schedules regulating the use of water.
In view of the documents of the twTo inquiries opened by pre-
fectorial judgments of 4th November, 1867, and 18th May, 1871.
In view of the opinion of the commission of the syndicate of the
Fure, in date of 10th October, 1870.
In view of the uniformity of plan of the valley of the Fure, and
the proposition of the proprietors of the irrigated meadows.
In view of the reports of the engineers in date of 16th February
and 31st May, 1870, 19th November, 1871, and 29th February, 1872.
In view of the opinion of the prefect in date of 13th March, 1872.
In view of the opinion of the general council of bridges and roads
in date of 27th March, 1872.
In view of the laws of 12-20 August, 1790, 6th October, 1791, and
the judgment of the government of 19th Ventose, year 6, the decree
of decentralization of 13th April, 1861.
And the temporary commission, charged with replacing the coun-
cil of state, being heard, renders judgment as follows:
Article 1. From 1st March to the 1st September, each year, the
meadows which have the right to the waters of th6 Fure, on the
territory of the seven communities of Charavines, Apprieu, Saint
Blaise de Buis, Beaumont, Rives, Renage, and Trillins, will be irri-
gated once a week.
First — The meadows included between the source of the river and
the dam of headworks of the furnaces of Riviere, a point situated
at 2028.50 metres down stream from the bridge of the departmental
road No. 7, from Sunday at one o'clock in the morning till Sunday
at half -past seven in the evening.
'See, De Passy, appendix
112 FRENCH IRRIGATION LEGISLATION.
Second — The meadows included between the dam or headworks of
the furnace of Riviere and the mouth of the stream of Reaumont, in
the Fure, from Saturday at nine o'clock in the evening till Sunday at
half-past seven in the evening, to wit: from Saturday at nine o'clock
in the evening till Sunday at one o'clock in the morning, with the
total discharge of the stream, and during the remainder of the time,
with the product of the waters of nitration, proceeding from irriga-
tions up stream, and that of the tributaries which fall in this part of
the bed of the Fure.
Third — The meadows included from the mouth of the stream of
Reaumont, and the end of the course of the Fure, from Saturday at
six in the evening, till Sunday at half -past seven in the evening, to
wit: from Saturday at six in the evening, till Saturday at nine in
the evening, with the total discharge of the water-course, and during
the remainder of the time, with the product of the waters of filtra-
tion, proceeding from the irrigations up stream, and that of the
stream of Reaumont, as well as the tributaries which fall in this
part of the bed of the Fure.
Article 2. The proprietors of the meadows will have, neverthe-
less, the power of practicing supplementary irrigations, when then-
are superfluous waters, that is to say, when the manufactories are
working regularly, and the river affords -an excess of discharge, it
may be passing across the sluices of discharge, raised for this pur-
pose by the manufacturers, or it may be by accidental overflowing
above the weir.
The irrigators can open their headgates, but on condition of clu-
ing them, as soon as the water of the river will have descended to
the legal level of the dams, the sluices of discharge being closed.
Article 3. Outside of the fixed hours for irrigation, by article 1,
and except the case of use of superfluous waters, under the con-
ditions provided by article 2, the sluices of the irrigation da ins
existing, it may be on the Fure, it may be on the mill pom Is taken
from this river, will have to be completely raised above the level of
flood waters, and the sluices of the headworks will remain tightly
closed.
The proprietors, having, in virtue of titles legally recognized, a
right to a continuous small stream of water, it may be for their
domestic uses, it may be for feeding their retting pits, will be able at
all times to preserve in their respective hcadgate-s the openings neces-
sary to receive the continuous volume of which they nave the right
of enjoyment.
Article 4. In the regulating schedules for the works intended to
assure the irrigation of the meadows, and the regime of the manu-
factories, the prefect will fix the conditions, which he will judge
necessary with -the purpose of maintaining the division of the waters
made by the present decree.
Article 5. The rights of outside parties are and continue ex-
pressly reserved.
Article 6. The irrigators will arrange between themselves for
dividing the waters placed at their disposition, and will carry all
disputes which may arise from said division of waters, before the
competent authority.
Article 7. The minister of public works is charged with the exe-
cution of the present decree.
REGULATION ON SMALL STREAMS. 113
REGULATIONS OF STRKAMS — POLICE AND CLEANSING OF WATER-COURSES."*"
As a practical example of the regulations of police of non-navi-
gable water-courses, the following formula promulgated in 1878, as a
circular, to the local administrative officers, by the minister of pub-
lic works, is presented.
It is explained that this is intended as an outline to be followed_by
the prefects in getting up general regulations for the streams in their
departments.
Obligations of the Riparian Owners. — Riparian owners are to lop off
and remove all trees, bushes, and stumps which might form an ob-
struction on the banks of the water-course, and all the branches,
which, touching the water, might impede the flow.
Silt Accumulations. — Riparian owners are obliged to receive on their
lands the materials coming from the cleansings of the channel, and
to remove the deposits which would injure the free flow of the waters,
Passage of Riparian Properties. — The riparian owners are obliged
to give free passage over their lands, from the rising to the setting of
the sun, to the officers and their agents in the discharge of their
duties, as well as to the foremen and workmen charged with cleans-
ings of the streams.
These persons cannot, however, use the right of passage over closed
lands, except after having previously notified the owners.
In case of refusal they will require the assistance of the mayor of
the community. They will be responsible, besides, for all damage
or injury committed by them or their workmen.
Construction. — Every proprietor who wishes to make a structure, or
a change in any structure, upon the water-course, or adjoining it,
must submit to the prefect the plan of the work he proposes to adopt.
In the two months which follow the deposit of this communica-
tion, the prefect, after haying taken the advice of the engineers, will
niake known to the petitioner if the projected works would appear to
injure the free passage of the waters, and if, in consequence, the
administration is opposed to their execution.
After this delay, if he has not received any response, the peti-
tioner can go ahead, without, however, prejudicing the rights of third
parties, and those of the administration.
No dam, plantation, permanent or temporary work, of a nature to
modify the regime of the waters, may be established or repaired on
a water-course without the authorization of the prefect.
It is forbidden to make ditches in the banks, or practice any other
means of derivation, without having first obtained the permission of
the prefect.
Obligation* of Manufacturers and Users of Dams. — The weirs and
sluices of disci mrge will always be maintained open, and it is expressly
forbidden to place anything on them for the purpose of raising them.
In default of an official ruling which fixes the legal height of the
dam, the waters are not to pass over the upper part of the weir, or
from tli e sluice of discharge with a head of pressure if there is no weir.
Manufacturers and users of the dams will be responsible for the
super-elevation of the waters, as well as when the discharge sluices
are not wised to their full height.
*See, Lex Aanales des Ponts et Chaussecs, Vol. CXXXIX, p. 1112.
021
114 FRENCH IRRIGATION LEGISLATION.
The manufacturers and users of the dams will be obliged to open
their sluices for the execution of the works of cleansing, during the
hours and days which will be fixed by the prefectorial decrees made
upon the advice of the engineers.
Deposits and Injurious Waters. — It is forbidden to make any de-
posits in the bed of a stream or to allow infectious or injurious waters
to drain into it.
The interdiction made by article 17 of the decree above vised.
10th August, 1875, of fishing in the parts of streams of which the
level would have been temporarily lowered, it may be by conducting
the cleansings or any kind of works, it may be on account of the
stoppage of the manufactories, is reaffirmed.
Hirer Guards. — There will be river guards organized and specially
charged with putting in operation the present rules, provided thai
all the interested parties or any certain number of them, have made
an engagement among themselves to assure the payment of these
agents, under the subventions which would be furnished by the state,
the department, or the communities.
These agents will be commissioned by the sub-prefect, and will be
sworn before the tribunal of the district.
Infringements of the rulings of the present law will be proven by
means of statements drawn up by a river-guard, or by any other
agent of authority who has qualified for this purpose.
These statements will be affirmed within three days of their date.
before the mayor or justice of the peace, either at the residence of
the agent, or in the place of the offense.
They will be vised for stamps and registered fee, in the space of four
days after the affirmation, and referred to the competent jurisdiction.
A copy of each statement will be remitted by the agent who will
have drawn it up, to the mayor of the commune, who will certify
to it and send it to the inf ringer, with the summons, if necessary, to
cease immediately from damage.
The present regulation will be published and posted throughout
the extent of the department.
Copies of it will be addressed to the engineer-in-chief, to the sub-
prefects and the mayors charged, each one in that which concerns
his business of overseeing and assuring the execution of the pre-
scribed rulings.
AUTHORITIES FOR CHAPTER IV.
In the preparation of this chapter, I have consulted and compared the following-named
authorities:
Dumont. — [Work cited as an authority for Chapter II (French)]. See Book II, Chapters II, III,
and IV.
De Passy.— [Work cited as an authority for Chapter II (French)]. See Chapter I, pp. 14-130,
and supplement, pp. 297-334.
Malapert. — [Work cited as an authority for Chapter II (French)]. See headings. "Actual Repub-
lic," " Engineers," "Water-Courses."
De Bufon.— [Work cited as an authority for Chapter II (French)]. See Vol. 2. Part II, Sec. I,
pp. 1-106.
Dalloz.—[Work cited as an authority for Chapter II (French)J. See Vol. X I X . " Waters," Chap-
ters IV, IX, and X; also, Vol. XL, title "Servitudes."
Les Annales des Ponts et Chatissecs. — [Work cited as an authority for Chapter II (French)] . See,
particularly, Vol. CXXXIX, p. 1112 et seq., and also the late volumes of "Laws and
Decrees."
Civil Code. — [Works cited as authority for Chapter II.]
(4).
CHAPTER V.— FRANCE
RIGHT OF PROPERTY IN SPRINGS, AND RIGHTS TO THE USE OF SPRING
WATERS.
SECTION I. — Ownership and Control of Springs.
Absolute Ownership.
The Opposing Doctrine.
The Settled Principle.
SECTION' II. — Acquired Rights to Spring Waters.
Public Use of Springs; Populations.
Private Use — By Title; Prescription.
Servitude Eesulting from Dividing Estates.
SECTION III. — Rights of Drainage and other Rights.
Natural Right of Drainage — Civil Code.
The Right to Dig or Bore for Water.
SECTION I.
OWNERSHIP AND CONTROL OF SPRINGS.
ABSOLUTE OWNERSHIP.*
The matter of the ownership and control of springs has been one
full of contention in France. But it is now well settled by the pro-
visions of the code, and the decisions under it. Article 641 of the
civil code says: "He who possesses a spring within his field may
make use of it at his pleasure."
It follows from this that, " a spring is the exclusive property of
him on whose land it rises, and is used in an absolute manner like
the land itself. The owner may lead its waters over his land, change
their course, collect them in ponds and reservoirs, cause them to be
absorbed by the ground, or even suppress the spring itself, and his
neighbors will protest in vain against being deprived of them." —
[Dumont, § 127.
The code, however, defines certain circumstances under which
this, control of springs is limited and qualified ; the causes being —
the necessities of communities for water for domestic purposes, the
necessities of the State for water for purposes of navigation, the
* See, Civil Code, Articles 641, 642, 643; Dumont, ## 127-129; De Passy, p. 21, and elsewhere;
Dalloz, Vol. XXXVIII, p. 217, and Vol. XIX, p. 398;' also, Proudhon.
116
FRENCH IRRIGATION LEGISLATION.
rights which persons other than the owners of springs may have
acquired to the use of their waters by purchase or by prescription.
The injunction laid upon the courts by article 645 of the civil
code, which commands that " if a dispute arise between the proprie-
tors to whom such waters may be useful," they, the courts, " in pro-
nouncing judgment, must reconcile the interests of agriculture with
the respect due to property," applies only to waters mentioned in
article 644, namely, those of non-navigable and non-raf table streams,
on the use of whose waters, in favor of riparian lands, a servitude is
laid, and does not apply to the waters of springs.
Hence, the courts have not the power to partition the waters of
springs between the proprietors to whom they may be useful, as in
the case of waters of small streams, and the administrative depart-
ment has never attempted it as a regulation.
TMK OIM-OSIM; DOCTRINE.1
This doctrine has been strongly opposed in France, however, and
there are writers, and some decisions, which hold that the principle
of compromise and judicial control, embodied in article 641, was
meant for application in the case of springs, as well as in the case of
small water-courses, and that hence the courts can, in the interests of
agriculture in general, and for the benefit of local agriculturists in
particular, prevent the unnecessary wasteful or selfish use of spring
waters, as well as those of a stream by an owner on its banks, and
compel a division of the water with owners of adjacent lands, if
there is really more water than is necessary for the lands containing
the source, and for the legitimate necessities of the proprietor.
THK SKTTLKI) I'H INC1 1M.K.
The ownership and control of springs is so complete and absolute
that, so long as the waters remain within the property where they
rise, even though used for manufacturing, power purposes, or other-
wise, the administration, which has such extended authority in the
regulation of the use of waters under other circumstances, can do noth-
ing to interfere with the proprietor's use of the spring waters, "even
though they be in sufficient volume to form a veritable water-course."
[De Passy, p. 21.
"With regard to springs which rise on the lands of an estate :
they belong to the proprietor of the lands themselves. The
proprietor, then, disposes entirely of the spring, saving the rights
which may have been acquired against him, and saving the sacrifices
*See, Dumont. j? 12S.
# See, De Passy, p. 21, and elsewhere.
OWNERSHIP AND CONTROL OF SPRINGS. 117
which the public interest may exact to the detriment of his right."
[Dalloz, Vol. 38, p. 217.
But if spring waters be led across or into property other than that
containing the source, no matter though the using be for the benefit
of the owner of the source, or for whatever purpose, such stream is
subject to regulation, as in the case of others.
SECTION II.
ACQUIRED RIGHTS TO SPRING WATERS.
PUBLIC USE OF SPRINGS — POPULATIONS.*"
Private interests must always be subordinate to public interests,
however, and on this account the owner of a spring cannot change
the course of its waters when they furnish the necessary supply to
the inhabitants of a commune, village, or hamlet. "The legislature
has always held in view the personal necessities of people rather than
the requirements of agriculture, as necessary to the moral well-being
of the nation."— [Dumont, § 130.
This servitude is sometimes burdensome upon the proprietor of an
estate who may desire to divert the waters of his spring to some pur-
pose useful to himself, and, hence, he has the right to claim payment
from the community, unless the inhabitants have, by use for a due
length of time, a prescriptive right to* the water. " The amount of
the indemnity is determined by the courts, who take into considera-
tion the degree of injury proved by the proprietor, rather than the
advantages reaped by the commune,- village, or hamlet." — [Dumont,
§ 130.
Government can also take possession of springs to feed canals for
navigation, but on condition that it pay a just indemnity, as adjudged
by the courts, and in conformity to the law for the condemnation of
private property to public use. §
"It has been decided that a spring existing in the land of an indi-
vidual is presumed to be the property of a community of people when
this community has had the continual use of it from time immemo-
rial, for domestic and community purposes." — [Dalloz, Vol. 19, p. 217.
PRIVATE USE — BY TITLE.' PRESCRIPTION.f
The absolute right of ownership in a spring is also modified by
*See, Dumont, %% 130, 131; Dalloz, Vol. XXXVIII, p. 217; Proudhon, p. 4.
# Law of May 3/1841.
t Dumont, gf 132, 133, 134, 1394 : Dalloz. Vol. XL, title " Servitude"; Civil Code, arts. 688.
689, 690, 691. "
118 FRENCH IRRIGATION LEGISLATION.
purchased titles, by prescription, and by the servitude set up by the
division of an estate containing a spring.
A purchased right to the use of the waters of a spring is evidenced
by a deed or record from the owner or former owner of the spring.
In cases of uncertain meaning to such documents, the Courts adhere
to the presumption that the owner of the spring did not mean to
restrict his own use of the waters in the fullest extent necessary for
his purposes, but only to give the grantee the right to control the
waters at any time found running in the channel below.
"The right most commonly ceded to a third party, upon a spring,
is that of drawing water, or that of leading water away from it. The
servitude thus accorded is regulated by the principles of conventional
servitudes.
" The concession of a right of leading cutwater does not prevent
the proprietor from himself using the water of the spring for tin-
wants of his property, but he cannot change the cultivation of his
Eroperty in such a way as to absorb a greater quantity of water than
e was using at the moment of the concession.
" He who has ceded upon his spring a right of leading out water,
can cede another to another person, without the consent of the first
cessionary, provided always that the waters thus divided amongst
several cessionaries can still suffice for the wants of .each; otherwise,
the consent of the first cessionary will be needed.
"The owner of a property to which the servitude of leading out
water is due, cannot, without the consent of him who owns tin- prop-
erty which owes it, concede it to a third party, nor even use the water
for another property, or for another part of the property.
"One can acquire a servitude of leading out water on a higher
property, from which it is separated by an immediate property or by
a public road. In the latter case an authorization is necessary.
There is a servitude of aqueduct on the intermediate property, and a
servitude of leading out water on the higher property. The proprie-
tor of the intermediate property cannot serve himself with the water
which passes through his land, without the consent of his two neigh-
bors who have treated for the 'servitude of the water-right." — [Dalloz,
Vol. 40, word "Servitude."
A prescriptive right to the use of the waters of a spring is "acquired
by an uninterrupted enjoyment of them during the space of thirty
years; to be computed from the moment at which the proprietor of the
lower field has made and completed the works apparently designed
to facilitate the fall and course of the water within his property." *
The courts hold that the essential points to be established in prov-
ing this servitude are:
(1) That the works have been established in a permanent man-
ner, (2) and maintained for thirty years, (3) in a manner to constitute
an adverse possession of the water to that of the owner of the spring,
and, hence, in consequence of the last condition, that these works be
* Civil Code, Art. 642; see, also, Articles 688, 689, 690, 691.
ACQUIRED RIGHTS TO SPRING WATERS. 119
attached to the tract wherein the water rises. " This last condition is
not written in the law, but it is the meaning of it, and this point,
which has been the subject of lively debate, is at present sanctioned
by jurisprudence." — [Dumont, § 134.
" The second exception to absolute ownership in a spring, on the
part of him who has it on his property, consists in the prescription
which can be acquired of the right to use the water of this spring.
" Prescription in this case can only be acquired by uninterrupted
enjoyment, during thirty years, counting from the moment in which
the proprietor of the lower land has made and terminated visible
works destined to facilitate the fall and flow of the water on his
property.
" We will remark at first that the prescription does not apply to
a simple right of drawing water; for that is a discontinuous servi-
tude, and servitudes of that description are not acquired by pre-
scription. It would be different with a servitude of this class which
would have been acquired by possession before the publication of the
civil code.
" The general principles of prescription receive here their applica-
tion.
"Moreover article 642 establishes special rules of which the accom-
plishment is necessary in order that the servitude may be acquired
by prescription.
" It is necessary in the first place that there may be works. In
vain the higher proprietor would have allowed the lower property
to enjoy peaceably and publicly the use of the waters; this would
only be a simple tolerance which could not constitute a right." — [Dal-
loz, Vol. 40, word "Servitude."
THE SERVITUDE RESULTING FROM DIVIDING ESTATES.®"
There are cases wrherein lower and other proprietors hold the right
to use the waters of a spring otherwise than by purchase or prescrip-
tive use for thirty years.
Thus when an estate containing a spring has been subdivided
amongst heirs, after having been held by one proprietor, and the
waters used to the benefit of the lower lands, so as to result in a servi-
tude, by the owner of all, the owners in common and co-heritors of
the upper and lower part of the estate share the use of the waters
after the division of the lands.
This servitude results from article 692, civil code, which is as fol-
lows: "The declaration of the father of a family is equivalent to a
deed as regards continual and 'apparent servitudes."
The rights of ownership and use of a spring may be restricted, but
not annihilated by the servitude above named, and it rests with the
courts to conciliate the several interests in such cases.
The rights above described, acquired by prescription and the " servi-
See, Dumont, gg 134, 136, 137; Civil Code, Arts. 688, 689, 692.
120 FRENCH IRRIGATION LEGISLATION.
tude of the father of a family," do not constitute property rights,
either in the spring or its waters, but simple rights to the use of some
portion of the water, according to the facts in each case.
Thus, the possessor of the lands in favor of which such rights have
accrued, can not take water at such times, and in such manner, and
in such quantity as seems best to him. "Conciliating the right to
use with the rights of the owner of the spring, the courts can decide
that in the future he does not use the water, but according to a meas-
ure which, in default of an amicable agreement, will be regulated by
the courts, by experts." This duty of exporting usually falls to the
engineers of the administration in charge of streams.
SECTION III.
DRAINAGE AND OTHER UK. I ITS.
NATURAL RIGHT OF DKA IN AG K.*
Article 640 of the civil code reads as follows: " Inferior lands are
subjected as regards those which lie higher, to receive the waters
which flow naturally therefrom, to which the hand of man has not
contributed.
" The proprietor of the lower ground cannot raise a bank which will
prevent such flowing.
" The superior proprietor of the higher lands cannot do anything
to increase the servitude of the lower."
Under this article, drainage waters from springs must be permitted
to flow as they would naturally flow on to lower lands.
If the ordinary clearing or cultivation of a field, or excavation for
ordinary purposes other than those of developing a flow of ground
water, causes an increase in the flow of a spring, or the breaking out
of a new one, these waters must be allowed to drain away as though
naturally started.
The owner of a lower estate cannot, however, without due indem-
nity, be made to suffer the passage over his lands of waters caused to
flow by excavations made for the purpose of getting a flow of water,
or where it is well known a harmful flow will result, or by artesian
borings.
THE RIGHT TO DIG OR BORK FOR \VATKK. '',
Article 552, civil code, reads as follows:
"Property in the soil imports property above and beneath.
*See, Dumont, $ 129; also, Dalloz, title "Servitude."
$ See, Dumont, ^ 138, 189: and Dalloz, Vols. XIX and XL. words cited.
NATURAL DRAINAGE AND OTHER RIGHTS. 121
"The proprietor may make above/' etc. * * * *
"He may make beneath, all structures and excavations which he
shall judge convenient, and draw from such excavations all the pro-
ducts which they are capable of furnishing, saving the restrictions
resulting from the laws and statutes relating to mines, and from the
laws and regulations of police."
In consequence of this article, ownership of land carries with it
all above and under the soil.
The application of this principle authorizes the land owner to make
on his land any works or excavations he deems expedient for his
purposes, even though they result in the cutting of subterranean
veins of water that feed a spring rising upon the lands of a lower
proprietor.
"The court of appeals has even extended this privilege to cases
where such excavations would damage mineral water establishments
belonging to the State, and it refused the administrative authority of
the mayor of Vichy the power to render decrees to forbid such exca-
vations." * * *
"The council of state has also sanctioned the same principle in a
similar case." — [Dumont, §138.
This natural privilege may be forfeited by agreement amongst pro-
prietors, so that one estate be bound not to excavate to the detriment
of waters or springs naturally rising on another.
AUTHORITIES FOR CHAPTER V.
In the preparation of this chapter I have consulted and compared the following named
authorities :
Dumont. — [Work cited as an authority for Chapter II (French).] See, Book II, Chap. IV, pp.
209-225.
De Passy. — [Work cited as an authority for Chapter II (French).] See, pp. 21, 22, and elsewhere.
Dalloz.— [Works cited as authority for Chapter II (French).] See, Vol. XIX, title " Waters," p.
276, and elsewhere, and Vol. XXXVIII, title " Property," p. 217, and elsewhere, and
Vol. XL, title " Servitudes."
Proudhon. — [Work cited as an authority for Chapter II (French).] See, p. 4, and elsewhere.
Civil Code. — [Works cited as authority for Chapter II.] See, particularly, Arts. 552, 640, 641,
642, 643, 688, 689, 690, 691, 692.
CHAPTER VI.— FRANCE11';
THK RIGHT OF WAY TO CONDUCT WATER AND THE RIGHT TO ABUT A DAM.
SECTION I. — Rights for Works of Public Importance.
Condemnation for Works of Public Utility.
Way for Main and Secondary Works.
The Laws of 1836 and 1841.
SKCTTOX II. — Rights for Private Water
Servitude of Right of Way; Law of 1845.
Servitude of Right for a Dam: Law of 1847.
Application of these Laws.
SECTION I.
RIGHTS FOR WORKS OF PUBLIC IMPORTANCE.
CONDEMNATION FOR WORKS OK PUBMC UTILITY.*
The right to land, or to occupy land upon which to locate a canal
or other water conduit, with its accessory works and structures, is,
according to circumstances, obtained in France either by acquiring
title to the strip of land itself, or as a servitude or right of occupa-
tion and use for the specified purpose.
In acquiring title to lands for the location of works, the mode of
amicable private purchase is always open, and is the only means
of attaining this desired end until the project shall have boon de-
clared and recognized by law or decree as being of public utility or
importance, when the properties may be condemned as for public
use.
This process of condemnation is carried on under laws of 1836,
regarding local roads, and of 1841, regarding expropriation for causes
of public utility.
Expropriation, or condemnation of private properties for works of
public utility, is accomplished through the action of the courts, which,
however, can only order the condemnation after the declaration of pub-
lic utility has been made, for each case, (1) in the special law or ordi-
nance which authorizes the execution of the works for which the
*See, particularly, Les Annalcs des Ponte et Chaussees, Vol. XX, pp. 203-217, and Vol. XII,
p. 328 et seq.; also, Dumont.
WAY FOR WORKS OF PUBLIC UTILITY.
123
expropriation is required, (2) in the decree of the prefect which
designates the localities of the tracts on which the works are to be
placed (when this designation is not contained in the law or ordi-
nance), and, (3) in the final decree in which the prefect designates the
particular pieces of property, according to ownership, metes and
bounds, which it is necessary to condemn; and such condemnation
can only be made after due hearing of interested parties, and in~con-
formity to process of law.
Great public works, such as national roads, railroads, basins and
docks, canals, and the canalization of rivers, whether enterprises of
the state, of departments, communities, or of particular companies,
whether toll is to be charged in any way or not, or whether a subsidy
of treasure is to be granted or not, or whether any part of the public
domain is to be used or not, can only be executed by virtue of a spe-
cial law, which can be passed only after an administrative inquiry
has demonstrated the feasibility and desirability of the work, and a
report has recommended it.
A central administrative ordinance is sufficient to authorize the
execution of departmental routes, that of canals arid branch railroads
less than 20,000 metres in length, and of bridges and other works of
less importance; but such ordinance must also be preceded by due
inquiry, examination, and report on the project, in conformity with
regulations formulated by the central administration.
With respect to the administrative and legal forms to be followed
in the condemnation of properties for works declared to be of public
utility, this law goes into minute details at great length, expressly
defining and prescribing each step to be taken, under the following
general headings: Administrative measures of inquiry preceding con-
demnation ; effect of condemnation on mortgages and other similar
rights; the rule of indemnification; the payment of indemnities; con-
tracts of sale; and others not at all necessary to enumerate.
WAY FOR MAIN AND SKCOXDARY WORKS.
From the first part of this long law, it appears that wherever it is
proposed to condemn property for purposes of public works, such as
for right of way for a canal, there must first be a report from the
government engineers defining or recommending the proposed route,
and showing the lands, etc., proposed to be taken in each commune
or community. This plan is posted at the local mayoralty house, and
advertised for inspection of all concerned. Thereafter, an inquiry is
held by a commission to hear all objections, criticisms, or suggestions
of change. On the result of the report of this commission, with the
124 FRENCH IRRIGATION LEGISLATION.
evidence annexed, the prefect designates the route to be taken and
defines the properties it will be necessary to take for the work. Should
it be necessary from the report of the commission to modify the plans
proposed for the works, the subject must be referred to the central
administration, and the prefect awaits its decision. The properties
being thus denned, the question becomes one for the courts, accord-
ing to the provisions of the law which follow under the headings
already given.
In accordance with this law, whenever a canal enterprise of impor-
tance is to be authorized, so that the projectors may have the right of
condemning private property for right of way or other necessary pur-
poses of the work, there is a special law passed which declares the
proposed work to be one of public utility, and entitled to the ben-
efits of the provisions of the laws providing for the condemnation of
private properties for public use.
This method of acquiring right of way for great works of public
importance is of ancient origin in French legislation, for although
the special laws cited are of comparatively recent date, they are
founded on and are elaborations of others preceding them.
These provisions, however, applied only to rights of way for main
works — those which could be recognized as being of public utility;
and until 1845 there was no method, except by amicable private pur-
chase, to acquire rights of way for the minor distributing ditches of
great canal systems, nor was there any possibility of a private indi-
vidual or of any organization acquiring a right to conduct water over
lands against the will of the owner of the lands, until the work had
been officially examined and declared to be of public utility as above
explained.
SECTION II.
RIGHTS FOR PRIVATE WATER-WAYS.
SKRVITUDE OF RIGHT OK WAY. *
The passage of the law of 1841, on the condemnation of private
properties for purposes of public utility, which was really in this
respect a re-enunciation of laws already existing, brought the right of
way question to a head, so that in 1843 a proposition was introduced
in the chamber of deputies, for a law declaring that all irrigation
works constructed by companies or individuals should be declared to
*See, particularly, Dumont, Book II, Chap. V, and Lex A/mnlc* <1cx Pout* ct Chauzsecs, Laws
and Decrees, 1845 and 1847: also, De Passv.
WAY FOR PRIVATE CANALS. 125
be of public use according to the forms of the law of J841. And this,
in turn, caused the introduction of another proposition for a law of
dispossession for right of way in favor of all proprietors, whether
owners of bank lands or not, who wanted to use water for the irriga-
tion of their estates.
It was pointed out at the time that one of these propositions was
opposed to the principle of the fundamental law of the country—-
that private property could only be condemned for public and not
for private use; and that the other proposition was opposed to the
well established exclusive right of riparian owners to waters of non-
navigable and iion-raftable streams. The whole question of a draft
of a law as a substitute for these was then referred to a commission,
and this commission reported, and the chambers, after a long con-
sideration, passed the law, which here follows:
La
w upon the Right of Way for a Canal — Passed twenty-ninth of April, 1845.
Article 1. Every proprietor who may wish to be served for the
irrigation of his property with the natural or artificial * waters of
which he has the right to dispose, can obtain the passage for these
waters over intermediate lands by previously paying a just indem-
nity.
There are excepted from this servitude houses, pleasure grounds,
gardens, parks, and inclosures belonging to dwellings.
Article 2. The proprietors of lower lands will have to receive the
waters which percolate from lands thus irrigated; being indemnified,
however, if damaged.
Houses, pleasure grounds, gardens, parks, and inclosures belonging
to dwellings will be equally excepted from this servitude.
Article 3. The same right of passage over intervening lands will
have to be accorded to the proprietor of a property submerged in
whole or in part, for the purposes of drainage.
Article 4. The questions to which the establishment of this service
will give rise, the fixing of alignment of the water conduit, of its
dimensions, and of its form, and the indemnities due — it may be to
the proprietor of the land traversed, it may be to that of the property
which will receive the drainage waters — will have to be taken before
the courts, which in pronouncing on them will have to conciliate the
interest of the enterprise with the respect due to property.
It will be tried before the tribunal in a summary manner, and if a
question, for exporting, it will only be necessary to name one single
expert.
Article 5. There will be nothing detracted by the present provis-
ions from the laws which regulate the police of waters.
The consideration of this law on its passage gave rise to long and
stormy debates in the chambers of the legislature, in which it was
attacked on about the same grounds as those previously referred to
#" Artificial " waters: those drawn from deep wells or otherwise brought to the surface of the
ground artificially.
126 FRENCH IRRIGATION LEGISLATION.
the commission. A synopsis, with extracts from the speeches at
length of these debaters, is given by M.M. Dumont. and as the result
of their consideration of the subject the following conclusions are
drawn:
First — That the law had for its sole object the establishment of a
legal servitude to be laid on property in obtaining a right of way to
conduct across it such waters as one has the right to dispose of.
Second — That it leaves intact all the points of the laws and decisions
preceding it and relative to the ownership and police of waters.
These conclusions have since been repeatedly verified by decisions
of the courts of highest resort.
The nature of this servitude and the spirit in which it was advo-
cated may be well understood from the following: In the course of
the debate the judge advocate said, "the judicial power can accord-
ing to the case, grant or refuse the servitude, as it is or is not justified
by real irrigation interest;" and commenting on this and other
paragraphs M.M. Dumont say:
" It is without doubt that the courts are not obliged to grant the
servitude of passage every time it is demanded; on the contrary the
law imposes on them the duty to estimate the degree of usefulness it
has, to balance this usefulness with the injury that the digging of
the canal might cause to properties, to examine if the water pro-
posed to be diverted has not already an equally beneficial applica-
tion, and, finally, to consider all the circumstances of the case."
"The servitude is created for the benefit of lands for irrigation,
and not for conducting water for ornamental or any other purpose,
and the courts will refuse to allow its application for any other
purpose than those of the irrigator."
SERVITUDE OK RIGHT TO .VISIT A DAM.
The passage of this right of way law went far to clear away the
difficulties attending the establishment of private irrigation works
by riparian proprietors on the non-navigable streams, and those who
had obtained water concessions on public streams from the adminis-
tration, and those who owned the water of springs. But a great diffi-
culty yet remaining was that of acquiring the right to construct a
dam against the bank of another riparian proprietor. One might
own one bank of a stream yet could not build a dam in it to divert
water on to his own land, should the owner of the opposite bank
object to the end of the dam being rested against his land. Or one
might have right of way to conduct water, but not right to put a
dam in a stream to divert it, because the bank owners objected, and
this, too, when^he administration may have approved the project.
*See, De Passy, and Dumont.
WAY FOR PRIVATE CANALS. 127
This condition of affairs led to great conflicts, and these resulted in
the passage of the following law:
Law Upon the Right to Abut a Dam— July 11, 1847.*
Article 1. Every proprietor who will wish to be served for the
irrigation of his property with the natural or artificial waters of
which he has the right to dispose, will be able to obtain the privilege
of supporting upon the property of the opposite bank-owner the works
necessary for its taking, upon previously paying a just indemnity.
There are excepted from this servitude the buildings, pleasure
grounds, and gardens belonging to dwellings.
Article 2. The riparian owner of the lands upon which the right
will have been claimed can always demand the common usage of the
dam by contributing one half of the expenses of the establishment
and maintenance of it.
Any indemnity will not be due in this case, and if any has been
paid it must be returned.
When this common usage will only be claimed after the commence-
ment, or the completion of the works, the payment which the second
proprietor will have to make in order to have the right to use it, will
be only that amount which it is necessary to expend in order to make
it available for taking out water on his bank.
Article 3. The questions to which the application of the two above
articles will give rise will be taken before the courts.
They will be proceeded with in a summary manner, and if there is
need of experts, the tribunals will name only a single expert.
Article 4. There will be nothing detracted by the present provis-
ions from the laws which regulate the police of waters.
APPLICATION OF THESK L
The law of 1845 concerning the servitude of right of way to con-
duct water, and the law of 1847 concerning the servitude of right to
construct a dam, were intended for application only in cases of indi-
vidual or private works proposed, and unless their application is
specially extended by law they cannot be availed of by companies or
associations of land owners.
Two individuals cannot jointly force the application of these laws,
though each for himself can. An association of landholders cannot
avail themselves of these laws unless they organize according to the
terms of a law of 1865, regulating the formation of syndicate associa-
tions, which expressly extends to such associations when duly recog-
ni/ed by the administration, the benefits of the laws in question.
Hence "free" syndicate associations cannot force a right of way or a
dam right, but "authorized" associations can.
The decrees of authorization of syndicate associations and the laws
or decrees sanctioning the formation of canal companies, and grant-
* Les Annales des Ponts et Chaussecs, Laws and Decrees, 1847.
# See, De Passy, pp. 50, 89, 90, 100, 287, 314, and elsewhere.
128
FRENCH IRRIGATION LEGISLATION.
ing them concessions of water privileges, always contain a clause
extending to them the right, not only of eminent domain under the
laws of 1833 and of 1841, to condemn lands for rights of way, hut also
the rights of laying the servitudes of right of way and right to abut
a dam under the laws of 1845 and 1847, and it is usual to stipulate
that lands for all main works shall be expropriated and paid for by
them, and that only the servitude of right of way shall be acquired
for minor works.
The right of way law cannot be applied to force an upper ditch
owner to enlarge or deepen his existing canal in such manner as to
pass sufficient water for other irrigations below ; but it may be used
to force any number of ditches through one piece of property, if the
courts choose to allow its application for the purpose.
AUTHORITIES FOR CHAPTER VI.
In preparing this chapter I have consulted and compared the following named authoriti
Dumont. — [Work cited as an authority for Chapter II (French).] See Hook II. Chapter V.
De Passy. — [Work cited as an authority for Chapter II (French).] See pp. 50, 89-100. 'J*7.
and elsewhere.
HI,
efi Annales des Fonts et Chaussecs. — [Work cited as an authority tor Chapter II (French).] See
Vol. XII, p. 328 etseq., Vol. XX. pp. 203-217: also. Volfc Laws and Decrees for !S4.">
and 1847.
CHAPTER VII.— FRANCE'6';
IRRIGATION ENTERPRISE AND ORGANIZATION.
SECTION I. — Governing Influences.
Diversity of Climates.
Sentiment Concerning Irrigation.
Small Land-holdings.
The Agriculturists not Capitalists.
Jealousy of Property Rights.
Timidity in Regard to Indebtedness.
Heavy Cost of Works.
Poverty of Peasant Proprietors.
High Valuation of Lands.
Riparian Rights and Other Complications.
SECTION II. — Irrigation Organizations.
Speculative Companies.
Associations of Landholders.
Free Syndicate Associations.
Authorized Syndicate Associations.
Powers of Prefects and Principles of Association.
SECTION I.
GOVERNING INFLUENCES.
CLIMATIC AM) SOCIAL.*
France lies in the /one intermediate between those latitudes, in
Europe, where, on the one hand, irrigation is, as a general thing, an
absolute necessity to success in agriculture, and where, on the otherv
hand, it is useful only as an auxiliary to special cultivations, in lim-
ited localities and for particular purposes.
The climate of France, as affecting irrigation, is almost as varied
as that of California; so that there are regions where the annual rain-
fall scarcely exceeds a foot in depth, and where it is so distributed,
as to time, that there must be artificial waterings of all crops, to sup-
ply the deficiency of moisture to the soil and plant, and irrigation is
practiced during the spring and summer months for this purpose.
And, again, there are regions, by comparison, quite cold, with twice
See, Reclus, chapters " France'': also, Mangon, and De Buffon, Book I, Sec. I.
9'1
130 FRENCH IRRIGATION LEGISLATION.
to three times as much rainfall as in those first spoken of, and dis-
tributed well throughout the year, but where irrigation is practiced
far more copiously, and every month in the year, not to supply
any deficiency in moisture to the soil and plant, but to serve as a
fertilizer and as an equalizer of temperature to the grass meadows
upon which extended dairy farm interests depend.
As a general thing, however, France is less an irrigation count ry
from necessity and for general profit, than is California, for the valleys
of France, with exceptions limited to small regions, receive from
sixteen to thirty-two inches of rain each year, while ours of California
receive only ten to eighteen inches, as a general rule.
The necessity for and value of irrigation was not sufficiently appre-
ciated by the generations past, to bring about a general sentiment in
favor of national encouragement to irrigation enterprise. Irrigation
has been in France, as in California, until within comparatively few
years, looked upon more as a local necessity, for some parts of the
country, than as a valuable auxiliary to general agriculture, and as a
process essential to higher and fuller agricultural development for all
parts of the country. Hence, there has not been that widespread
appreciation of the subject among the people of all France which w« .
not realizing these points, might expect to find recorded.
SMALT, LAND-HOLDINGS AND JKALOUSY OK KIUHT-
The lands are very generally held in small tracts; and close and
thorough tillage has taken the place of that wasteful, but easy, use of
water, which is substituted for skill and industry in some other
countries which might be mentioned.§
The generally humble condition of the peasant land proprietors, of
south France particularly, and the minute subdivision of land, may
be judged from the fact that when the association for the canal
de 1'Isle, department of Vaucluse, was set on foot in 1845, there were
1,414 subscribers, of whom 1,095 desired irrigation for tracts less than
one hectare (2.47 acres) each, and 205 others for tracts less than two
hectares, and, out of the whole number, only four subscribed for
areas greater than ten hectares (24.7 acres) each.
The St. Julian canal, eighteen miles in length, irrigating from
6,000 to 7,000 acres of land, is the property of an association of irri-
gators, having 2,060 members; and the Crillon canal, irrigating 1,600
to 2,000 acres, has 750 subscribers to its construction and main-
tenance; these cases showing from three to three and a half acres in
* See. Moncrieff, pp. 38, 39, 61-63, 76, 77, Chap. II ; also, Barral.
g It is not to be understood from this, however, that the use of water in France is particularly
economical. As will be shown in a later part of this report, such is not the case.
INFLUENCES RETARDING ENTERPRISE. 131
one instance and from two to two and a half acres in the other as an
average to the subscribing proprietor or irrigator.
"This minute subdivision of land seems to be at once the promo-
ter and the hindrance to the extension of irrigation in France. It is
these peasant proprietors alone, who till their own fields with their
own hands, who fully appreciate irrigation." Without it their lands
require less labor than can be put on them to advantage with it;~arfd
their spare time must be spent in labor for hire which is uncertain
and not very remunerative.
With irrigation their time may be fully occupied on their own
lands and their labors be rewarded by sure and abundant harvests.
The large land proprietor, on the other hand, who lets his land out
to tenants, reaps less direct benefit from irrigation, for the tenants,
alleging that much labor is bestowed on works that remain with the
estate, refuse to pay materially higher rents by reason of irrigation
facilities.
The greater appreciation of and desire for irrigation, by small pro-
prietors than by large, is attested by the figures heretofore given for
the case of the canal de 1'Isle, and by the fact that in this case the
small proprietors generally subscribed for water for the whole or at
least half the areas of their lands, while the few large proprietors
who interested themselves at all in the undertaking, subscribed for
very small portions of their estates.
The larger landholders cultivate their fields in cereals and other
crops not requiring irrigation, and taking less constant and skilled
attendance and labor than do those irrigated; and, hence, as a gen-
eral thing, in this south of France, where irrigation is most neces-
sary, were it not for the desire of the smaller proprietors for irrigation
on their tracts, many existing canals would not have been built when
they were, or perhaps not at all.
HKAVY COST OF WORKS — POVKRTY OF PEASANTS.*
And now, where irrigation has not yet been introduced, these peas-
ant proprietors are poor and have no credit, individually; so that
the want of capital among them, and the apathy of the larger pro-
prietors, forms the greatest drawback to the further extension of irri-
gation.
In this condition of affairs a great trouble met with in the promo-
tion of irrigation enterprise is the difficulty of securing subscriptions
for water for a reasonably large proportion of any compact district,
so that the lands subscribed for, being in small parcels and scattered,
*See, Moncrieff, Chap. II.
132 FRENCH IRRIGATION LEGISLATION.
the works are made very much more costly to the unit of area irri-
gated than they otherwise would be, and the cost of maintenance and
administration is greatly increased.
In the case of the canal de I'lsle, already spokon of, the total cost
of construction for all works was estimated at about $23 per acre
for lands subscribed for, as against $6 50 per acre if all the irrigable
lands in the district had been subscribed for and the works made
adequate to supply water for them.
HIGH VALUATIONS OK LANDS.*
Another great drawback to the advance of irrigation is the high
price that land commands without water, and the high price of
rights of way.
In the region spoken of, dry valley lands range in price from $300
to $800 per acre, while if commanded by a canal for irrigation, and
having a subscription for water, they are worth only about thirty to
fifty per cent more, according to circumstances.
Now, in California lands purchasable at $3 to $10 without oppor-
tunity or reasonable hope of irrigation, command $50 to $200 per
acre when water is brought to them and they have the privilege at
hand to receive and pay for irrigation.
There has been no such opportunity to speculate in lands in France,
in connection with irrigation enterprise, as there has been in Califor-
nia, and, thus, a great incentive to the construction of works has not-
been present there that has been afforded here.
THK RIPARIAN RIGHTS ijrKSTION.
The riparian rights question which has come up, as we have- seen,
in a peculiar form in France, and the right of way question, also
distinctive in its character, have held back irrigation enterprise
immeasurably, but the conservative business temper and poverty of
a large element of the agricultural population, and the indifference
of the landed capitalists to the development of an industry which was
calculated to render the care of estates more burdensome, has done
much more to prevent advancement in this line of enterprise.
It has been the object and apparently the earnest desire of the
government, not only to provide by legislation some means of
directly meeting and setting aside the circumstances and retarding
influences spoken of, but to impart an active impulse to agricultural
development by enterprise in irrigation.
* See, Moncrieff, Chap. II ; also, Barrul.
INFLUENCES RETARDING ENTERPRISE. 133
It DOW remains to be seen what means have been employed with
this view.
SECTION II.
IRRIGATION COMPANIES AND ASSOCIATIONS.
SPECULATIVE COMPANIES.*
Although not an invariable rule, the form of irrigation enterprise
in France, and of government encouragement thereto, has been largely
governed by the character of the stream — whether floatable or non-
floatable — from which it was necessary to derive the supply of water
in each case.
From floatable streams — dependencies on the public domain — the
government, exercising the full right of state ownership, could author-
ize diversions by and encourage the construction of works on the
part of any worthy applicant for concessions. And, hence, capital-
ized companies of non-landholders have sought and obtained sanc-
tions and privileges for the construction of works from such streams.
The character of these organizations and their method of operation
in the enterprises undertaken, will be of necessity sufficiently illus-
trated in the next section of this chapter, in speaking of the policy
pursued by the government towards them, and, hence, nothing fur-
ther will be said of them here.
ASSOCIATIONS OF LAND OWNERS.
On streams not of the public domain another form of organization
for works has been necessary.
Remembering that water rights for purposes of speculative canal
enterprise, are not to be acquired on streams not declared navigable
or floatable, that the waters are held for the bank lands, and that land
holdings are, as a very general rule, in small parcels, we see that indi-
vidual enterprise in canal building from such streams is kept within
very narrow limits.
The waters are dedicated to the use of the riparian proprietors for
the irrigation of their river lands — the water, in a measure, is attached
to the lands, and cannot be alienated.
A proprietor by buying back land next adjacent to his bank land,
can to some extent increase the width of his irrigable area, but the
courts and the administration — the one restricting the extent of his
#See, De Passy, pp. 103-130; also, Dumont.
§ See, Dumont, Book II, Chap. VI, Sec. I ; De Buffon, Vol. 2, pp. 89-98; De Passy. pp. 79-102.
134 FRENCH IRRIGATION LEGISLATION.
water privilege, and the other the size of his headworks — would very
soon stop any attempt at an extension in this way which was not
equitable to other proprietors.
Furthermore, rivers of this class in France generally run in val-
leys whose lands slope down towards the streams (and not, as do many
streams in California, across plains which slope back each way from
the stream), and, consequently, canals of short length cannot com-
mand any considerable width of territory for irrigation.
These circumstances have resulted in the construction of a great
number of very small ditches, where, as is frequently the case, the
grade of the streams has been sufficiently rapid to admit of the water
being brought out upon the land within the limits of one, or at most,
several land holdings.
The scope of these individual and partnership enterprises has been,
until within a few years in the past, still further restricted by the
absence of any legal means of acquiring right of way for a canal
through, or right to build a dam on or next to the lands of others.
The leading writers on irrigation dwell upon the great drawback
to irrigation in France, which has resulted from these circumstances.
Furthermore, the simple partnership association which would
answer as a business arrangement between several neighbors, for the
construction of a little private ditch, would not answer for the organ-
ization of a large enterprise for the benefit of perhaps several hun-
dred or thousand land holdings.
The French agriculturists appear to have been extremely jealous
and careful of their rights; desiring to have and hold them, as near
as possible, immediately under their personal control, and hence
have not adopted forms of association which would "be popular in
this country.
These circumstances led to the passage of laws recognizing the form
of organization known as a synd '«•«!< n*xiH-'mtinn, which is that now
generally adopted by landholders for the conduct of works on joint
account, necessary in the development, in any way, of agricultural
neighborhoods.
A syndicate association is a society of land owners, organized accord-
ing to general forms prescribed by laws and decrees, but with terms
of organization arranged according to the will of the members, as
embodied in the articles of association.
IRRIGATION ASSOCIATIONS. 135
AN ANALYSIS OF THK LAW OF ASSOCIATION.-
The law recognizes eight purposes for which syndicate societies
may be formed, as follows:
First — The construction and management of embankments and
other works for protection against the sea, torrents, and the waters of
non-navigable rivers.
/Second— The cleansing, deepening, straightening, or regulating
canals and water-courses not navigable nor floatable, and of irriga-
tion and drainage canals.
Third — The construction and management of works for the drain-
age of fresh water marshes.
Fourth — The construction and management of works for the recla-
mation of salt marsh lands.
Fifth — The construction and maintenance of works for the sani-
tary improvement of wet and unhealthful districts.
Sixth — The construction and management of works for irrigation
and colmatage.
Seventh — The construction and maintenance of works of land
drainage.
Eighth — The construction, maintenance, and management of roads
and every other improvement of agricultural lands and neighbor-
hoods, which requires cooperation amongst proprietors.
The general organization of associations is the same for all of the
purposes specified, but the details of agreement and administration
differ with the object in view. The forms and provisions ordinarily
followed and adopted in and by associations for irrigation, only, will
be spoken of here.
The law recognizes two kinds of syndicate associations: The first
called "free," because held together only by the expressed will of the
members; and the second called "authorized," because specially
declared, in each case, to constitute an organization of public utility,
and so "authorized" to exercise the right of eminent domain in con-
demning private property for the purposes of the association.
These societies are formed upon the basis of the land to be benefi-
cially affected by the works contemplated; representation and voting
power in the general assembly of subscribers being proportioned
somewhat to the area held, varying in different cases, within pre-
scribed bounds, according to circumstances and as determined and
settled in the constitution or articles of agreement of the society.
Their boards of directors called syndics, constitute the syndicate
* See, particularly, De Buffon and De Passy, as cited j also, law of June 1,1865, Decree of
November 17, 1865", and the Ministerial Regulation — Appendices 2, 3 and 4, De Passy.
136 FRENCH IRRIGATION LEGISLATION.
proper, although the whole association is frequently called a syndicate.
Being legally constituted bodies, they can enter into court, acquire or
dispose of, exchange or hypothecate property, and do all that an indi-
vidual might do in a business way.
KKKK SYNDICATE ASSOCIATIONS.
Free syndicate associations are formed by the declaration of the
associates, and the signing of the agreement of association, etc., as
follows:
The agreement or act of association specifies the object of the enter-
prise, regulates the mode of administration of the society, and fixes
the limit of authority confided to the administrators or syndics. It
determines the ways and means necessary for the raising of funds,
and the mode of collecting assessments or subscriptions.
It must be published in a journal of official announcements, and
copied into the records of the prefecture.
In the case of an association formed for the construction, mainte-
nance, and management of irrigation works, all proprietors of lands
susceptible of irrigation, within the district, must be admitted as
members should they desire to join; each designating the lands and
the area thereof for which he desires to subscribe.
The volume of water conceded is ordinarily divided amongst the
proprietors in proportion to the area subscribed for, and without refer-
ence to the kind of crop or character of land cultivated and worked.
These terms being fixed by the articles of association in each case,
and not by the law, are variable, according to the will of the asso-
ciates.
The right of irrigation goes with the land subscribed for, and can-
not be alienated or passed to other lands.
Each associate is bound to accord right of way for ditches through
his land, upon payment of indemnity fixed by arbitration. Thus,
law suits are avoided on this score.
Each associate is a member of the general assembly, having voting
power according to the terms of the agreement in each case. Some-
times the vote is by units of land area between certain limits, a mini-
mum area and a maximum area to a vote, or, for instance, one vote
to each holder of from one to five hectares. Thus the proprietor
owning between one and five hectares, would have one vote each;
those between five and ten hectares, two votes each, and so on, a vote
to each five hectares or fraction not less than one hectare.
The general assembly elects directors, called syndics — five, seven,
IRRIGATION ASSOCIATIONS. 137
nine, or more, as the case may be — who form the syndicate, or board
of management of the association.
In some organizations the syndicate is all powerful — in others, many
questions have to be submitted to the general assembly for final set-
tlement.
The syndicate name from their number a manager or general
director, who is the chief executive officer of the association.
Other officers, as secretary, treasurer, etc., are similarly named, as
in societies whose organization is familiar to everybody.
The syndicate employs an engineer, and all projects for works are
duly and completely drawn up and adopted by the board before con-
struction is authorized.
The cost of works and expenses of management are ordinarily borne
in proportion to area subscribed for, and without reference to value
of lands or crops, or character of cultivation or soil.
Assessments under the law, are made collectable as taxes, and are a
lien on the property subscribed for.
AUTHORIZED SYNDICATE ASSOCIATIONS.
All syndicate associations must be first formed as free associations,
and they may then apply to the administration for recognition as
authorized associations.
The prefects of the provinces have authority to make these decrees
of recognition and authorization, following after certain forms and
instructions embodied in decrees and laws of the general govern-
ment.
The application to the prefect must be accompanied by plats of
the proposed district, including the lands to be irrigated, each parcel
being designated and tinted with a color representing its condition
as to cultivation, soil, etc., and whether or not it is irrigable, and if
so whether or not it is subscribed for in the association.
A list of subscribers accompanies these plats, and a statement of
the financial ability of the subscribers to meet their engagements.
A regular project for works and for financial management is also
submitted, from which to judge of the feasibility and cost of the
scheme and the adequacy of the organization to carry them out.
The law provides that the desire of the members of the free asso-
ciation, to have it converted into an authorized association, must be
expressed in general assembly, as follows: "If the majority of the
individuals interested, and representing two thirds of the area of
land subscribed for, or if two thirds of the individuals owning more
than one half of the area of land subscribed for," desire the change,
138 FRENCH IRRIGATION LEGISLATION.
the prefect, being satisfied of the soundness of the enterprise in other
respects, issues the decree of authorization. 9
The application must show, in addition to all the above, the plan
of the organization, the plan of representation in the general assem-
bly and the basis for voting, as well as the basis for the division of
expenses.
Following this application a public announcement is made. The
application is published and the plans, etc., are opened to inspection
and comment and everything opened to objection.
Each proprietor of lands affected is notified as to the application ,
and requested to appear at the prefectorate if he has any objections
or criticisms to make.
A register is exposed, in which every interested party may write
his remarks and criticisms.
A commission of landholders not interested is appointed to report
on the results of the examination.
These and other formalities, taking a month or more according to
circumstances, being gone through with, the prefect considers the case
and renders his decree of authorization or refusal.
The action of the prefect one way or the other, is appealable from
to the minister of public works.
PRKFKCTORIAL POWER — GOVERNMENT POLICY.
Prefects may refuse to issue decrees of authorisation for associa-
tions, for various causes, amongst which are the following:
The district not being large enough to render its works of public
utility.
The works proposed themselves not being sufficiently important to
justify the foundation of an authorized association.
The district not comprehending the area it should take in, and
other proprietors desiring to come in.
The lands within the district not being sufficiently subscribed for.
In the case of authorized associations the government in a measure
becomes accountable for the meeting of their engagements, so that the
assessments are not only collectable as taxes by the officers of the
syndicate, but the government authorities, if necessary, may interfere
and force their collection so as to make good the debts of the district.
Condemnation of lands for the benefit and use of the association is
conducted by the syndicate in conformity to a general law providing
for the condemnation of private interests for the public good, but this
can be done only after a declaration of public utility has been made
in favor of the proposed works in each case by the council of state.
IRRIGATION ASSOCIATIONS. 139
In cases where the association asks a subsidy from the government
funds, or from those of the department, it is always provided that the
prefect may name a number of syndics to represent the state or the
department in the syndicate, in proportion to the part of the whole
cost of the works which the subsidy provides for.
In cases where the association is formed for irrigation, or any pur-
pose where water is desired as an auxiliary to some operation 4o be
carried forward, the formation of the society may be had for only a
portion of the district embraced within the exterior limits of lands
subscribed for, but in cases where, as in reclamation or drainage, all
of the lands in the district are necessarily affected by the works, the
whole area is brought under contribution, and when two thirds of
the land is subscribed for, the other third is forced to contribute its
share to the expense.
This rule is the outcome of a long struggle in France, in which it
has been proven, that some landholders will always hold back and
prevent necessary public improvements, and that the interests of the
public demand, in cases of reclamation and drainage, that they be
made to join in with the majority in their district, or sell out to those
who will carry forward the works. And the tendency of events and
sentiment is towards a similar policy with, respect to irrigation dis-
tricts, also.
AUTHORITIES FOR CHAPTER VII.
In the preparation of this chapter I have consulted and compared the following named
authorities:
Reclus. — [Work cited as authority for Chapter II.] See chapters, " France."
DePassy.— [Work cited as an authority for Chapter II.] See, particularly, pp. 79-102, 103-130,
arid appendices 2, 3, and 4.
Dumont. — [Work cited as an authority for Chapter II.] See, particularly, Book II, Chap. VI,
Sec. I.
DeBiifl'on.— [Work cited as an authority for Chapter II.] See Vol. I, Sec. I; Vol. II, pp. 89-98.
BarraL—" Irrigation in the Department of the Mouths of the Rhone." By J. A. Barral; being
an official report of a Government Commission of Inquiry into the subject of the
use of Waters in Irrigation in France; 2 vols. quarto; Paris, 1876-77.
BarraL— "Irrigation in the Department of Vaucluse." Same set of reports as the preceding;
2 vols. quarto; Paris, 1877-78.
Manyon.— " The Employment of Water in Irrigation." M. Herve Mangon, a Chief Engineer
in the Government Corps of Civil Engineers, France; 1 vol.; Paris, 1869.
Mbncriejf. — " Irrigation in Southern Europe." By Lt. C. Scott Moncrieff, Royal Engineers,
Great Britain; 1 vol.; 8 vo.; London, 1868. See, particularly, pp. 38, 39, 61-63, 76, 77.
CHAPTER VIII.— FRANCE(7);
GOVERNMENTAL POLICY AND IRRIGATION CONCESSIONS.
SECTION I. — Features of Policy and Forms of Enterprise.
Political and Social Conditions.
Forms of Governmental Encouragement of Irrigation.
Early Irrigation Enterprise.
Tax Rebate on Advanced Values.
Subsidies, Advances, Loans, and Guarantees.
Prize Competition in Irrigation Practice.
Statistical Atlas of Irrigation.
SECTION II. — Notable Instances of Enterprise and Encouragement.
The Canals — Des Alpines, Carpentras,
Cadenet, St. Marterey, Siagne,
Siagnole, Bourne, Rhone,
Vesubie, Pierre-latte, Mauosque,
Herault, Ventavon, Petite- Vence,
Malpas, St. Marcel, Argeliers, and Raouel.
SECTION I.
FEATURES OF POLICY AND FORMS OF ENTERPRISE
POLITICAL AM) SOCIAL CONDITIONS.
The French government, although apparently always appreciating
the value of irrigation to all France, and directly favoring irrigation
enterprise, as we shall see, by several important measures of policy,
has not, as in the case of interior navigation and the promotion of
arterial drainage and consequent land drainage or reclamation of
lands, directly taken the lead in the construction of works for the
purpose, at public expense and wholly under national management,
except in cases where the submersion of vines to exterminate the
phylloxera vine pest was a ruling consideration, or in districts where
the landholders were exceptionally poor and without credit.
Rivers were improved and made navigable where before unfitted
for the purpose, and great canals constructed for navigation, as public
works of the nation, more than a century ago. The policy which
prompted this action has ever been in the ascendancy, and was quite
FEATURES OF POLICY AND FORMS OF ENTERPRISE. 141
fully developed under the last empire, and has been renewed and
enlarged upon by the present republic; but towards irrigation, the
policy has been rather to encourage the efforts of landed proprietors
in constructing their own works, or to encourage the investment of
capital in irrigation enterprises upon terms such that, at the expira-
tion of long periods of years, the works should revert to associations
of the owners of the lands irrigated, or to the central, departmental,
or municipal governments, for the benefit of the people.
It is to be remembered that all of the irrigable lands were in pri-
vate ownership — the government not having any irrigable public
domain — and that in the view of men of broad ideas, such as the
rulers of the country have probably been, all France was an irriga-
tion country, and should the government undertake the construction
of works for the irrigation of one section, without some specially
potent reason, it should for equally good reasons bring water to the
irrigable lands of all the people.
Furthermore, the French agriculturists, although largely composed
of a peasantry inferior to American farmers in enterprise, wedded to
old habits and customs, and comparatively slow to take up with and
realize the lessons of experiences had elsewhere, have never stood in
that relation to their government, which those of Egypt and of India,
where nearly all irrigation works are built and managed by the gov-
ernments, have to theirs. The French government realized this dif-
ference in the people and the political and social conditions of coun-
tries, when in its province of Algeria it pursued a different course
towards irrigation, and, following in the footsteps of the khedives of
Egypt and the English rulers of India, constructed great irrigation
reservoirs, canals, and ditches, as public works of the nation.
FORMS OF GOVF.RNMKNTAL ENCOURAGKMKNT.'*
As we have seen, irrigation enterprise has taken three forms:
First — In the construction of works on private account for the ben-
efit of private lands, by one or several land proprietors jointly.
Second — In the construction of works for the common good of the
owners, by associations of land proprietors.
Third — In the construction of works by individuals, companies, or
municipalities, for the distribution and sale of water to consumers.
The government has encouraged all these forms of enterprise, and
has also encouraged the skillful and economical use of water in irri-
gation by the individual irrigator.
# See, De Passy, Dumont, and Malapert,- but, particularly, the various laws making conces-
sions to companies, societies, and associations, as hereafter quoted, and many others to be found
in the volumes of the Annates des Fonts et Chaussees.
142 FRENCH IRRIGATION LEGISLATION.
This policy of direct encouragement has in application taken vari-
ous forms, as follows :
First — A remission of tax assessments, for certain long series of
years, on the increase of land valuations due to irrigation.
Second — The loaning of funds on most favorable terms to compa-
nies or associations undertaking irrigation works.
Third — Advancing to such companies or associations a large part
of the cost of their works and taking the works themselves in pay-
ment at the expiration of long term concessions.
Fourth — Subsidizing enterprise in the construction and manage-
ment of irrigation works, by payment of large sums to the sole benefit
of the companies or associations, or that of the departments, munici-
palities, or irrigators ultimately acquiring ownership of the properties.
Fifth — Guaranteeing interest on capital invested in or borrowed on
great irrigation works.
Sixth — Construction of main irrigation works at state expense and
turning them over to syndicate associations for management.
Seventh — Construction and management of irrigation works wholly
as public works of the state.
Eighth — The inviting of competition in and granting premiums for
the best irrigation practice.
Ninth — The collection of irrigation statistics and useful data of
irrigation practice and the publication thereof for general information.
KARI.Y IRRIGATION KNTKRPRI8K.'
The first works of irrigation, other than purely individual enter-
prise, constructed in France, were made under grants of right from
the counts, and were combined with and secondary to those for water-
power purposes.
Thus, in 1171 Raymond V, Count of Toulouse, in the south of
France, granted to the bishop of Cavaillon the exclusive right to
divert water from the Durance, a river carrying 3,000 cubic feet per
second at its low stage, into canals for the purpose of supplying power
for cornmills to be constructed. The bishop constructed a work-
known as the St. Julian canal, and sixty -four years afterwards
granted to the inhabitants of Cavillon the right, for which they had
applied, to use the waters in irrigation. This led to an enlargement
and extension of the canal and an agreement as to the distribution of
expense for maintenance of the work, and to this day, in accordance
with this ancient usage, those who use water for power pay one third
#See, M. Coute in Les A/males des Ponfs et Chaiisse.es : also, Barral.
FEATURES OF POLICY AND FORMS OF ENTERPRISE. 143
the animal expense, while those who use it in irrigation pay the other
two thirds.
This was one of the first, if not the first enterprise of which there
is record, in which a trace of encouragement to irrigation on a large
.scale is to be detected.
Permits for water for irrigation from canals constructed by govern-
ment for purposes of navigation, were granted in the early perierd-ef
public works enterprise, but these were for very small quantities of
water and to individual farmers or small communities only.
At a later period in the construction of some government canals
for navigation, irrigation, as well as the supply of water for motive
power, for industrial uses, and municipal domestic purposes, was
considered, and the works planned so as to produce a current from
the main source of supply, such that while navigation was not im-
peded the other interests were to some extent subserved. But these
instances have been exceptional in the planning of public works, and
it cannot be said that irrigation has received generally any material
help in this manner until within the past few years, when quite a
number of small canals have been built out from the main canals of
navigation for purposes of irrigation, but largely with the immediate
view of preventing the spread of or destroying the phylloxera in the
vinevards.
TAX REBATE OX ADVANCED LAND VALUES.
The first form that direct encouragement to irrigation enterprise
on a large scale took in France, was that of an engagement, on the
part of the government, not to raise the assessed valuation of the
lands brought under irrigation above what it had been before irrriga-
tion, for a period varying from twenty to thirty-five years after the
waters were introduced on them, and not to tax the works of irriga-
tion at all for some such like period, but only to assess the lands
occupied by them, as they had been assessed before.
In the case of the Carpentras canal, in south France, constructed in
1853-54, this period was fixed at twenty-five years after the construc-
tion was completed, according to plans, specifications, and agreement.
This was a measure of encouragement more especially in the inter-
est of the land proprietors, who would unite in an association, under
terms of law, over a sufficiently large area to promise a development
calculated to be of future importance to the country, and who, under
government supervision, undertook to construct substantial works to
insure such development by the irrigation of their lands.
Even with this encouragement, irrigation made slow progress in
France. Great areas of country stood much in need of it; other con-
J44 FRENCH IRRIGATION LEGISLATION.
siderable regions were in a condition to be greatly benefited by it,
but the spirit of enterprise did not seem to take hold of the land-
holders generally in the cause.
The rich did not want to adopt a system of agriculture calculated
to make advisable the expenditure of much more labor on their
farms, and to require a much closer attention to their estates; and
they did not generally appreciate the moneyed value of irrigation
properly conducted.
The poor landholders in many quarters were not awakened to the
results of experiences in irrigation favorable to their class in other
quarters, were wedded to old habits and customs, were jealous of the
slightest move calculated in any way to interfere with their full
control of their little home grounds. They did not understand and
could not appreciate the benefits of association of interests for com-
mon good in districts. They each would like to have a canal or ditch
of their own, but did not want to join with several hundred or thou-
sand others to get one jointly.
Further than this, their poverty often, though their conservatism
were overcome, stood in the way of their undertaking large works,
even when they might combine for the purpose; and, as we have
seen, the laws themselves hampered the spirit of enterprise on non-
navigable streams, by the water-right complications which their
riparian right and other rules had brought about.
SIBSIDIKS, ADVANCES, LOANS, AND GUARANTEES OF INTEREST OR INCOME.
Government encouragement then took the forms of loaning funds
for long terms on irrigation works, advancing part of the cost of the
works, and taking the works themselves in payment at the end of long
terms, and subsidizing large irrigation enterprises, without return
other than nominal.
These forms of encouragement were more directly intended to give
irrigation projects good financial standing, and to enable capital to
enter into the field of enterprise with a certainty of a moderately
good return.
Being incident to the construction and management of works, and
not to the ownership or tillage of lands, these measures addressed
themselves to capitalized companies or societies; and a number of
such organizations have sought and taken up with government offers
of this kind, binding themselves to construct works according to pre-
fixed and approved plans, to maintain and manage them under pre-
arranged regulations and government supervision, to deliver water
for irrigation, etc., at predetermined rates, and, finally, to return the
FEATURES OF POLICY AND FORMS OF ENTERPRISE. 145
money borrowed, or turn over the works to the government or a de-
partment, or, perhaps, to a syndicate of landholders, at the expiration
of the term of the concession. Direct subsidies, without return, have
only been granted to syndicates of landholders, and presumably in
cases wherein their financial condition was poor and their credit bad,
and not to capitalized companies, as in the cases of the encourage-
ments by loans or advances on cost of works.
These measures of encouragement brought about also the organiza-
tion of a number of associations of irrigators, who have sought to
derive not only the advantages of the first measure, in the limitation
of taxing valuations, but also the benefits of loans, advances, and
subsidies.
PKIZE COMPETITION IN IRRIGATION PRACTICE."*'
The final measure of financial encouragement to irrigation which
the French government has instituted of late years, is that of giving
premiums for the best examples of irrigation practice in the several
great irrigation centers, the convoking of meetings of irrigators and
land owners on the occasion of making the examinations of compet-
ing tracts, and the publication in great detail of all valuable and
practical facts about irrigation acquired by these examinations, meet-
ings, and discussions, as a supplementary act of interest.
From the first report of Mr. Barral, the reporter of the commission
or jury appointed to conduct the first of these proceedings in the
department of the Mouths of the Rhone in 1875, 1 take the following
general account of the origin, purpose, and progress of the movement:
"The minister of agriculture vividly impressed with the role that
irrigation plays in the practice of agriculture in the south of France,
and the necessity for showing to the agricultural population all that
can be derived from irrigations properly conducted, in the interest of
individuals or the wealth of the country, resolved to institute for five
years in the department of the Mouths of the Rhone, a convention of
agriculturists, whether proprietors or renters, who have used waters
from the different irrigation canals in an intelligent manner." — [Bar-
ral, Vol. I, Chap. I.
Prizes and medals were promised by a decree of June 2, 1874, to
those whose use of irrigation waters could be shown to have been the
most systematic, economical, effective, and remunerative.
This decree of the minister of agriculture, representing the govern-
ment, was as follows:
" The minister of agriculture and commerce, with the object of
encouraging the efforts that tend to the progress of agriculture, and
especially to cultivation by irrigation, looking at the losses occasioned
by phylloxera, and the necessity to transform or increase the produc-
*See, Barral, particularly. Chapters I and II of each volume.
1021
146 FRENCH IRRIGATION LEGISLATION.
tion of irrigable land; looking at the notice of the inspector-general
of that region (the Mouths of the Rhone); on the proposition of the
director of agriculture, issues this
''DECREE :
Article 1st. Rewards are offered in the department of the Boudics
du Rhone, in 1875-76, '77, '78, and '79, to agriculturists, proprietors,
or renters, who have utilized in the most intelligent manner the
water of the different irrigation canals.
"Article 2d. These rewards are divided in the following manner:
"FIRST CLASS — Properties containing more than four hectares
(about 10 acres) of irrigated land—
" 1st prize— Gold medal, and 1,000 frcs. ($250).
" 2d prize— Silver medal, large size, and 700 frcs. ($140).
" 3d prize— Silver medal, and 600 frcs. ($125).
" SECOND CLASS — Properties irrigated to an extent of four hectare*
and less —
" 1st prize— Gold medal, and 600 frcs. ($125).
" 2d prize— Silver medal, and 500 frcs. ($100).
" 3d prize— Bronze medal, and 300 frcs. ($60).
" Article 3d. A work of art would be bestowed on the winner of the
first prize of one of the above classes, if recognized or judged worthy
of being specially rendered noticeable for the economical manage-
ment of water in the practice of irrigation. In case of the gift of the
work of art, the gold medal, for first prize, will not be bestowed.
"Article 4th. The statement of the contestants, containing an
explicit note and an exact indication of the extent irrigated, certified
by the mayor of the commune, must be addressed to the prefecture
of the Bouches du Rhone on March 1st, current year, at the latest.
"Article 5th. The director of agriculture is charged with the exe-
cution of the present decree.
" Made at Versailles, June 2d, 1874.
" L. GRIVART, Minister, etc."
In 1875, besides the very general interest awakened amongst all
agriculturists in the region, there were thirty-nine competitors for the
rewards or prizes, and each property and system was made the su
of special study by the commissioner or jury.
M. Barral says: "This study presented great interest. The question
was not only that of the competition for the prizes, but was also that,
which is of a higher order, of ascertaining the services rendered by
the water in giving a more abundant production, and in the protec-
tion of vines against the attacks of the phylloxera.
"The examples of irrigation practice reported are of the highest
importance to agriculture, and of great use to those who are in a posi-
tion to usefully employ water in cultivation.
"The circumstances under which these cultivations were found, in
response to the offer of the government, are varied enough to justify
the drawing of general conclusions from the facts observed. These
conclusions show that a great increase of wealth would be the result
for national agriculture, were works undertaken on all water-courses
capable of being transformed into irrigation canals or capable of feed-
ing such canals.
"In view of these things the judge-advocate of the jury received
FEATURES OF POLICY AND FORMS OF ENTERPRISE. 147
orders to enter into all the details of the subject. His statement must
contain all information needed in the practice of irrigation, and, also,
all that might be of service to the officers of the public administrations.
"With the view of making a network of canals all through the
country, it is important to encourage the forming of companies or
associations having power to construct works, and to develop amongst
the rural population the habit and skill of using water in irrigation
systematically; to incite land owners to engage in irrigation enter-
prise and advance the funds necessary for the diversion of large
streams with the certainty of receiving considerable profit from it.
" The object of this report, therefore, is not only to point out by the
proof of facts that can easily be verified, the justice of the decisions in
the competition of the year, but to make known to all agriculturists,
and to land owners, what an enormous source of wealth water is, and
in particular, that to-day it has become, in a great many places, the
providential means of saving the vineyards from the attacks of an
underground enemy (the phylloxera) which threatens to make them
disappear."
To give an idea of the extent of and importance attached to this
governmental move in the interests of irrigation, I mention the fact
that the commission, or "jury," placed in charge of the examinations,
awarding of premiums, and reporting results, was composed of (1) the
inspector-general of agriculture of France, president; (2) a deputy
inspector-general of agriculture, vice-president; (3) the life secretary
of the central society of agriculture of France, reporter; (4) the gene-
ral secretary of the society of agriculture of the department of the
Mouths of the Rhone; (5) the director of the agricultural college of
Paillerols, Lower Alps; (6) an engineer of the government civil engi-
neer corps, and (7) the vice-president of the society of agriculture of
the department of the Herault. And it is further notable in this con-
nection that the reports of this commission for the three years of
1875-76-77 take up four large quarto volumes, containing 1980 pages
of printed text and numerous maps and tables.
The decree quoted was for the one year of 1875, and the one depart-
ment of the Mouths of the Rhone, and was not only followed by a
similar decree and concourse and awarding of prizes each year in
that department, but, also, by like action in other departments; as,
for instance, in that of Vaucluse for which the first action was taken
in 1876.
Thus, gradually progressing through all the departments where
irrigation is practiced, the government, through its department of
agriculture, is not only making this most thorough and intelligent
study of the use of water in irrigation, but is directly encouraging
the irrigators, in the bringing of them together for discussion, by
awarding prizes for the best examples of irrigation practice, and by
publishing in detail all the data thus acquired.
148 FRENCH IRRIGATION LEGISLATION.
And further than this, not stopping at an examination and study
of practice at home, this department has sent well trained and intel-
ligent agricultural engineers to other countries where considerable
progress is being made in the use of water in irrigation, with instruc-
tions to personally study the systems and the practice, and collect all
available data, in print and by verbal communication, that may be
worthy of attention in the endeavor to enlighten and encourage its
own agriculturists and guide its legislative and administrative officers.
Thus, the irrigation works and practice of California, in common
with those of others of the United States, have been recently inspected
and studied by a special agent, and, in common with other points
where information might be had, the office of the State Engineer has
been quite thoroughly examined and data collected therein; and all
for the benefit of the irrigators and the agriculture of France.
STATISTICAL ATLAS OF IRRIGATION.*
And still again in another channel, we find the spirit of enterprise
and enlightenment moving the French government in this connec-
tion. Under a ministerial order issued in 1869 a special commission,
composed of nine civil engineers.and scientific and practical agricult-
urists of high standing, was appointed for the purpose of "revising,
coordinating, and preparing for publication the statistics relative to
the amount of water available in the streams, and the use made of it
in the various departments of France."
It was ordered that the chief of engineers should instruct all de-
partmental engineers and conductors engaged in the hydraulic service
to collect and forward the information desired from their several
fields of operation, according to certain prescribed forms, and that
this data should be turned over to the commission for its work.
The investigation has been progressing continuously, but is yet
unfinished. Several partial and local tables have been published,
and a set of eighty-five departmental hydrographic maps, which
form the basis for the study, have been issued for the use of the col-
lectors. The work is formulated with the view of treating the regu-
lation of the waters and their use, as a business proposition. The
government undertakes to find out exactly what waters are available
from year to year, and exactly what is done with them. The work
once done can be kept posted from year to year with comparatively
light work and expense, and will furnish that data from which econ-
omy and efficiency can be studied and published. So that if there is
*See, Ministerial circular, July 4, 1878, Les Annales des Fonts et Chaussees, Vol. CXXXIX, p.
1122.
• FEATURES OF POLICY AND FORMS OF ENTERPRISE. 149
water available it will be publicly known; if there is water wasted
and used unskillfully, it will be publicly known in a way to rebuke
the users; if there is water used with economy and skill worthy of
special note, it will be publicly known in a way to reflect credit upon
those who thus utilize it.
There can be no question but that this is the real way to regulate
the use of waters. Public knowledge of what is good in practice will
bring imitation and economy as an average outcome; public knowl-
edge of what is reprehensible and wasteful will bring condemnation,
and a reform of the wrong.
These are, in substance, the sentiments to be found in late French
state papers relating to irrigation, and with the expression of them, I
leave the subject of the progress of French governmental policy
towards the irrigation interest, for they are the evidence of the crown-
ing feature of a long line of intelligent actions of a government fully
awake to the best interests of its people.
SECTION II.
NOTABLE INSTANCES OF ENTERPRISE AND ENCOURAGEMENT.
In this section I present a series of abstracts of the laws authorizing,
and the decrees and agreements regulating the construction and
maintenance of the most notable canals of irrigation in France. It
will be seen that they are scattered in date over the period of the past
fifty years, and in character range the whole field indicated in the
preceding section.
The study of these measures, together with that connected with the
canal of the Bourne, of which a closer and systematic abstract has
already been given, will lead to an appreciation of the fact that irri-
gation is a subject for careful and thoughtful treatment at the hands
of the legislator.
THE CANAL DKS ALPINKS.*
In the year 1839 the concession for the northern branch of the
Alpines canal and its secondary ditches was offered for sale. The
concession was perpetual, and allowed five cubic metres of water per
second to be derived from the river Durance, in time of ordinary low-
water, in addition to the right formerly authorized on the portion of
the said branch already opened. The concessionary was authorized
to receive as his profit a rent from the irrigators which should not
-See, Royal ordinance of July 9, 1839. Les Annales des Fonts et Chaussecs, Vol. XVII, p.
289, et seg. "
150 FRENCH IRRIGATION LEGISLATION.
exceed a litre and a half of corn of the country of best quality for
each are (0.025 acres) of land irrigated, regardless of its nature.
The buyer could expropriate lands for the construction of the canal
and its branches, in accordance with the law; and the owners of lands
to be irrigated by the waters of the canal were freed from any increase
of landed taxes over that then paid on them, for twenty-five years
from the time fixed for the completion of the canal.
General plans had to be presented within one year from time of
sale; the works to be commenced within six months from the govern-
mental approbation of the project, and to be executed within six
years from, the final consummation of the sale. Forfeiture to be
incurred for failure to comply with either or both of the two last
mentioned conditions.
The landed tax was established on the canal for only the actual
ground occupied by it, rated as lands of the first quality. The portion
of water conceded which in the space of twelve years would not have
been employed in irrigation, was to return to the disposition of the
State, which could make it the object of a new concession.
The buyers were obliged to deposit, after the sale, in the treasury.
the sum of 50,000 francs ($10,000). This sum to be increased to
100,000 francs ($20,000) in the three months which follow the approval
of the sale. The said sum to be returned in fourths, in proportion to
the amounts of work executed, and in case of forfeiture, the portions
of the security not returned, to be confiscated by the treasury.
The enterprise was sold on the twentieth of June, 1839, to three
individuals, as agents for the "General Drainage Company," with an
abatement of two thirds per cent; that is, the annual rent was to be
one litre forty-nine centilitres of corn for each are (equivalent to ~>l
quarts per acre) of land irrigated.
CAN \l, OK CAKl'KNTIIAS.
The government was authorized to concede six cubic metres ('212
cub. feet) of water per second to be taken from the river Durance and
used in the irrigation of lands belonging to the communities of Sau-
mannes, 1'Isle, and others. The water could, however, be cut off from
the canal by order of the prefect whenever such measure was deemed
necessary either for the interest of navigation or for the protection of
the interests of those who had previous claims to the water.
The enterprise was declared of public utility and the canal only
taxed for the actual ground occupied by it, classified as of first quality.
The lands to be irrigated from the canal were not to have their taxes
3, Royal order of July 9, 1852, Lcs AHHH/CX </e* Ponts et Chaussees, Vol. X
seq.
NOTABLE IRRIGATION ENTERPRISES. 151
raised over the assessment at that time, for twenty-five years from the
date of the completion of the canal.
CANAL OK CADEN'ETV
This concession was made to a number of irrigating proprietors
forming a syndical association, and consisted in permission to derive
three cubic metres of water from the river Durance, and authority
to contract loans to be first approved of by government or by the
prefect, provided the debt of the. syndicate did not exceed 50,000
francs ($10,000) at the time the loan was asked for.
This syndical association was called the " Society of the canal of
Oadenet," with the object of irrigating certain lands belonging to
the subscribers thereto, but as there were many persons and commu-
nities whose lands could be irrigated by this canal, but who did not
subscribe, this decree provided that these parties could join the society
either during or after its construction on the same terms as the original
founders.
The society was administered by a syndicate composed of seven
members to be named by the prefect. One of the members was also
named by the prefect to fill the place of director of this syndicate, and
attend to the business in connection with the construction, mainte-
nance, and operation of the canal.
The enterprise was declared of public utility, but did not receive
any assistance from the government, either in the shape of subsidy or
remission of taxes. On the contrary, it seems to have been burdened
with conditions of which the following are the most important:
1. Four tenths of a cubic metre of water, per second, had to be re-
turned into the Durance by the escape canal of Pertuis.
2. The waters of the canal not utilized for irrigation had to be
returned into the Durance at a specified point thereon.
3. It had to carry out all its works in conformity with the direction
•of engineers appointed by government, but paid by the society itself.
THE CANAL OK ST. MARTERY.^
The canal of Saint Martery, under a lawr, agreement, and schedule,
passed and ratified in 1866, was conceded to three individuals, repre-
senting a company of English capitalists, called the General irriga-
tion and water supply company of France, for a period of fifty years,
and thereafter to belong in perpetuity to the department of the Upper
Garonne, wherein it is situated.
*See, Royal decree of November 18, 1854, Le* Annalex des Fonts et Chaussees, Vol. LVI,p. 179.
2 See, Les Annales des Ponts et Chaussees, Vol. LXXXVII1, p. 162. et aeq.\ Law of May 16.
1866.
152 FRENCH IRRIGATION LEGISLATION.
The canal and all its secondary and distributing works were to be
built by the company, at its sole expense and risk, and managed and
maintained by it during the term of the concession, and thereafter
by the department.
The general government granted a subsidy of 3,000,000 francs to the
work, to be paid in tenth parts, in proportion to the advancement
of the principal canal, but depending on the resources available to
the administration from time to time for such purposes. The pay-
ments were to be made on the certificates of the engineers, to the
effect that a greater sum had been expended on the works, etc., since
the last payment than the amount of the installment demanded. A
reserve of 500,000 francs was to be made from the two last install-
ments, of which 300,000 francs were to be paid over upon the final
approval of the main canal, and 200,000 after the final approval of the
secondary canals, which final approvals were to be one year after the
claim of completion and the provisional reception of the works.
Complete final plans for the main work were to be submitted to the
administration for approval, and the works to be commenced, under
pain of forfeiture of rights and guarantees, within one year of the date
of the concession; the main canal to be finished within five years,
and the secondary canals within two years after approval of locations;
and the company was required to deposit the sum of 150,000 francs as
security for the faithful performance of its engagement.
To assist the company's credit for the securing of capital necessary
for the construction of the works and the other purposes of the enter-
prise, the department of the Upper Garonne was authorized to and
engaged to contract, upon the demand of the company and for its
benefit, with the Credit Fonder of France, under a law authorizing
such negotiations, one or more loans to the maximum amount of
4,000,000 francs. These loans were to be contracted upon the basis of
the company's assured income from subscribed water rents, after the
works were completed to deliver the water, and the collecting and
management of the income was to be assigned to the department for
that purpose, provision being made for maintenance and operation of
works, the company at the same time pledging its faith and credit in
the protection of the department from loss or embarrassment on
account of the loans. The estimated irrigable area was 14,000 hec-
tares— about 34,600 acres.
Subscriptions for the use of water were required to he made for
fifty-year periods; the right of irrigation belonging to the land sub-
scribed for, and going with it, no matter into whose hands it passes, not
being transferable to other lands by the owner, and not forfeitable by
NOTABLE IRRIGATION ENTERPRISES. 153
the original lands after the expiration of the fifty years except by the
owner's consent.
The quantity of water to be furnished for irrigation was fixed at
three fourths of a litre per second per hectare (equivalent to a duty
of 93.25 acres per cubic foot per second); and provision was made
for a rebate on the rents in case of an insufficiency of supply for any
term of more than thirty days duration during the six months ofihe
irrigation season.
The price of water for irrigation was fixed at 25 francs per hectare
($1 92 per acre) per year, for all subscriptions made during the first
two months of the examination of the project, at 35 francs ($2 69 per
acre) for subscriptions made after that time and before the promul-
gation of the schedule, and 50 francs ($3 84 per acre) for all subscrip-
tions made thereafter.
It was stipulated that sale by the quantity of water might be sub-
stituted for sale by the surface of land irrigated, and the substitution
was to be made of the prices named above, for the half litre of water
per second, with the provisions that water thus taken should be used
only on contiguous tracts, that all of the lands should be pledged for
the payment of the water rent, and that no subscription would be
received for less than a half litre per second.
The company was also bound to lend to each and every land owner
who subscribed for water, a sum equal to one hundred francs per
hectare ($7 69 per acre) subscribed for, to be used by him in the prep-
aration of his land for irrigation. This sum to be advanced in two
parts, the first half on demand, and the second half three months after
the first irrigation on lands prepared with the first half, and where it
shall have been shown that the advance has been judiciously ex-
pended. The sums thus advanced were to be repaid in installments
which, with interest, amounted to 6.25 per cent per annum for the
fifty years, on the amount borrowed.
THE CANAL OP SIAGNE.*
A similar concession was made in 1866, also to the English com-
pany, for the canal of the Siagne and Loup, in the department of the
Maritime Alps, under very similar conditions and for a like period
to that governing the case of the Saint Martery.
In this instance the town of Cannes was to be supplied with water
for domestic purposes, as well as the surrounding country to be irri-
gated, and it was made the co-grantee, to own the works in perpetuity,
after the first fifty years when owned by the company.
* See, law of August 25, 1866, Les Annales des Ponts et Chaussees, Vol. LXXXVIII, p. 385,
et seq.
154 FRENCH IRRIGATION LEGISLATION.
The general government granted a concession of 500,000 francs
($100,000), and the town was to loan its credit to raise money for use
on the works by the company, as in the case of the St. Martery, taking-
control of the revenue of the company from water rents as a basis
upon which to capitalize for a loan, and being in turn assured from
loss or embarrassment by the obligations of the company.
CANAL OK S
This concession was made to five individuals forming a society, for
fifty years, and afterwards in perpetuity to the department of Yar.
The society received a subvention of 30,000 francs ($6,000), and was
authorized to derive from the Siagnole three hundred litres (10.6 cub.
feet) of water per second, provided they at all times left at least a vol-
ume of water in the bed of the river such that the discharge might be
one hundred litres per second above the dam of the manufactories of
Mons.
The department was authorized to contract a loan, the interest of
which, with all expenses connected with it, should not exceed three
fourths of the amount of the rents of the canal, in order to aid the
society in the construction of the canal. The total amount of this
loan was not to exceed 90,000 francs ($18,000). The department was
to receive the rents from the irrigators, and, after paying the interest
and other expenses and installments of the principal, to hand the
balance over to the society each year, until the debt should be paid
off, when all the rents were to be paid to the society.
The works of the canal were declared to be of public utility; and
the landed tax to be only for the simple amount of land occupied by
the main canal and the secondary ditches, but the buildings and
warehouses of the society were subjected to the usual tax.
The principal canal and secondary canals had to be entirely fin-
ished, and put in operation in the space of two years, counting from
the decree of concession. The tertiary ditches, however, had only to
be undertaken when the subscriptions would amount to six per cent
of the expenses of their construction; but once begun, they had to be
finished in two years.
The society was authorized to collect rents at the rate of forty francs
per litre ($215 15 per cub. foot) per second for periodical waters of
irrigation. The privilege of subscribing for less than a litre was given
to the irrigators, but with the proviso, that for every quarter of a litre,
or less than that quantity, there should be paid a rent of fifteen francs
($3).
Decree of June 14, 1870. See, Les Annaks dey Fonts et Chnusaectt, Vol. CIII, p. 1206.
NOTABLE IRRIGATION ENTERPRISES. 155
The irrigating proprietors were obliged to give free right of way
under pain of not having the right to irrigate. Every proprietor who
subscribed for a volume of water of twenty litres per second could
have that quantity in a continuous stream by payment of the cor-
responding rent — this "water to be delivered to him separately by a
single gate. This same rule held good for a number of individuals,
clubbing together to receive their water jointly through a separate
gate.
The rents were to be fifty francs per litre ($268 95 per cub. foot) per
second, if they were not subscribed for until after the decree of the
concession, and the proprietors could free themselves from all rent
charges by paying the capital, fixed at eight hundred francs per litre
($4,303 12 per cub. foot), provided they declared their intention so to
do in the year following the decree of concession. Every time, how-
ever, the subscriber freed himself by depositing a capital, the society
was obliged to deposit in the landed bank of France a sum necessary
to constitute, by the accumulation of interest compounded for fifty
years, the rent to be paid during the forty-nine years following.
In case of reduction or remittance of the rents from insufficiency
of water, the year in which such reduction or remittance took place
was not to count as one of the fifty years granted by the concession.
The company had to deposit 3,000 francs ($600) as security before
the decree of concession was made, and this sum was to be restored
to them when the expenditure on the canal amounted to 20,000 francs
($4,000), as certified to by the engineer-in-chief and the prefect of the
department of Var.
The works of the canal were declared to be of public utility, and
forfeiture was to be incurred for failure to construct in the given time.
In this canal we have an instance of a direct subvention to a society
to assist in the construction of the canal, additional assistance in the
shape of a loan authorized to be raised by one of the departments,
and the transfer of the property, after fifty years, for the sole benefit
of a department; also remission of taxes on the enterprise, except for
buildings and land actually occupied.
THK CAXAL OF THE BOURNE.'
The rights, privileges, and benefits for the canal of 'the Bourne,
department of Drome, hereinbefore spoken of, were conceded in
1874, for a period of 99 years, to three individuals for the benefit of
a society or company, to be formed to carry out the project. The
*See, law of May 21, 1874, Lea Annales des Fonts et Chaussees, Vol. CXXVI, p. 451, et seq,;
also, De Passy, appendices 5 and 6.
156 FRENCH IRRIGATION LEGISLATION.
district comprised 22,000 hectares (54,340 acres) of which 10,500
hectares (25,935 acres) were reckoned as irrigable, and a volume of
7 cubic metres (247 cubic feet) of water per second was allowed for
the purpose of irrigation and other uses contemplated.
According to the terms of the law and agreement and schedule
annexed, the government allowed the company tin advance or
subsidy of 2,900,000 francs ($580,000), which amount was one third of
the estimated cost of the works inclusive of main, secondary, and
tertiary canals and structures.
This subsidy was not finally granted, however, until after the com-
pany or society had been formed and subscriptions for water been
secured to the extent of 3,000 litres per second at the rate of 50 francs
per litre.
And the subsidy or advance was to be paid in installments, on
completion of work in cost and value to the amount of three times
the sum paid in each instance, one tenth of the whole being held
back till the final completion of the work.
The company was to build all the works, and transfer them to the
state at the expiration of the term of the concession, in good order.
The secondary canals and their tertiary branches may each go
into the hands of a syndicate association of irrigators, for operation,
in the sub-district served by it, should the landholders choose thus to
organize and undertake the management.
The rate of water rents, for irrigation, was fixed at 50 francs per
litre of flow for those persons who subscribed before the opening of
the works, and 60 francs per litre for those who subscribed afterwards.
Supposing the entire volume of water conceded to be sold at the
minimum figure, the revenue of the company would be (7 cubic
metres=7,000 litres@50 francs) 350,000 francs per annum, which in
fifty years would yield a return of 17,500,000 francs/on the outlay to
the company, which was expected to amount to 5,800,000 francs —
being two thirds of the total estimated cost of the works, the govern-
ment advancing the other third.
CANAL OK THK KHONK.'
This concession was made to three individuals acting for and in
the name of a society then forming. The volume of water to be
derived from the Rhone was 2,500 litres (88.3 cub. feet) per second in
low-water. The concession to last for ninety-nine years, and the
society to receive from the government a subvention of 900,000 francs
*Decree of August 7, 1878. See, Annales des Ponts et Cha <>**<•<' *. Vol. CXLIII, j>. :>:\\.
NOTABLE IRRIGATION ENTERPRISES. 157
($180,000), provided the company could show subscriptions for at least
1,500 hectares (3,750 acres) of land to be irrigated.
The first installment was not to be paid until the society had
expended 800,000 francs ($160,000). The three first fourths of the sub-
vention to be devoted to the principal canal, the balance to be paid
to the society on the provisional reception of the canal by gov-
ernment, with the exception of one tenth, which was to be paid" afr-
its final reception.
All the expenses of construction, operation, and maintenance were
to be paid by the society, and it was to receive all incomes from the
canal during the term of the concession, at the expiration of which
the canal was to be returned to the state.
The society was authorized to contract one or more loans, the inter-
est and expenses in connection with which were not to exceed 15,000
francs ($3,000). The first loan not to exceed 800,000 francs ($160,000),
and no loan or issue of bonds to be made except with the authoriza-
tion of the minister of public works, and after the entire subscrip-
tion of the capital shares, and the employment in the works of four
fifths of this capital.
The society engaged to execute all the works of the principal canal,
secondary, and tertiary branches, as well as the works necessary to
deliver to and carry away from the property of every one desiring it,
the water for irrigation and domestic uses; to finish the main canal
and put it in operation within the space of five years from the date
of concession, and to complete all necessary canals within one year
of the time in which they were commenced.
The annual rent was fixed at 40 francs per hectare ($3 07 per acre)
for those who subscribed before the decree of concession, and 60 francs
per hectare ($4 61 per acre) for those subscribing afterwards. The
first subscribers had the privilege of afterwards augmenting their orig-
inal subscriptions by an equal amount at the rate of 40 francs per
hectare, but anything in excess of this amount had to be paid for at
60 francs per hectare; the right to the use of the water being in all
cases inherent to the land and not to the individual.
The society had to give a security of 60,000 francs ($12,000) in cash,
to be returned to them when they had expended on the works 200,-
000 francs ($40,000).
The works were declared to be of public utility.
The society agreed to pay to the state an annual rent of one franc,
and the state reserved the privilege of revising this once every ten
years.
In this concession we have an instance of direct assistance in the
158 FRENCH IRRIGATION LEGISLATION.
shape of a subsidy; the concession to last ninety-nine years, at the
end of which time the enterprise is to be handed over to the state.
The company was also authorized to contract one or more loans for
its use in the construction of the works.
C \X.\L »)!• VKSTBIE.*
This concession was given to the "General water company of
France," under the direction of the engineer-in-chief of bridges and
roads (the construction and management of these irrigation works
being thus measurably a public work of the state), for a period of
ninety-four years, and afterwards in perpetuity to the town of Nice.
The enterprise was declared to be of public utility, and the General
water company received a subvention from the state of 2,400,000
francs ($480,000).
The canal was to be taken from the river Vesubie, and so con-
structed as to carry at least four cubic metres (141.2 cub. feet) of water
per second at the head of the first secondary canal, this discharge
being fixed for the execution of the work, but not as a determinate
quantity of water which had to be derived by the company.
The company had to pay all expenses of construction as \\ell as all
indemnities for temporary occupation or deterioration of lands and
all damages resulting from the works.
All the expenses in connection with acquiring lands for the location
of headworks of the canal and its dependencies, for modification,
destruction, or stoppage of manufactories, for disturbances of users of
water, had to be supported one half by the company and one half by
the town of Nice, the company paying the town, however, 100,000
francs towards these expenses.
The indemnities due for the establishment of the tertiary canals
and the distribution ditches for water, or for obtaining the passage
of these waters over intermediate lands by right of simple servitude.
had to be paid by the proprietors interested, who had to give proper
titles for the same to the company.
The community of Nice granted to the company the lands which
were required for the establishment of the reservoirs and their
dependencies necessary for supplying the town with water, and the
gratuitous disposition of all the ways of communication belonging
to the community for the establishment of canals, ditches, conduits,
etc., so long as such use did not interfere with their usefulness a^
means of communication. It also agreed to pay to the company an
•annual rent of 80,000 francs ($16,000), representing the municipal
* Law of December 26, 1878. See, Lc* Annale-y des Fonts et Chaussecs, Vol. CXLIV, p. 13«.»7.
NOTABLE IRRIGATION ENTERPRISES. 159
subscription for a weekly delivery of 60,000 cubic metres of water.
It was, however, understood that when the gross income of the com-
pany should amount to 180,000 francs ($36,000), municipal subscrip-
tion included, any excess of income over this figure was to go towards
fhe reduction of the annuity of the town, so as to limit it to 60,000
francs.
The company received authority to collect rents from the user$~of
water, not in the town, as follows: For fifty centilitres, per second,
46 francs ($494 86 per cub. foot) per season of irrigation, for one litre,
per second, 80 francs ($430 31 per cub. foot).
There were no subscriptions received for periodical water for a less
amount than half a litre per second.
The buildings and storehouses of the canal and its dependencies
had to pay the usual taxes, but the enterprise was only taxed for the
actual amount of land occupied by it, reckoned as land of the first
quality.
We have in this canal an instance of the construction and manage-
ment of a canal largely at the expense of the state for ninety-four
years, and then the transfer of it for the sole benefit of a municipality
in perpetuity.
We have here, also, a remission of all taxes on the enterprise, except
for its buildings and the land actually occupied by it.
THE PIERBE-LATTE CANAL.*
A recent instance of an enterprise of considerable magnitude to
which the state made a large advance, and also guaranteed interest
in a large amount, is the case of the extension and enlargement of
the Pierre-latte canal, in the department of Vaucluse, the law for
which was passed in 1880, making the concession to certain individ-
uals for the benefit of a society to be formed to carry out the work.
The concession was for eight cubic metres (282.4 cubic feet) of water
per second from the Rhone, to irrigate about 20,000 hectares (49,400
acres) of land, and for a term of ninety-nine years.
The estimated cost of the work, including main, secondary, and
tertiary canals and works, was 8,000,000 francs, of which the State was
to advance 2,000,000 on the work, in installments in amounts not
exceeding one third the actual expenditure at any time according to
detailed engineering reports.
In addition to this, the state guaranteed to the concessionary soci-
ety undertaking to construct and manage the works, for a period of
fifty years, a revenue of 4.65 per cent per annum on the remaining
* See, law of August 2, 1880, Lex Annales des Fonts et Chaussecs, Vol. CLI, p. 21, et seq.
160 FRENCH IRRIGATION LEGISLATION.
6,000,000 of funds estimated to complete the work, and which the
society was to raise for its capital.
This advance and guarantee, however, were not made until a cer-
tain revenue had been assured by subscriptions for water by the
land-holding irrigators, so that the extent of government liability for
interest was limited to 167,000 francs per annum.
And in case the income from the canal grows to be more than
enough to produce the rate guaranteed by the state over and above
the cost of operation, etc., one half this net revenue is to go to the
state.
After the fifty years of the guarantee of interest, the state is to
receive during the balance of the period of concession an interest of
four per cent in return on the sum of the net amounts advanced by it
as interest.
At the end of the ninety-nine years of the concession, the canal and
all its dependencies are to become the property of the state.
The provisions with respect to the management and maintenance
of the secondary and branch canals by a syndicate of irrigators in
each case, were the same for this canal as for the canal of the Bourne.
THE CANALS MANOSQUE AND HKRADLT.
A late instance of the state loaning money for the construction of
irrigation works is the case of the Manosque canal, in the department
of the Lower Alps, sanctioned by law in 1881.*
The canal was to take two cubic metres of water per second from
the Durance river for irrigation.
The proprietors of lands to be irrigated were to engage to take
water to a certain amount at a fixed rate, and, for fifty years, and to
form themselves into a syndical association to manage the canal.
The state, thereupon, to advance all the money for the enterprise,
amounting to two million francs, and to receive in return, during the
period of fifty years, seventy per cent of the gross proceeds from water
rents, which it was estimated would repay the state with interest.
The following is another instance of both a subsidy and a guaran-
tee of interest on capital invested, brought into form by a law of 1882:
Canal of the Herault, department of the Herault, to take 3,500 litres
of water at low-water, and 5,000 at time of flood, from the Herault
river, for the irrigation and submersion of lands; to be built by a
syndicate of landholding irrigators, at an estimated cost of 6,300,000
francs.
The state was to give a subsidy equal to one third of the total cost
* Law of July 7, 1881.
NOTABLE IRRIGATION ENTERPRISES. 161
of the works, and to guarantee interest for fifty years at the rate of
4.65 per cent on 4,200,000 francs, the balance of money to be raised.
This guarantee could only take effect after subscriptions had been
made for water for 2,000 hectares of lands, at rates about fifty francs
per litre.*
OTHER LATK WORKS.
In other instances the state has constructed irrigation works, and
either turned them over to the landholders to manage, or reserved
them for management as public works of the state.
An instance of the first above mentioned class of action, for which
the law was passed in 1881, is that of the Canal Ventavon, in the de-
partments of the Upper and the Lower Alps, and taking water from
the Durance river.
The state granted the associated irrigators a water-right of 2,500
litres of water per second, on a nominal payment of one franc per
annum, and then undertook to construct the main canal necessary to
deliver the water, at a cost not to exceed 1,733,000 francs, estimated
to be two thirds the total cost of the whole works, and to turn it over
to the associated irrigators, for use forever, when they had built the
necessary secondary canals and smaller ditches for distributing the
water.§
Another instance of this kind of action on the part of the govern-
ment is that of the canal de Petite- Vence, Department of Isere,
taking water from the government canal Koize, and built for the
irrigation and submerging of lands, at an estimated cost of 81,000
francs, of which the government was to expend two thirds on the
main works, and the associated irrigators one third on the secondary
canals and other works, the association to manage the canal forever.
Of irrigation canals, constructed on government account as public
works, the following are of late dates:
Canal of the Malpas, department of Herault, taking water from the
navigation canal of Midi, for the submersion of two hundred and
ninety-six hectares, to be built by the state, at an estimated cost of
86,000 francs.f
Canal of Saint Marcel, department of Aude, taking water from the
canal of Midi, for the submersion of three hundred and eighty-five
hectares, to be executed by the state, at an estimated cost of 130,000
francs.
* See, law of July 13, 1882. Les Annales des Fonts et Chaussees, Vol. CLVIII, p. 1298.
# See, law of July 20, 1881. Les Annales des Fonts et Chaussees, Vol. CLVII, p. 5.
f See, law of March 3, 1881. Les Annals des Fonts et Chaussees, Vol. CLII, p. 1263.
11"
162 FRENCH IRRIGATION LEGISLATION.
Canal of A rgeliers, department of Aude, taking water from the canal
of Midi, for the submersion of one hundred and five hectares of land,
to be executed by the state, at an estimated expense of 80,000 francs.*
Canal of the Raounel, department of Aude, taking water from the
canal de la Robine, and intended for the submersion of five hundred
and three hectares of land, executed by the state, at an estimated cost
of 320,000 francs.§
# See, law of August 17, 1881. Les Annales des Fonts et Chaussees, Vol. CLVII, p. .r>7M.
g See, law of September 22, 18SO. Les Annales des Fonts et Chaussees, Vol. CL, p. 1 1 S.
AUTHORITIES FOR CHAPTER VIII.
In the preparation of this chapter I have consulted the following named authorities :
Dumont. — [Work cited as an authority for Chapter II (French).] See, Book II, <'hap. VI, pp.
280-330.
De Passy.— [Work cited us an authority for Chapter II (French).] See, Chapter I, pp. 79-130.
Barral. — [Works cited as authorities for Chapter VII (French).] See, Chapters I and II of each
volume, the descriptions of the several canals in other chapters, and the chapters
relating to syndicate associations, canal companies, land proprietorship, and popula-
tion.
Les Annales des Fonts et Chaussees. — [Work cited as an authority for Chapter III 'French).]
See, Vol. XVII, p. 289 et seq.; Vol. XL VIII, p. 523 et seq.; Vol. L XXX VI II. p. 162
et seq.; Vol. LXXXVIII, p. 385 et seq.; Vol. CIII, p, 1206 et sc<,. ; Vol. CXXVI, p.
451 et seq. ; Vol. CXLIII, p. 531 et seq.; Vol, CXLIV, p. 1397 et seq. ; Vol. CLI, p. 21
etseq.; Vol. CLVIII, p. 1298 et seq.; Vol. CLVII, p. 5 et seq. : Vol. CLII, p. 1263 et
seq.; Vol. CL, p. 48 etseq.; Vol. CLVII, p. 573 etseq.,' and elsewhere in the publi-
cation.
IRRIGATION LEGISLATION AND ADMINISTRATION.
ITALY.
CHAPTER IX.— ITALY(1);
EIGHT OF PROPERTY IN AND CONTROL OF WATER-COURSES AND WATER
SOURCES.
INTRODUCTION. — Importance of the study of irrigation experience in Northern Italy.
SECTION I. — Ownership and Control of Water-courses and Waters.
Basis of property rights in water-courses in Northern Italy.
Ownership: Lombardy; Piedmont. All Italy.
Control: Lombardy; Piedmont. All Italy.
SECTION II. — Ownership and Control of Springs.
Right of Property in Springs.
Acquired rights to the use of Spring Waters.
Regulation of the opening and use of Springs.
SECTION III.— The Riparian Eight.
In Piedmont, under the Sardinian Code.
In all Italy, under the Italian Code.
General remarks.
INTRODUCTION.
IRRIGATION IN NORTHERN ITALY.
The valley of the Po, in Northern Italy, is very generally regarded,
and popularly spoken of, as the classic land of irrigation ; and, indeed,
if there is a region worthy of the name, these plains of Piedmont,
Lombardy, and Venetia are deserving of it.
This valley is about two hundred miles in length, and varies from
thirty to sixty in width, being bounded on the north by the Alps, and
on the south by the Apennine range of mountains. Throughout its
length, and keeping nearest the foot of the southern range, runs the
Po, from west to east, a large river; while entering it, and joining this
main drainage way, from the bordering mountain regions, are thirty
or more other streams, of varied sizes and character; of which at least
half a dozen are great irrigation feeders; and twice as many more
contribute notably to the water-supply used in agriculture.
The valley is like our own of the Sacramento in size, and form, and
disposition of water-ways, but is much better supplied with streams,
166 ITALIAN IRRIGATION LEGISLATION.
and receives, on the average, about seventy-five to one hundred per
cent more rainfall.
Irrigation was probably commenced by the Romans in this region,
but the greater works of the country date since the tenth century;
most of them were built after the fourteenth and before the beginning
of the present century; while several notable ones, and the one of
chief importance, have been constructed during the present genera-
tion. These works are constructed in the most substantial manner,
with stone reveted banks in many places, and with masonry head-
works, bridges, outlets, sluiceways, overfalls, syphons, and other struc-
tures. The volumes of water handled far exceed any conducted and
distributed in this country, and the practice of irrigation is very
much more refined in its details, than is our practice except in some
notable instances.
The customs of the people of this region have crystallized into laws
and regulations covering the whole range of points and subjects met
with in the development of irrigation works and practice, so that we
have here a rich mine of data in which we may find principles, and
trace the working and results of principles, applicable to, and to be
heeded in the formulation of the irrigation code of the future for
California.
This development came to a point of completeness worthy of special
attention, in the States of Lombardy and Piedmont, particularly, before
the recent unification of the government of all Italy. So that I shall
first trace as fully as necessary the systems of the Lombards and
Piedmontese, and then present the law of all Italy, as it now exists,
on the important points of our inquiry.
SECTION I.
OWNERSHIP AND CONTROL OF WATER-< '< >URSKS AND WATERS.
BASIS OP PROPERTY RIGHTS IX WATK.H-COUKSKS IX XOKTHKRX ITALY.*
For five centuries after the fall of the Roman empire of the west>
the people of the Italian peninsula were tormented by successive
invasions of barbaric tribes from different quarters. It becoming
apparent that the ruling families of sovereigns of the various
kingdoms, could not protect their subjects from pillage, the people
concluded to protect themselves, and hence grew the spirit of hide-
* See, Sismondi, Smith, and De Buffon.
OWNERSHIP AND CONTROL OF WATER-COURSES. 167
pendence upon which was formed the Italian republics of the middle
ages.
Thus, during the tenth century the residents of the principal cities
with the surrounding country, each organized an independent state
with a representative form of government, and elected administrative
officers. Forming leagues or confederacies at later dates, these states
became republics, several of which, particularly on the seacoastund
in the south of Italy, retained their independent existence with some
vicissitudes of fortune, as late as the present century; but those in the
north of Italy — the upper part of the valley of the Po, the quarter
where irrigation has developed to the greatest extent — soon gave way
to pressure of invasion from without, and to the machinations of local
magnates, and the feudal system here made rapid progress to full
development.
RISE AND FALL OF THE FEUDAL SYSTEM.
In northern Italy the independence of the feudal lords was most
complete, and the hereditary principle was recognized not only as
relating to the possession of local governing power, but to the posses-
sion and ownership of land. The counts took every means to oppress
the allodial land proprietors who held titles from former rulers or
under preceding forms of law. From such persistent and covert
persecution, even the authority of the kings was often powerless to
afford protection. Many private individuals voluntarily surrendered
their allodial titles and consented to hold their property as the vassals
of the counts, in order to get protection from the local potentate.
Thus it came to pass that the feudal system of land tenure was estab-
lished— none but persons of noble birth could hold .property in their
own right ; all others held it as vassals of the dukes, counts, marquises,
margraves, etc., and the land was known as thefeif of the ruler.
The waters of all streams, which under senatorial and imperial
Rome had been the common property of all the people, and the riv-
ers, which had been the property of the sovereign power or nation,
and which during the barbarian rule became the property of the
rulers themselves, and then of the kings who followed them, and
later of the people of the republics, now became the property of the
local feudal lords.
The Roman laws had been lost to the people, and all records of
them were at one time thought to have been destroyed ; but among
the unwritten laws of the country — in the customary law of the peo-
ple, with respect to the management and distribution of waters in
irrigation — were to be traced the influence of those principles which
we find to have existed in the Roman system.
168 ITALIAN IRRIGATION LEGISLATION.
Documents of the tenth and eleventh centuries, recording and for-
mulating previous practice, bear witness that "the principles of the
Roman law in matters connected with the use of waters had never
been wholly lost sight of, but, embodied in the traditions of the peo-
ple, had continued in unwritten form to influence the development
of agriculture. * * * The irruption of the barbarians brought
into Northern Italy Germanic rights and the feudal laws. All the
rights appertaining to the public centered in the feudal lord of a
commune, a province, or a kingdom, becoming his absolute property.
* * * It was not for purposes of police that the feudal superiors
exercised all the rights of masters over the water-courses, but that
their right of absolute property necessarily absorbed everything pre-
viously held to belong to the community. There existed, in fact,
merely the relations of masters and subjects." — [Smith, Vol. II, p.
124; quoting Giovanetti.
"At the peace of Constance, in 1183, the Italian towns of the Lom-
bard League recovered all the rights previously vested in the feudal
superiors, and from that time the rivers have been held to be public
property. These rights were then vested in the cities themselves,
which each exercised authority over a certain extent of adjoining
territory."— [Idem, Vol. II, p. 134.
FROM THK KARMKST TO THK PRKSKNT LAW.
The earliest recorded laws of northern Italy date from the tenth
century, when Otho the Great, emperor of. Germany, granted the cities
of Lombardy the right to live according to their ancient laws and
local customs, which included their customs and regulations regard-
ing irrigation.
A code of the republic of Milan, dated in the early part of the thir-
teenth century, contains an extended series of provisions regulating
the use of water in irrigation, the right of way to conduct it in canals,
and the privilege of diverting it from streams.
The laws of the republic of Venice, dated in 1455, recognize the
ownership of running waters as being in the government as ivpiv-
senting the whole people, forbid the diversion of water from the
streams without "the requisite authority from competent magis-
trates," and provide that the waters may be used "by every inhab-
itant of the territory of Verona" "for the irrigation of his property,"
after obtaining the requisite authority and " under the condition that
he inflicts no injury on parties possessing older rights to the same
waters."— [Smith, Vol. II, p. 121.
When the monarchic element was introduced, there were constant
struggles between the royal governments and municipalities on the
question of the right to the running waters.
The result of these struggles was a recognition 011 the part of the
governments of certain water-rights already utilized, but the suc-
cessful assertion of ownership by them of all other waters. So that,
OWNERSHIP AND CONTROL OP WATER-COURSES. 169
to quote again the author above referred to: "In Northern Italy the
waters of all streams, whether navigable or non-navigable, appertain
to the royal or public domain."
OWNERSHIP: LOMBARDY, PIEDMONT — ALL ITALY.*"
During a large part of the present century, and until 1865, the val-
ley of the Po was under several separate governments, so that even
the general laws were not uniform for all of this irrigation region,
until a very recent date, and even yet regulations established by some
of the local governments are still in force in the states for which
they were promulgated.
In what will hereafter be said, reference will be made to the laws
of Piedmont and to those of Lombardy, as they existed a few years
ago, and until the merging of the governments into that of the king-
dom of Italy, and then, for each heading, the provisions of the general
civil code of Italy, known as the Code of Victor Emmanuel, and
promulgated in 1865, will be given.
Lombardy. — That which was said in the final paragraph of the pre-
ceding section, had reference more particularly to Lombardy or the
Lombardo- Venetian Kingdom, and as it existed under Austrian
dominance.
The old established claim of the cities, communes, and associa-
tions of proprietors, and of noble individuals, to the supplies of water
which they had for long periods of time actually utilized, having
been recognized, the government asserted and maintained its owner-
ship to all natural streams whether navigable or not.
Diversions of water under the old claims were subjected to govern-
ment regulation, and no new diversions could be made, or new work
built in the stream beds without special government authorization.
But when the government had come into full control of the streams,
so many claims to their waters had grown up, that the propertyship
of the state was almost a barren one, and it found itself heir to a
struggle for the control of rights unregulated with respect to the
public, and unadjusted amongst themselves.
Piedmont. — In the kingdom of Piedmont, also, the right of prop-
erty in all running water was reserved to the state. This reservation
applied not merely to the larger class of rivers, but also to the streams
and torrents, the waters of which could only be used under specific
grants from the government.
*See, Smith, Vol. II, Part IV, pp. 116 to 146, 248 to 263. The Sardinian Codes, JINM tin-
Italian Civil Code.
170 ITALIAN IRRIGATION LEGISLATION.
A royal ordinance concerning the use of waters, and dated in 1817..
commences with the following articles:
" I. All the rivers and torrents in the state are royalties, and by
consequence they appertain to the royal domain.
"II. No one can establish channels or canals for the introduction
of water into his property, either for the use of mills or other struct-
ures, unless he possesses a legitimate title to the same, or has obtained
a royal grant."— [Smith, Vol. II, p. 248.
At a later date (1828) a royal instruction to the intendants of prov-
inces, concerning the regulation of water-courses, commenced as
follows:
"All the rivers and torrents in the state are rcyali, and belong in
consequence to the royal domain.
"Hence, therefore, the sovereign permission is necessary before the
waters can be used in any way whatever, either in agriculture or
industry."— [Smith, Vol. II, p. 249.
The civil code of Charles Albert, of the kingdom of Sardinia,
published in 1837, was to a very great extent a following of the Code
Napoleon of the French, but in the matter of ownership of running
waters, and water-courses, the preceding laws of the Lombardian
kingdom are confirmed by Art. 420, as follows:
"The * * * rivers and torrents * * and generally all
those portions of the territory of the state which cannot become
private property, are considered as dependencies of the royal
domain." * * The alienation or grant of such property as is
specified in this article is subject to special rules, etc.
These rules were practically the same as others which preceded
them, and made necessary the acquirement of special permits or
concessions from government before water might In diverted from
the streams for any purpose, except under the old established rights.
Of the principle here involved M. Giovanetti says: "We, in North-
ern Italy, have been judicious in ranking among the things apper-
taining to the royal or public domain, the waters of all rivers and
streams, whether navigable or non-navigable. In this respect Art.
420 of our (the Sardinian) civil code is the reverse of Art. 538 of the
Code Napoleon, which regards navigable rivers only as those belong-
ing exclusively to the state."
The Kingdom of Italy. — After all Italy had been brought under one
government, in 1865, was promulgated the civil code of Victor Em-
manuel, of which Art. 427 is as follows:
"The national roads, the shore of the sea, the harbors, bays, coasts,
rivers and torrents, the gates, the walls, the ditches, the bastions of
forts and fortifications, form part of the public domain."
OWNERSHIP AND CONTROL OF WATER-COURSES. 171
This provision of the code of 1865 is the law, of Italy to this day,
and under it all running waters, except those of very small streams,
indeed, are claimed as the property of the government representing
the people as a nation, and they are administered very much as are
the waters of the navigable streams of the public domain of France.
Navigability, or only floatability for timber even, would not be a
safe test for streams of great economical and public importarrce-in
Northern Italy, for the river beds are of such excessive slope and
roughness, even where the volume of water is considerable and used
by means of great works for irrigation, that navigation would be out
of the question, except at very great expense for works of improve-
ment. Although the rivers have been improved for navigation to
some extent, works of this class have not been nearly so extensively
prosecuted as in France: so that the streams at the heads of irrigation
canals, although larger in point of volume of water than are the irri-
gation rivers of France generally, are frequently not navigated or
even used regularly for the floating of timber.
We see, from these physical circumstances, an apparent underlying
reason for the different definition of the public streams in Italy from
that adopted in France. Navigability itself was a ruling considera-
tion in France, while volume of water for irrigation was the point of
importance which made the stream one of public utility in Northern
Italy.
The codes of Charles Albert and of Victor Emmanuel say that
" rivers and torrents " are dependencies on the public domain; and
as a matter of fact, in Northern Italy every stream of perennial vol-
ume, other than very small streamlets, is regarded as a river (fieume) ;
and every stream of intermittent flow from the rainfall or melting of
snows, except the smallest, is regarded as a torrent (torrente). Thus,
it is only streams and ravines quite insignificant in size that are
ranked as other than part of the public domain, and these are because
the government has not chosen to extend the application of the words
"river" and "torrent" to them to meet the requirements of the law
in their cases.
GOVERNMENT CONTROL OP WATER-COURSES.
Under this heading will be given without further comment or
remark, for the present, a number of extracts from various acts, laws,
etc., showing the extent and nature of the control and management
of water-courses which the recent governments of Piedmont and of
Loinbardy, and the present one of all Italy, have established or con-
tinued in force.
172 ITALIAN IRRIGATION LEGISLATION.
REGULATIONS IN PIKDMONT.
The first abstract is that of the General Regulations for Water- Courses
in Piedmont, which were promulgated in 1817, and remained in force
for some years at least, after the unification of the government of
Italy, indeed if changed at all it is but quite recently.
And the second abstract containing some articles of the Sardinian
penal code, applicable in Piedmont, and providing for the punish-
ment of those who offend against government regulations and the laws
respecting water-courses, and irrigation and drainage works.
( 1 ) General Regulations for Water- Courses in Piedmont.
"All proprietors, possessors, or employers of canals, supplied by
rivers and torrents, are forbidden to execute any works in the beds of
the latter without the sanction of the authorities, under penalty of a
fine not less than 10, and not greater than 100 lire (from about $2 to
$20), in addition to the expense of replacing things in their original
state, and of compensation for any damages which may have been
caused to other parties.
"Proprietors, possessors, or employers of canals obtaining their sup-
plies by means of fixed dams, are bound to maintain the positions
and forms of these unaltered, to avoid raising their sills, or extending
them farther across the beds of the rivers.
"When the supplies are obtained by means of temporary dams,
made so as to be easily removed in times of flood, it is forbidden to
render such works permanent, or to reconstruct them with heights,
or in positions different to those previously in use.
" It is forbidden to proprietors, etc., of canals supplied either by
permanent or temporary dams, to make any excavations in the beds
of the rivers, whereby the supply would be unfairly augmented.
" Parties violating the foregoing provisions shall be bound to restore
things to their former state, and shall, in addition, be subject to a fine
not less than 100, or greater than 300 lire (from $20 to $60) for each
offense.
"When changes in the condition of the streams may render alter-
ations of dams or additional channels of supply necessary, the sanc-
tion of the superior authorities must be applied for. In such case-
the claimant must lay before the intendant of his province a regular
plan of the proposed works, prepared by a hydraulic engineer, and
showing the part of the river and adjacent lands which will he
affected by them, as also the different levels of the same.
" The intendant must visit the spot, or ascertain, through the agency
of the government engineer of the province, that no injury to any
one will result from the executions of the proposed works. All par-
ties in the same, or in other provinces or districts, whose interests
may be affected by the works, are to be heard for or against them, as
may be.
" When, from unforeseen causes, want of water may arise, the pro-
prietors, etc., of canals are authorized, in the event of urgency, to
take measures to obviate the same, reporting their proceedings to the
intendant of the province, who will cause the works to be inspected;
and if they are found to be irregularly constructed, or likely to cause
GOVERNMENT REGULATIONS FOR WATER-COURSES. 173
injury to others, will have them removed or altered as may he expe-
dient.
"When changes in the course of the streams render works neces-
sary, the matter shall be referred to the agency-general of finance:
and the intendant-general, having obtained the opinion of the perma-
nent commission (of engineers), will order the necessary proceedings.
" The proprietors, etc., of canals are bound to maintain all the works
in an efficient state, and are personally responsible for any damages
to others arising from their neglect.
"They are also bound to provide for the free escape of surplus
water in time of flood, under penalty of a fine varying from 10 to 100
lire, in addition to giving compensation for damages.
" Siphons for the passage of waters belonging to private parties
beneath the beds of streams, shall be maintained unaltered by their
proprietors; and they are forbidden to execute any works connected
with them, which might contract the sections or raise the beds of the
rivers, under pain of a fine not less than 30 or greater than 150 lire, in
addition to the expense of restoring things to their original state.
"Other articles prescribe conditions to proprietors of siphons under
streams, binding them to permit these to be altered, as the govern-
ment engineer may consider necessary, with reference to the protec-
tion of the public rivers."— [Smith, Vol. II, pp. 304 to 307.
(2) Provisions of the Sardinian Penal Code — Applicable to Water- Courses, etc., in Piedmont.
"ARTICLE 711. Whoever shall have voluntarily destroyed, cut, or
broken through the dikes or embankments constructed for defense
against the rivers, streams, or torrents, and shall have caused thereby
an inundation in which one person has perished, shall be punished
by death. If, however, this person has perished under circumstances
which the offender could not possibly foresee, the punishment shall
be that of hard labor for life.
"In eyery other case, the punishment shall be forced labor for cer-
tain periods, or, in lieu thereof, solitary confinement for seven years
at least.
"ART. 712. If the destruction or rupture of the dikes and embank-
ments, or like works alluded to above, shall be attributable to a sim-
ple fault, the punishment shall be that of imprisonment.
"ART. 713. As regards other breaches or injuries done or caused
to dikes, embankments, bridges, hydraulic buildings, or other works
of art, including such as belong to private parties, the punishment
shall be that of solitary confinement. The tribunals may, however,
in consideration of the circumstances and the nature of the injuries,
substitute for the preceding, simple imprisonment.
******* * * * * *
"ART. 718. Every individual who, without right or by means
other than those above indicated, shall voluntarily cause waste, dam-
age, or deterioration on the lands of others, whether by leveling or
filling up ditches or canals, shall be subject to the penalties specified
below:
" If the damage done shall exceed the value of 100 lire (about $20),
the punishment shall be three months' imprisonment at least.
" If it does not exceed this value, the punishment shall also be
imprisonment, of which the period may be extended to six months.
" In the two cases referred to above, the tribunals may add to the
174 ITALIAN IRRIGATION LEGISLATION.
imprisonment a fine, which shall in no case be less than one half, or
greater than twice the amount of damage done.
^c*^c>H****** * *
"ART. 723. He who, without title, and without right, shall take
water, or cause it to be taken from any reservoir, or from rivers,
streams, torrents, rivulets, springs, canals, or water-courses, and shall
appropriate it to any use whatever;
"He who, to the same end, shall break, or cause to be broken, the
dikes, dams, sluices, or other like works, existing along the rivers,
streams, torrents, rivulets, springs, canals, or water-courses;
"He who shall hinder, in any way, the exercise of rights which
other parties may have acquired to the said waters;
"Finally, he who shall usurp any right whatever on the sources
of water referred to above, or shall trouble any one in the enjoyment
of the legitimate possession he may have acquired;
"Shall be punished by imprisonment, the period of which may
extent one year; and by fine, the amount of which may be carried to
500 lire (nearly $100). The tribunals have the power of inflicting
separately one or other of these punishments.
" ART. 724. If individuals possessing a right to obtain or use water,
fraudulently cause their outlets, dams, or channels, to be constructed
in forms different to those agreed upon, or having capacities of supply
greater than those to which they have right, they shall be punished
as guilty of abstraction of water.
" ART. 725. The proprietors, farmers, or other employers, who, in
using their legitimately acquired rights to water, shall cause it to
overflow the roads or lands belonging to others, shall be punished by
a fine, which shall not exceed one fourth of the amount of the damage
done.
"ART. 726. If the crimes contemplated in the present chapter
shall be committed by the guardians of woods and waters, or by any
other public agents, whose duty it is to check or prevent them, the
punishment of imprisonment, when inflicted, shall exceed by one
month, at least, and at most, by one third of its duration, the heaviest
penalty inflicted on individuals not public agents, who may have
been guilty of the same crime, provided always that the maximum
of punishment fixed for the saicl crime shall not be exceeded."
BKGULATIONf
The following abstracts are of regulations provided over a century
ago for rivers and districts in Lombardy, and which were in force
until quite recently, if, indeed, they are not so at the present time,
with the addition, only, of a more complete administrative establish-
ment for their enforcement.
These are regulations specially applicable to the river Lambro, the
one dated in 1756 and the other in 1782, and both of them being
republished under government direction in 1832:
(1) Special Regulation for the River Lambro. (1756.)
" The numerous disorders which exist along the entire course of the
river Lambro, from its origin in the Lakes of Alserio and Pusiano, to
GOVERNMENT REGULATIONS FOR WATER-COURSES. 175
its junction with the Po, having attracted the attention of the magis-
tracy of the state of Milan, in consequence of the inconveniences and
injuries at once to the royal treasury, and to public and private in-
terests, which they have caused, most especially in the deficiency of
water so frequently occurring, and traceable to them, and particu-
larly as affecting the supply of the canal Martesana.
"The said magistracy, with the view of remedying such incon-
veniences, has judged it expedient, leaving in full force all former
proclamations, especially such as affect the royalties of the waters-, 4o
publish the present edict.
" Whereby, in the first place, it is forbidden to every person, of
every grade or condition', without exception, to divert the water of
the river Lambro from its proper course. No one shall employ it for
the irrigation of arable land or meadows, without the appropriate per-
mission, and license by privilege or royal grant, under a penalty of
three hundred crowns, of which two thirds shall belong to the royal
treasury, and the remaining third to the guards of the river appointed
for its protection, whose testimony, with that of one credible witness,
shall be sufficient to warrant proceedings against offenders.
" All parties enjoying the use of water from the Lambro are warned
against taking more than is secured to them by their respective rights,
privileges, and grants, on pain of being proceeded against, not only
for damages to the extent of the value of the water improperly taken
in time past, but to entire deprivation of the water, and other penal-
ties described in this edict; their outlets shall be closed, and the
evidence of the guards, or any other parties reporting the offense,
supported by a single witness, shall be deemed sufficient for convic-
tion.
" It is forbidden to millers, or other parties possessing mills on the
river Lambro, to retain or check the water in any way or under any
pretext whatsoever. When the mills are not at work, the escapes shall
be left open during the entire period of stoppage. Such mills as do
not possess proper escapes, shall be provided with the same within
eight days after the publication of the present edict, so that the water
may flow freely into the bed of the river. These provisions shall be
observed, under a penalty of one hundred crowns, to be applied as
above described.
" Whoever, possessing the right to establish outlets or channels for
the extraction of water from the Lambro, may have allowed the same
to have become broken or out of repair, shall be bound to place them
in good condition within one month after the publication of this edict,
under the appropriate license of the magistracy, who will determine,
according to the circumstances of each case, whether an inspection
by the engineer or other official of the tribunal be necessary, or simply
the assistance of the guard. If the repairs are not executed within
the time specified, they shall be immediately afterwards effected
under the orders of the magistracy, and at the expense of the recus-
ants.
"It is forbidden to establish dams, or to construct works of any
kind whatever, either across the bed or along the banks of the river,
without the especial permission of the magistracy, under a penalty of
two hundred crowns for each offense. The water shall be allowed to
flow freely for the benefit of irrigators at lower levels, and particu-
larly for the increase of the supply in the canal Martesana.
" All parties using the water of the Lambro are enjoined to obey
176 ITALIAN IRRIGATION LEGISLATION.
the orders of the guards appointed to watch over the execution of the
present edict, under a penalty of one hundred crowns, which may be
increased at the will of the magistracy.
" Two guardians are appointed for the river, one having charge
from the source, near the lakes Alserio and Pusiano, throughout t In-
entire district of Crescenzago, and the other from this latter point to
the junction of the Lambro with the Po. They are enjoined to watch
carefully over the execution of the present and all preexisting regu-
lations, to secure for the river all the water that of right appertains-
to it, and to report all infractions of the orders of the magistracy, on
pain of removal, and such other punishment as may appear due.
" No one shall be permitted to persevere 'in present or past abuses,
on the plea of neglect, tolerance, or carelessness of the public agents.
No such plea shall be accepted from any one in mitigation of punish-
ment for breach of these orders; and the magistracy reserves to itself
the power of taking whatever steps may seem to it best in each case,
saving always such rights as may be vested in the royal treasury.
" This notification shall be published, not only in this city of Milan,
but in the towns of Monza and Melegnano, and in the adjoining dis-
tricts."-[Smith, Vol. II, pp. 187 to 190.
(2) Special Regulations for the River Lambro. (1782.)
"Retaining in full force all preexisting regulations, and especially
that under date the twenty-sixth July, 1756, the guard of the Lambro
residing at Monza is enjoined to visit annually before the twenty-fifth
of March, the springs, commonly called teste (the heads), by which
the river is fed with the view of ascertaining that all these are well
cleared, and that they really supply the entire quantity of water which
could be obtained from them. All parties interested in such supply
should depute persons to accompany the camparo during the said
visits, to concert and arrange with him regarding the nature and
extent of the necessary clearances, or of such other works as may be
required for the efficiency of the heads. The guard should report the
whole of these proceedings for the information of the magistracy.
"Having satisfied themselves of the correctness of this report, the
magistracy shall order the execution of the repairs, the expense of
which shall be recovered from the employers of the waters in propor-
tion to their respective interests in the same. In addition to these
expenses for works, a fair remuneration shall be fixed, at the discre-
tion of the magistracy, for the assistance given by the guard
"It is forbidden for the future to throw earth or rubbish, or other
matter into the river, or to extract sand, except from collections of
deposit; and in removing these, care shall be taken not to derange
the natural level of the river. Excavations or ditches for the collec-
tion of sand or gravel are absolutely prohibited.
" If a necessity should arise for clearing earthy materials from the
bed of the stream, parties desirous of doing so should communicate
with the guard, who will satify himself that the work contemplated
can cause no damage, either to the river itself, or to the adjoining
properties. In the event of new work being undertaken, reference
should be made to the magistracy, who will prescribe such conditions
as may appear most appropriate in each case.
" Various sinuosities of the Lambro being caused by trees falling
into the bed, or by spurs which throw the force of the stream on the
GOVERNMENT REGULATIONS FOR WATER-COURSES. 177
opposite bank, to the injury of proprietors of land there, from the
corrosion which is the consequence, the guard ought to immediately
intimate to the owners of such tree or spurs that they must remove
them within three days, otherwise they shall be removed by the
guard himself, and all expenses for work or damage shall be at the
charge of the proprietors.
"The trunks and roots of trees which come down the river in time
of flood shall be removed by the guard; and as it is impossible»to
know whose property they are, they shall be granted to him a& ~a
re'ward for his exertions in removing them.
" The soaking of flax in the river being injurious to the fish, it is
absolutely prohibited; but parties may carry on the process, each in
their own channels, and the guard should at once report any infrac-
tion of this order to the magistracy.
"To prevent any affectation of ignorance, his royal highness orders
this edict to be posted in all public places along the river, and enjoins
all parties to obey the agents of the magistracy." — [Smith, Vol. II,
pp. 190-192.
SECTION II.
OWNERSHIP AND CONTROL OF SPRINGS.
CHARACTER AND IMPORTANCE OF SPRINGS.
The northern plain of the valley of the Po, throughout the very
localities where the principal canals have brought their waters, is the
site of a great number of fontanili, or springs, which afford a large
and highly prized supply of water for irrigation.
Under extended areas of this plain, at depths from five to ten feet
from the surface, lie beds of permeable gravel and sand filled with
water, which the considerable transverse fall of the country puts
under a slight head of pressure at localities towards the medium and
lower parts of the sloping surface.
Doubtless many of these fontanili, like the cienegas of Los Angeles
and San Bernardino counties in our state, formerly were natural
springs or little marshes producing water, and have been developed
and concentrated in their flow by artificial openings; but very many
more, and their numbers mount up into the thousands, are purely
artificial developments. They are made by digging into the permeable
strata, and the waters, rising several feet, are brought out to the surface
and on to the meadows further down the plain, by conducting them
in ditches or closed conduits on grade slopes less than those of the
country.
Besides these peculiar springs, which play so important a part in
the irrigation of the plains, the country generally is one well supplied
with subterranean waters, so that ordinary springs are plentiful, as in
12*
178 ITALIAN IRRIGATION LEGISLATION.
almost any region, upon the higher lands and in the hilly and moun-
tainous districts.
Under these circumstances we might expect to find the recorded
customs and laws of the countries replete with provisions touching
the ownership and use of spring waters, and such is the fact, for there
arp veritable treatises of considerable length and intricacy, relevant
to this subject alone.
KKillT or I'UOl'KKTY IN' -VXD ACQORKI) RIGHTS TO I Si: Sl'IMNUS AND Sl'KlNU \VATKKS. -;;
Lombardy. — The principle that ownership of the land carries with
it all beneath its surface and all it produces, has prevailed from the
times of the earliest recorded laws in all these north of Italy states.
Waters rising out of the soil have always been regarded as the abso-
lute property of the owner of the soil, so long as he retained them
within the bounds of his estate, and did not permit his title to sutler
abridgment by allowing some other proprietor to acquire a prescrip-
tive right to the use of the waters.
The springs of the Milanese alone, in upper Lombardy, number
upwards of seven hundred, and are frequently very valuable. Bainl
Smith tells of one, not an exceptional case at all, whose rising pool
covered a space two hundred by one hundred feet in area, and which,
supplying twelve cubic feet of water per second, was estimated to
be worth $20,000.
The springs always remain the property of the owner of the soil,
although the right to use their waters may be wholly alienated and
held by the owner of some other property, either by sale or prescrip-
tion. Baird Smith cites the following case:
"The irrigating water on this property was derived from a beauti-
ful spring, which may be quoted as an illustration of the strange way
in which rights of property to water have established themselves in
this country. The proprietor could not tell me how or when the
right of use was established in his family. No written record of any
kind existed to prove it; but from time immemorial the use of the
spring, though situated in the middle of another estate, belonged to
the possessors of the land he held, and efforts made het'ore the tri-
bunals to invalidate his claim had entirely failed. He had. however.
a right only to the water; to a passage for it and for his work-people
along its banks; to sufficient space on each side of the channel for
depositing the sand or gravel clearance; while the soil, trees, and
produce of the banks belonged entirely to the proprietors of the
farm on which the spring was situated."
Piedmont,— The Sardinian code of 1837 had the following provisions
#De Buffon,Vol. II, pp. 193-198; Smith, Vol. I, sundry places, and Vol. II, pp. 167-169, 254-
257, and elsewhere.
OWNERSHIP AND CONTROL OF SPRINGS. 179
with respect to the ownership and control of springs; and the
acquirement or loss of right to the use of spring waters:
" ART. 555. He who has a spring on his land can use the same
at his will, saving the right which the proprietor of the lower land
ma}7 have acquired hy title or prescription.
" ART. 556. The prescription in this case can be acquired only by
an uninterrupted enjoyment during the space of thirty years, calcu-
lating from the moment when the proprietor of the lower land made
and finished on the upper land visible works, designed, and which
have actually served, to facilitate the descent to, and the passage of
the waters through, his own property.
" ART. 557. The proprietor of a spring cannot change its course
when the water necessary to the inhabitants of a commune, village,
or hamlet, is obtained from it, but if the inhabitants have neither
acquired iio'r prescribed rights to the water,, the proprietor may
demand an indemnity, which is regulated by the tribunals, on the
report of professional men."
Remembering that this code was promulgated in 1837, about thirty-
three years after the publication of the Code Napoleon, and that it
was a codification from laws and decrees, some of them made and
put forth for the country by Napoleon during the period of his dom-
ination of it, we readily appreciate the similarity of these provisions
to articles 641, 642, and 643 of the French code.*
They are, indeed, in the original languages, worded, as near as can
be, exactly alike, with the important exception noticed in the second
couplet — articles 556 and 642. Taking advantage of the experience
gained from the contests in France, occasioned by the uncertainty as
to the location of the works which a proprietor must construct to
facilitate the flow on to his estate, in establishing a prescriptive right
to the use of spring waters, the framers of the Sardinian code evi-
dently followed the decisions of the French courts noticed in chap-
ter V, and which at that time had been full enough for guidance,
and embodied in their code itself the explanatory provision whose
absence had occasioned so much trouble in France.
They distinctly said that the works necessary in the establishment
of the prescriptive right must be " visible works," and " on the upper
land" — that is, the land where the water rises, and where it is owned—
and that they must be maintained for thirty years. It is said that
this provision has prevented a repetition in Lombardy of the long
contests which troubled the French courts on this point.
The Kingdom of Italy. — The code of Victor Emmanuel, § promul-
gated in 1865, for all Italy, and now the law of the country, presents
* See, Appendix I.
# Sec. Appendix II.
180 ITALIAN IRRIGATION LEGISLATION.
in articles 540, 541, and 542, provisions corresponding to those of
articles 555, 556, and 557 of the Sardinian code above quoted.
Article 540 of the new is identical in wording, in the original, with
article 555 of the old code. The principle as to ownership of a spring
is the same for all Italy as it was for Piedmont and other parts of the
Sardinian kingdom.
Article 541 of the new differs in general wording from article 556
of the old code, as indicated by the translations given; and also con-
tains the important addition to- the effect that the works shall not only
be "visible" and "on the upper estate," but shall be permanent, in
order to constitute conditions to establish a right of use of the waters
of a spring. Otherwise, the articles are substantially the same.
Article 542 of the new is differently worded, but has substantially
the same meaning as article 557 of the old code, with the exception
that the character of evidence required in the adjudication of (Iain-
ages, is left to other provisions of the law, and not specified for this
case in the new code.
KK<;t:i,ATIOX OK TIIK Ol'KNING AND USE OK Sl'KINOS.
Not only, from the earliest recorded custom touching this subject,
has the ownership of ground-waters in Italy vested exclusively and
completely in the owner of« the land, but, within certain prescribed
regulations as to distances from other works, every owner of lands
might dig for water as he chose, and do with water so found as lie
saw fit.
The origin of these springs, scattered by thousands over the plain,
being in a common water-bearing stratum, which was cut through by
the natural, as well as cut into by the artificial surface drainage and
supply channels — the rivers, creeks, and large canals — it was found
at an early period in the development of the country that the open-
ing of new springs drained the waters from old ones, as well as from
the water-courses, when excavated too near thereto, according to cir-
cumstances.
Amongst the earliest of the statutes of Milan was one prohibiting
the opening of a new spring on any property within a certain distance
from the bank of any river, or within a certain other distance of any
other .spring already formed, under pain of a heavy fine to be for-
feited to the treasury of Milan, and with the obligation to refill the
excavation and extinguish the new spring.
Later legislation discontinued the prescribing of any fixed distance
to be maintained between springs, but provided for leaving that point
to experts to decide for each case according to circumstances.
REGULATION OF THE OPENING OF SPRINGS. 181
Lombardy. — The important parts of the legislation of Lombardy,
regulating the opening of new water-courses, in force from the early
part of this century to the consolidation of the kingdom of Italy,
about twenty years ago, were contained in the law of 1804 and a
decree of 1806. The item in point, of the law referred to, was as
follows:
"ART. 55. It is forbidden to excavate or open springs, or heads
of springs, water-courses, and channels, as also to deepen or increase
the dimensions of excavations, or springs actually existing, in the
vicinity of rivers or canals, within the distances which, according to
the judgment of practical men, could lead to injury to the rivers or
canals, or to their banks."
This law was one placing the running waters — rivers, streams, and
torrents — under the charge of the public administration, and provid-
ing regulations to be observed in carrying out the charge. It did
not relate, in any way, to springs and waters not of the public
domain, except as might be necessary to protect the public waters.
Hence we find that its provision concerning the distances to be
observed in opening new springs, and making excavations which
might cause the opening of springs, related to the "vicinity of the
rivers and canals," only.
The decree of 1806 supplemented the .above provision of the law,
by the following paragraph, Article 12 of Title 2 :
"Saving the prohibition in Article 55 of the law of 1804 [above
quoted], it is permitted to every one to excavate springs on his own
land, and to conduct the waters, respect being always had to any
rights which other parties may possess."
It has been held' that this provision of the decree of 1806 applied
the rule of the law of 1804 to all excavations on private lands, regu-
lating their distances from other springs, canals, etc., of private par-
ties, as these had previously been regulated with respect to the loca-
tion of public canals and rivers.
These rules were the result of a summarizing of the outcome of
experiences wherein it was found that circumstances of soil, sub-
soil, and practice produced such great differences in the minimum
distances to be maintained between new and old excavations and
channels— these varying from 8 to 200 yards— that it worked hard-
ship to establish any fixed distance, and equity could only be arrived
at by a general provision of law, leaving its application to expert
judges of the facts and natural laws in each case.
De Buffon says, with reference to the laws of 1804 and 1806 :
"By this ruling, as maybe seen, the legislator was compelled to
adhere to the principle of leaving it entirely to the option of experts
182 ITALIAN IRRIGATION LEGISLATION.
to fix the distances of new excavations from older established works,
in the different localities, so as to cause no injury, without prescrib-
ing a minimum determined distance, as has been done in the case of
the Piedmontese law. The fact is, that it has been very difficult to
fix this minimum for a territory like the Milanese, where, in most
any locality, one is sure to find water by excavating, and never knows
but that it is water which has filtrated from some of the numberless
canals which exist in the neighborhood." — [De Buffon, Vol. II, p. ±2S.
Piedmont, — The legislation of Piedmont on this subject was crys-
tallized in articles 599, 600, and 602 of the Sardinian code in ls:(>7,
and in this form continued in force until the consolidation of the
Italian kingdom in 1865.
These articles take the form of, first, prescribing rules for excava-
tions, such as ditches, canals, etc., not designed for the purpose of
opening new springs, and, then, applying these rules, with additions,
to the case of excavations made expressly for the purpose of getting
a new flow of water.
The articles concerning excavations for ditches will be given in a
subsequent chapter of this paper. I state their main features here,
and then give the article specially relating to excavations for springs.
In excavating upon one's own land, for a canal, ditch, or other
similar purpose, the upper edge of the excavation had to be placed
at a distance at least equal to its depth from the nearest boundary of
the property of another; the face of the excavation had to be sloped
away at a rate not steeper than one on one, and if local custom or
regulations prescribed a greater distance or longer slope, then such
custom or regulations had to be followed. And, furthermore, should
the boundary of the estate be formed by a ditch or road owned in
common, the excavation had to be at the distance mentioned, from
the nearest edge of such ditch or road. These provisions are found
in substance in articles 599 and 600; article 601 relates to the case
where the line of boundary is formed by a party wall, or wall owned
in common, and then comes the special provision concerning springs,
as follows:
"ART. 602. Parties desirous of opening springs, of establishing heads
or channels of discharge for the same, of making canals or water-
courses, of clearing, deepening, or widening the beds, of increasing
or diminishing the slopes, or varying the forms, shall be bound to
observe such increased distances over and above that fixed in the
preceding articles, and to execute such other works as may be con-
sidered necessary for the protection of preexisting springs, canals, or
water-courses, designed either for the irrigation of land or the supply
of buildings.
"And in case of dispute between proprietors, the courts in deciding
ought to aim at reconciling the respective interests of the parties in
the manner most just and equitable, having due regard to the rights
REGULATION OF THE OPENING OF SPRINGS. 183
of property, to the advantage of agriculture, and to the special uses
to which the water may be destined. And, further, in all cases where
such proceedings may be necessary, they ought to determine and
decree, in favor of one or the other party as may be right, that amount
of compensation which may appear on grounds of justice and equity
to be fairly due."
The Kingdom of Italy. — In the Italian code of 1865 the provisions
above referred to and quoted from the Sardinian, were closely fol-
lowed in tenor, so that it is only necessary to refer to articles 575, 576,
and 578* to note the concurrence.
THE QUESTION OF DISTANCE, ONE FOR EXPKRTING.
The ancient legislation of Milan prohibited the opening of new
canals or spring heads within 66 feet of rivers, and 580 feet of pre-
existing springs; that of Verona fixed the last distance at 639 feet;
of Brescia at 106 feet; while the old laws of Mantua prescribed 24
feet as the minimum between new and old water-carrying or pro-
ducing excavations of any kind; thus, illustrating the fact that, in
different quarters, soils of very different degrees of permeability were
found, and showing the necessity for leaving questions depending
upon varying physical phenomena, to be determined as they arise
rather than by any general rule of law; and explaining why the
modern legislation of the country has provided for a proper expert-
ing of such cases and a decision of them on the facts and deductions
properly due thereto.
The necessity for legislation of this kind is well presented by the
following extract from the work of an Italian author, worthy of all
attention on these subjects. He says:
" Agriculturists find it hard that they can scarcely strike a spade
into their lands without running the risk of being summoned before
the courts, and forced to give security against possible damages. The
proprietors of springs and canals are wearied to death by having to
remain always on the watch against the works undertaken by their
neighbors, or of having to submit even to real injury from the diffi-
culty of obtaining clear evidence of it."— [Smith/ Vol. II, p. 249,
quoting Giovanetti.
SECTION III.
THE RIPARIAN RIGHT.
Bearing in mind the fact of the definition of public streams as
being "rivers" and "torrents," and that these words apply in fact to
all water-courses except very small streamlets and minor ravines, we
* See, Appendix II.
184 ITALIAN IRRIGATION LEGISLATION.
may now go on to the consideration of the riparian water privilege
accorded by the codes of Charles Albert (1837) and of Victor Em-
manuel (1865).
Piedmont.— The Sardinian code (1837) contains the following pro-
vision :
"ART. 558. Any one whose land borders on a stream flowing
naturally, and without the aid of works executed by man, and which
has not been included among the rivers, streams, and torrents,
declared in. Art. 420 to be the property of the royal domain, may make
use of it during its passage, for the irrigation of his property.
"Any one whose property is intersected by the same stream may
make use of it within the limits of his own land, with the obligation,
however, of restoring the water to its natural channel on its passing
beyond the boundary of his estate.
"ART. 559. In the event of any dispute arising between the propri-
etors to whom such waters could be useful, the tribunals, in deciding,
must conciliate the interests of agriculture, with, at the same time,
a due regard to the right of property. And in all cases the local and
special rules which regulate the course and use of the waters must
be observed "
From this we see that the owner of one bank of a natural stream
not considered of public importance, might make use of its waters in
irrigating his riparian lands; and that the owner of both banks might
also utilize it upon his estate, but that he had to return the waters to
the natural channel.
This was a close following of the Code Napoleon, after which the
Sardinian code was framed, and left open the question as to whether
or not the owner of one bank had to return the water to its natural
channel after use in irrigation, and if so, how much or what propor-
tion he had to return. This, as \ve have seen, was a groat question
in France, which was, after long litigation, set at rest by decisions of
the highest courts and rulings of the administration, declaring that
the obligation to return the water to its natural channel applied only
in the case of diversion for other uses than irrigation.*
The Kingdom of Italy. — In framing the Italian code $ in 1865, this
ambiguity was done away with, somewhat, by the following wording:
"ART. 543. Whoever has an estate bordering on a stream which
flows naturally and without artificial help, excepting such as are
declared public property by Art. 427, or over which others have a
right, may make use of it for the irrigation of his lands, or for the
exercise of his industries, on condition, however, that he restores
the drainage and residue of it to the ordinary channel. Whoever
* Refer to pp. 97 and 98, ante, and elsewhere. Remember that this applies to streams not of
the public domain: In France, to streams not floatable for logs, even: and in Italy, those not
of general consequence as irrigation feeders.
§ See, Appendix II.
THE RIPARIAN RIGHT. 185
has an estate crossed by such a stream may also use it in the interval
of its transit, but with the obligation of restoring the drainage and
residue of it to its natural course when it leaves his lands.
"ART. 544. Should a dispute arise between owners to whom the
water may be of use, the judicial authority must reconcile the interests
of agriculture and industry with the rights of property; and in all
cases the particular and local rules applicable to the stream, or the
use of the water, must be observed."
As the law now stands in all Italy, therefore, the owner of one or
both banks of such a little stream may use its waters in irrigating
his riparian lands, but he must restore " the drainage and residue of
it" to the ordinary channel; while he who is not a riparian proprie-
tor cannot take such waters at all without the consent of all of the
riparian proprietors, nor can any one riparian proprietor assign his
right to water from such a stream to any one else.
The riparian right to divert waters from a stream is confined to
the case of very small streams, and is scarcely known in the Valley of
the Po — certainly not on any of the streams which rank as important
sources for irrigation supply.
On this subject Mr. Baird Smith has written as follows:
"Even the riparian proprietor is prohibited from using the stream
which flows past or intersects his land, without the special permis-
sion of the government, both in Northern India and Northern Italy."
But " there are instances in both regions where, perhaps in
remote places, in mountain valleys, or like localities, the running
streams have been used for ages by the inhabitants without let or
hindrance, or acknowledgment of superiority of any kind. * *
The framers of the Albertine Code,* wisely respecting rights founded
in immemorial usage, include all such rights in articles 558 and 559,
which seem to be most judiciously adapted to the peculiar circum-
stances under which these exceptions to a general rule have arisen. "-
[Smith, Vol. II, p. 256.
AUTHORITIES FOR CHAPTER IX.
In the preparation of this chapter I have consulted and compared the following named
authorities :
Sismondi. — " History of the Italian Republics." Bv J. C. R. De Sismondi ; 1 vol. ; London, 1832.
Hallam. — " History of Europe during the Middle Ages." By Henry Hallam ; 1 vol.; New York
edition, 1853. See, Chapter III, " Italy."
De Euffon. — "Agricultural Hydraulics: Of the Canals of Irrigation of Northern Italy." By
Nadault De Buffon, an engineer-in-chief of the Government Corps of Civil Engineers,
France; 2 vols. ; Paris, 1862. See, Vol. II, Chapters XXXVIII to XLVI.
[Note. — Although by the same author, this is a different work from that cited for
Chapter II, and others succeeding, concerning French legislation, etc.]
Smith. — " Italian Irrigation: A report on the agricultural canals of Piedmont and Lombardy."
By R. Baird Smith, captain of engineers, Benal Presidency; 2 vols.; London, 1855.
See, Vol. II, Part IV, Historical Summary; Chapter I, Sec. 1, and Chapter II, Sec. 1;
and elsewhere, as cited.
Sardinian Civil Code. — [See, authorities for Chapter X.]
Italian Civil Code. — [See, authorities for Chapter X.]
* The Sardinian code was promulgated by Charles Albert; and hence called "Albertine."
CHAPTER X— ITALY"';
WATER PRIVILEGES AND CANAL WORKS, AND THE ADMINISTRATION OF
WATERS AND WORKS.
SUCTION I. — The Right to Construct Works in and to Divert Waters from Streams.
Governmental Policy in regard to Water Privileges.
Applications and Formalities for Water Privileges.
Terms of Water-right Concessions.
SECTION II. — Administrative Regulation of Water- Courses.
• The Administration.
River Regulations.
SECTION III. — Administration of Government Canals.
The Administrative Bureau.
Canal Regulations.
SECTION I.
THE RIGHT TO CONSTRUCT WORKS IN AND DIVERT WATERS FROM
STREAMS. »
GOVERNMENTAL POLICY IN REUARD TO WATER 1'KI VILEi; KS.
During the times of the ownership of the streams and waters by
the sovereigns of the states, and by the petty feudal rulers, and by
the sovereign powers of the states as the representatives of all the
people, in each case, as has been spoken of under preceding headlines,
the right to divert water from any river or torrent could only be
acquired in the states of northern Italy by special grant or concession
of privilege made on a formal application, after due examination and
consideration of all the interests to be affected, and all the circum-
stances likely to affect the interest acquired under such grant.
And now that the country is united under one government and
the waters belong to the royal or public domain, the same rule and
substantially the same formalities in applying it exist.
Milan. — The earliest recorded laws of any of the northern Italian
states — the Milanese code of 1216 — contained an express prohibition
of the act of building a dam or other structure in the channel or
bed of a stream without due authority, and prescribed a process nee-
WATER-RIGHTS AND PRIVILEGES FOR WORKS. 187
essary to be gone through with in obtaining such authority. This
principle of active governmental control and administration of .the
streams is found in all the compilations of laws which follow, for the
region of the former republic of Milan.
Venice. — During the fifteenth century the republic of Venice pro-
mulgated anew throughout its irrigation provinces, regulations as-ta
diversion of water from streams, similar in principle to the laws of
Milan. Those thus published for the province of Verona commence
with this declaration:
"Every inhabitant of the territory of Verona is at liberty to derive,
from the rivers appertaining to the state, such supply of water as is
necessary for the irrigation of his property, on obtaining the requisite
authority from competent magistrates, and under the condition that
he inflicts no injury on parties possessing older rights to the same
waters."— De Buffon, Vol. 2, p. 297.
Having said thus much for two of the ancient governments, we
come now to those of modern times in these regions.
Lombardy. — It appears that the policy of the rulers in Lombardy
until the later years of its existence as" a separate state, has generally
been to dispose of the waters of its streams in absolute property, by
gift or sale, to those who constructed the canals to lead them out, or
itself to lead them out in canals and sell them directly or indirectly
through "farmers of the canal revenues," to the irrigators.
One notable exception to this rule was during the first domination
of the Austrian government over the Lombardo-Venetian provinces;
at which time a regulation for the administration of matters pertain-
ing to water-courses was issued, which contained this clause:
" In making grants we do not thereby vest in the grantee the right
of property in the water, but only the right to use it either in irriga-
tion or for hydraulic works. The right of property shall remain as
heretofore among the rights appertaining to the crown." — [Smith,
Vol. II, p. 212.
At the period of the consolidation of the Lombardian kingdom,
such a great number of rights to water had grown up and called for
recognition, that the waters left at the disposal of the state were
reduced to a comparatively small quantity.
"In exercising its right of property in these waters for irrigation,
the government of Lombardy followed one of three courses: 1st. It
disposed of the water in absolute property, to parties paying certain
established sums for it. 2d. It granted perpetual leases of the water
on the payment of certain sums annually. 3d. It granted tempo-
rary leases for variable times at certain annual rates, the water revert-
ing to the State on the termination of the lease." — [Smith, Vol.
II, p. 135.
188 ITALIAN IRRIGATION LEGISLATION.
The first named course in policy was most common in the earlier
years of the existence of the government; and, at that time, the last
named plan was the least often resorted to.
At a later period the policy of granting the water in absolute prop-
erty was almost abandoned; that of granting perpetual leases became
prevalent; and the third method of granting temporary leases came
into favor. And these two courses were those followed by the Lom-
bardian government at the time of the consolidation of the Italian
government, and the extinction, as an independent power, of that of
Lombardy.
Piedmont. — The government of Piedmont has generally been more
conservative in the care of its waters than that of Lombardy.
Absolute grants of ownership of waters ceased in that country before
the beginning of the present century. Water privileges for all time
have been indeed issued, but the full right of regulation was reserved
to the government, and the session of propertyship in the water was.
expressly disclaimed.
This reform, however, occurred of late years as compared to the
origin of many water rights in the country, and the important works
have absolute rights of ownership in the waters acquired in the cen-
turies gone by.
During the later years of the existence of the Piedrnontese gov-
ernment its waters were disposed of only on long term leases, drawn
up with great care and in minute detail.
The Kingdom of Italy. — This last mentioned policy is that pursued
by the government of Italy since it has supplanted those of Lom-
bardy and Piedmont; the duration and terms of concessions being,
as we shall see, quite similar to those already written of for France
in the chapters of this report which have gone before the present.*
APPLICATIONS AND FORMALITIES FOR WATKR PRIVILKGKS.
Piedmont. — The acquirement of water privileges in Piedmont and
the operations of diversion were, for many years previous to the con-
solidation of the Italian government, regulated by the following
royal "Instruction to the governors of provinces and the agents of
the royal domain, with respect to grants of water from rivers and
torrents," dated in 1828:
«* * * gun(jry statutes and patents formerly published, have
hitherto regulated the provisions for grants; but as it is desirable to
establish one uniform rule of procedure in such cases, the secretary
Letters from Hon. George P. Marsh.
WATER-RIGHTS AND PRIVILEGES FOR WORKS. 189
of finance, whose duty it is to obtain the royal sanction to proposed
grants of water, has decided that in future the following orders shall
be observed:
" I. Parties desirous of obtaining grants of water from the royal
rivers and torrents, whether for irrigation or the movement of ma-
chinery of any kind, must present to the intendant of the province
where the head of the proposed derivation is situated, petiliolis
addressed to his majesty and authenticated by the signatures of the
petitioners, or by those of a notary and advocate.
" II. To each petition the undermentioned documents should be
attached :
"(1st). A regular plan of the locality, on which shall be noted the
works which it is proposed to construct in the bed of the river or tor-
rent, and the adjacent ground, so far as it may be connected with
these works.
*'(2d). Longitudinal and transverse sections of the river whence
the supply of water is obtained, marking thereupon the depths in
time of flood, and under ordinary circumstances; also, the height of
the works to be established in the stream, and of the head of the
ditch.
"(3d). A detailed report, proving the utility of the proposed works,
and that they cannot cause any injury, either to other parties, or to
the river, or torrent itself.
" These documents must be prepared by a hydraulic engineer. But
in the event of no hydraulic engineer being near at hand, or of the
works being of limited importance, it is permitted, but with special
reserve, to employ a civil architect, or land surveyor, in the prepara-
tion of the papers above referred to.
"The intendants of provinces will render all practicable assistance
to parties interested, so as to enable them to comply with the rules
of the superior authorities.
"III. The petition and the documents above specified should all
be prepared on stamped paper.
"IV. The intendant, on receiving the claim and its appendices,
shall satisfy himself of their regularity, and shall depute the offi-
cial engineer of the province to visit the spot at a specified time, to
investigate the practicability of the project, and the propriety, or
otherwise, of carrying it into effect; as also to decide on whatever
precautions or modifications regard to public or private interests may
require.
" V . The visit must be preceded by a publication of the claim,
within the limits of the district specially interested in it.
" If the claim and the works proposed are in any way connected
rith the interests of more than one district, the notification should
>e made at the same time throughout the whole.
"VI. The order of the intendant should contain a brief summary
of the nature and extent of the proposed works, and an invitation to
all parties interested in them to be present at the time appointed for
the visit, when they can explain their views, either verbally or in
writing.
" VII. The report of the official engineer ought, in all cases, to fur-
nish full and clear details on the following points:
"(1st). On the quantity of water to be taken from the river and the
special use to which it is to be applied.
" (2d). On the form and dimensions of the headworks to be con-
190 ITALIAN IRRIGATION LEGISLATION.
structed, being careful to note that the provisions expressed in article
16 of the regulation of the twenty-ninth of May, 1817, are vigorously
to be enforced.
"(3d). On the directions, heights, lengths, forms, and mode of con-
struction of the dams required to raise the water.
"(4th). On the precautions to be observed by the grantee, when the
supply is to be obtained by means of temporary dams, in replacing
the same after the floods. Grantees being generally inexpert and
careless in hydraulic operations, a matter so important as this pro-
ceeding should not be left dependent on their wills, but definitive
measures should be prescribed whereby the injuries likely to be
caused to the beds of rivers or torrents by badly constructed dams
may be guarded against.
"(5th). On the capacity and slope of the canal for the passage of the
water.
"(6th). On the means to be adopted to insure the regular execution
of the works, to restore (when such is possible) the water to the stream
at a lower point, and to protect all parties from damage by overflow
of the canal or otherwise.
"(7th). And, finally, the official engineer ought to detail any local
peculiarities which may have influenced his opinion.
"With sucli information before it the permanent commission of
engineers (to which the project will be referred) can better decide on
the propriety of sanctioning the final execution.
" The various documents above referred to will be attached to the
royal patent authorizing the grant, in order that both the adminis-
trative and the judicial authorities may always have the means of
ascertaining precisely the terms of the said grant, and of restricting
the grantee within the limits of the same.
"VIII. On the receipt of all the papers connected with the ease,
the intendant should forward the same to the agency general of
finance, with his own opinion upon them.
"IX. So SOOn as the agency genera] receives notice from the secre-
tary of finance that the royal patent for the grant lias been signed, it
will communicate without delay with the intendant. who will trans-
mit the information to the ollicial engineer, to the syndic of the
district, and to the petitioner, requiring the latter to procure the
aforesaid patent from the secretariat of finance, and to pass it through
the offices of the agency and the chamber of accounts, within the space
of four months, under pain of forfeiture.
" X. The receiver general shall be supplied with the necessary
instructions to enter the patent on his list, and to arrange for the
collection of the annual water rent."— [Smith, Vol. II, pp. 24<.)-2.r>:->.
See, also, De Buffon, Vol. II, p. 223, et seq.
Lombardy. — Several regulations of a like tenor prescribed the forms
of application and proceedings to be observed in obtaining water
privileges in Lombardy, but their provisions are so like those of Pied-
mont, just transcribed, that it would be a useless repetition to give
them here.
The Kingdom of Italy. — When these north of Italy governments
were set aside in that of unified Italy, much of the machinery of the
WATER-EIGHTS AND PRIVILEGES FOR WORKS. 191
hydraulic administration in the valley of the Po was retained. Regu-
lations were continued in force temporarily, at least, and thus the old
established forms and local rules were, many of them, still in appli-
cation as late as 1882, and, it is believed, stand as laws to this day;
although at that time a movement had recently been made, and was
still on foot, to set them aside for a uniform and general regulation
on each subject for all Italy. But the principles in the proposed new
water code are substantially a transcription of those in the old rules
so far as these, for the different localities, could be reconciled to each
other; and, hence, we may look upon the old regulations cited as
being substantially those of to-day.*
TERMS OF WATER-RIGHT CONCESSIONS. LOMBARDY — PIEDMONT.
Lombardy. — Previous to the recent consolidation of the Italian
government, the general terms of water-right concessions in Lom-
bardy were fixed in a regulation dated in 1806, and which was in this
particular as follows:
Water -right regulations — 1 806.
Title I. Diversions of Water from Rivers, Torrents, and Public Canals.
"ART. 1. No one can divert public waters nor employ them for
mills without a concession from the government.
"ART. 2. This grant specifies the quantity, the duration, the man-
ner, and the conditions of the derivation, and the particular use of the
waters, and establishes the annual rent which corresponds and is due.
"ART. 3. The terms of the preceding articles are not intended to
work prejudice against actual possessors in their rights and uses for
the water-heads and mill-rights to which they already have just title
under the terms of the laws and customs in force in the different
provinces.
"ART. 4. No new grant can be made to carry injury to existing rights.
These will be protected, by appropriate reservations, from the influ-
ence of later concessions. To this end all petitions (for new grants)
are published and posted, engineers are consulted, and together 'with
their reports the proper conditions for the conduct of the work are
inserted in the regulation.
"ART. 5. It is prohibited to change, under any alleged right, the
actual state of outlets and of fixed dams without the permission of
the government.
"ART. 6. The works made for diverting water by the aid of movable
dams must be approved by the engineer-in-chief of the province,
who must give notice thereof to the direction-general.
"ART. 7. The engineers are charged to take care, in the public inter-
est, not only of the use of the waters conceded for irrigation and for
mills, but that the clauses and conditions imposed in the ordinances
are observed.
"ART. 8. To this end, they must keep in their offices a register, in
which are recorded all concessions.
* Letters from Hon. Geo. P. Marsh.
192 ITALIAN IRRIGATION LEGISLATION.
"ART. 9. In case any one having a right to use water commits any
abuse (of the right) the engineers-in-chief are authorized, by virtue
of their office, to reestablish the place in its original state and under
their direction; for this power must be fully expressed in all the acts
of concession.
"ART. 10. When contests occur concerning the use of waters, de-
voted to no other, object than the interest of individuals, they shall be
tried, as of old, by the ordinary tribunals.
"ART. 11. When, in such contests, public and private interests are
both concerned, they are to be carried before the administrative
authority."— [De Buffon, Vol. II, pp. 226, 227.
Piedmont. — By the terms of the Sardinian code, applying to Pied-
mont, grants for the use of water from streams of the royal domain
were made only on condition that no injury should be brought about
to legitimate rights previously acquired.
In the construction of works and management of waters under
such grants, the grantees were obliged to avoid backing up waters
upon those holding rights above them, or precipitating waters in
undue volume on those below them, or depriving others of the waters
which was due them. And should any damage accrue from their
acts of omission or commission, they were bound by the terms of
their grant to repair the same, and further to suffer such punish-
ment as might be provided by the local or general police regulations.
In conducting their waters under such grant they were obliged to
construct works according to prescribed and approved plans, to
maintain those works under government supervision, and to observe
the regulations provided for the ruling of such matters.
The following are the articles referred to :
"ART. 631. The grants for the use of water appertaining to t he-
royal domain are always made on condition that they involve no
prejudice to anterior and legitimately acquired rights to the same
water.
"ART. 632. Parties having the right to extract and divert water
from rivers, streams, torrents, canals, lakes, or reservoirs, are bound
to avoid injuring those situated above or below them respectively,
by the stagnation or by the backing up, or by the change of course of
the said water. Whoever by neglect may cause any damage in these
ways, shall be bound to repair the same, and further to suffer such
punishment as may be established by the regulations of the rural
police."
The Kingdom of Italy. — Upon this point, articles 614 and 615 of the
Italian code* contain the provisions corresponding to those above
from the Sardinian code.
The terms of water right concessions under the Italian government
*See, Appendix II.
WATER-RIGHTS AND PRIVILEGES FOR WTORKS. 193
will be more fully brought forward in a subsequent chapter under
the heading " Irrigation enterprise— Cavour canal."
SECTION II.
ADMINISTRATIVE REGULATION OF WATER-COURSES.
THK ADMINISTRATION.*
The administration of water-courses and waters in Piedmont is
already sufficiently explained in the provisions of the " Instructions
to intendants of provinces," transcribed under the subhead of "Appli-
cations and formalities," given in the first section of this chapter.
The organization and system of the Lombardian government was
so nearly identical with that of Piedmont in this respect to render
unnecessary any detailed reference to it here.
It now remains to glance at the present system for all Italy, which
indeed was founded upon that of Piedmont.
The Kingdom of Italy. — The executive functions of the Italian gov-
ernment are exercised by ministers appointed by the king. Amongst
these are a minister of public works, and a minister of agriculture,
industry, and commerce.
As in the French administrative organization, there is a bureau of
civil engineering attached to the ministry of public works, but the
organization is not so broad or complete, nor the employment of the
engineers so general throughout the country, in the guarding of the
streams and waters and the regulation of works, as in France.
But, for the valley of the Po, the systems of the Lombardian and
Piedmontese governments have been perpetuated, so that there is in
this great irrigation region almost as complete an organization as that
already described for France.
There have of late years been several movements to reorganize the
public works and engineering service for all Italy, but from various
causes these have not been consummated. There is, however, a gen-
eral and permanent hydrographies! commission, composed of civil
engineers of the hydraulic service, which supervises all affairs con-
nected with water-courses and water-rights, and the minister of public
works is himself a civil engineer of high attainments.
There is a special hydraulic service too, as in the French system >
and all applications for water privileges have to be considered as much
* Letters from Hon. Geo. P. Marsh; also, see, Encyclop. Brit., Vol. XIII, pp. 448-464.
13s11
194 ITALIAN IRRIGATION LEGISLATION.
at length and in detail, and more particularly from the engineering,
technical, and physical points of view, and less from those of the law
and local sentiment, than in the case of the French system.
Thus, the engineers are made the judges of the local necessities and
public advisability, or utility, and report directly to the central admin-
istration, and upon a broader view of each proposition than the French
engineers are required to. While the local administrative officers a re
called upon for their opinions separately.
LOCAL ADMINISTRATIVE ORGANIZATION.
This local administration is made up as follows: Under the gov-
ernment as now organized, the valley of the Po is embraced within
the departments of Piedmont, Lombardy, Venetia, and Emilia; and
they comprise twenty-eight provinces. These provinces are the real
administrative units, each being presided over by a prefect as is the
case of the departments of France. The provinces are divided into
communes, and each commune is presided over by a chief magistrate
called a syndic.
The prefects and the syndics are appointed by the king, and there
are provincial councils and communal councils associated with these
officers respectively, as in the case of the French departmental admin-
istrative system. But unlike the French organization, the communal
unit has direct communication with the central government, and is
really the important factor in the ordering of internal affairs.
In general terms, therefore, we find the prefects of the provinces
and the syndics of the communes charged with the administration of
the affairs of the water-courses locally, in so far as the policing of the
stream and the enforcing of regulations are concerned, but the engi-
neers and the ministry of public works regulate the construction and
maintenance of works in the streams and the diversion of water from
them .
This, of course, relates more especially to the streams of the public
domain. But it is to be remembered that in Italy all streams of any
importance as irrigation feeders are public, and that, except on insig-
nificant water-courses, and those remote from the centers of irriga-
tion, or in mountain valleys, there are no claims of right to the
waters or to the channel beds, founded on riparian proprietorship.
There are, however, some streams controlled altogether by associa-
tions of landholders or canal and water right owners, and over which
the government has only a supervisory duty based 011 the ground
of police power. But these rights are founded on ancient special
ADMINISTRATIVE REGULATION OF RIVERS. 195
grants of proprietorship in the waters and channels, and not on the
ownership of the bank lands.
With respect to administration, .then, the communal and provincial
officers are the chief local executive functionaries in care of the
policing of streams, generally, to carry out the regulations- which
emanate from the central government; and the engineers are a dis-
tinct branch of the administration, having to do with the question
in their separate class of duty.
ADMINISTRATIVE WORKING RIVER REGULATIONS.
The regulations under which the affairs of the water-courses of the
valley of the Po are administered, are largely of origin in the first
half of the present century, and after the formation of the Piedmont-
ese and Lombardian governments of that time.
The principles involved are quite similar in them all, and it is
only necessary to give one example here, in addition to what is inci-
dentally said relative to this subject under other sub-headings, to
sufficiently present the essential features of the system and the spirit
in which it finds its motive.
ADMINISTRATION OF WATER-COURSES — PIEDMONT.*'
In Piedmont the water-courses and royal canals were in charge of
an administrative organization known as the Agency of the domain,
the subordinate employes of which were river-guards, apparently cor-
responding in general duty to those of France, heretofore written of.
The instructions to the various "Agents of the domain " filled a
large octavo volume, and went into great detail. Articles 357, 358,
and 368 provide in effect that the class of agents of the domain to
whom they are particularly addressed should guard the rivers and
streams, watching for infringements of the regulations concerning
diversions of waters and building of structures in the channels, aiding
those who observed the laws, and reporting those who transgressed, to
the director of the domain, and, after obtaining a warrant, proceeding
to their arrest and the enforcement of the law concerning the estab-
lishment of things in their original state.
The agents, say these instructions, ought to be continuously on duty,
for water is a thing which men are prone to take without due authority
and to the grave injury of their neighbors and the public, and stream
channels easily receive serious injury from thoughtless building in
them.
These agents also are enjoined to be thoroughly acquainted with
* See, De Buffon, Vol. II, p. 214.
196 ITALIAN IRRIGATION LEGISLATION.
the laws and regulations touching water-courses and their duty con-
nected therewith, and to know well the character and extent of rights
which people have on the streams within their districts.
The domain receiver in each district is charged with the duty of
seeing that works are constructed under concessions or grants in con-
formity to the terms thereof, and that they are properly maintained
according to the opinion of the engineer. And he must report to tin.-
director of the domain all that is worthy of attention from that officer.
REGULATIONS FOR M'ATER-COURSES — PIEDMONT.*
The affairs of rivers and torrents of all classes in Piedmont were
subject to regulation under a decree, of 1817, of which I present an
abstract, as follows:
Navigable Rivers. — All persons were prohibited from diverting
waters from navigable streams, and from placing any structure in a
channel of any such stream, under a penalty of $2 to £•">(), and also
the obligation to remove it and restore things to their former con-
dition.
Old dams, for whatever purpose used, could not be changed or
repaired without administrative permission and supervision, under
pain of a similar penalty and obligation to restore them, etc.
Trees and underbrush growing along the banks could not be out.
except by administrative authority and inspection; nor could any
clearance be made for cultivation within a distance of about 350 foot
from each bank, without due authorization after inspection, under
pain of a penalty of $2 to $20.
Owners of alluvial lands along rivers or torrents must keep their
cultivations at the prescribed distances therefrom, or coming within
those distances must have a permit for such action, from the intond-
ant of the province, guided by the advice of the communal council,
and of the provincial engineer. Penalty for infringement, $6 to $40;
together with destruction of the plantation.
The digging of wells or opening of streams within certain distances
of the banks of streams was prohibited. Penalty, $20 to £<'>".
Owners of bank property were, under regulations and by permits,
allowed to protect the banks from washing. But revetments of
masonry, brushwork, or other protecting constructions, must in no
case project into the channels, except as these might be planned and
executed under the supervision of the provincial engineer.
The intendant of the province, on the advice of the engineer, had
» See, De Buffon, Vol. II, pp. 314-319.
ADMINISTRATIVE REGULATION OF RIVERS. 197
immediate direction of these matters, and there was an appeal from
him to the direction-general, which acted on the advice of the central
commission of engineers.
Non-Navigable Streams. — All persons were prohibited from_diyert-
ing waters from or placing any structure in the channel of any non-
navigable stream, ranked as a stream of public utility or importance.
For permission to divert water from such stream, or erect any work
in its channel for the purpose of using its water or protecting its
banks, application must be made to the intendant of the province.
The intendant directed an examination to be made by the engineer,
as a preliminary to all permits, and interested parties were notified
to meet the engineer on the ground, and make any desired represen-
tation to him about the project.
The only difference between the treatment of cases on these streams
and those on navigable ones was in the form of proceedings and per-
mits.
The free flow and open channel of small streams must be preserved.
Bank owners might, on due authority, construct works to protect
the banks, but, if calculated to arrest the currents, or deflect them,
injuriously against either bank, they were removed.
The management of the details of the affairs of such streams was
intrusted to syndical associations of proprietors interested.
A provision inserted in all grants of right to water, or right to con-
struct works in a stream, w^as that the proprietors should constantly
keep the weirs of the dams open, to leave ample space for the passage
of flood waters.
For offenses against these regulations concerning non-navigable
streams, similar penalties were imposed to those specified for like
infringements of the rules applicable to navigable rivers.
Old dams and structures for diversion of the water, or for applying
it in use, in any way, must not be changed in form, dimensions, or
elevation, without due permission issued after examination.
The channels of these streams must be kept clear to a standard
width, fixed for each stream in each commune, at the expense of and
by the riparian proprietors, under direction of the provincial engineers.
The banks of these water-courses might be cultivated, but neither
roots nor branches might encroach 011 the bed of the stream.
Islets could not be cultivated or cleared, except at the permission of
the intendant of the province.
When such water-courses had low banks, subject to overflow, the
riparian proprietors were under obligations to keep the channels clear
of deposits down to the normal elevation for the bed.
198 ITALIAN IRRIGATION LEGISLATION.
Consumers of water, or users of it for power purposes, were called
on for a share of these expenses of such maintenance of channels.
GKNRRAL RIVER REGULATIONS — LOMBARDY.
The following general regulations for water-courses for the prov-
ince of Mantua, made while wholly under Austrian dominion, and
continued while a part of the Lombardian kingdom, will convey a
good idea of the general policy and extent of power in this respect
exercised by that government:
River Regulations for the Province of Mantua.
" ART. 1. The damming up, directly or indirectly, of wrater-courses
of any class or kind, or the alteration of any escapes, weirs, or chan-
nels, in such manner as that the water may be turned to the use of
the offending party, or to the injury of others, is prohibited, under a
penalty for each offense of 2,000 lire (upwards of $300), of which, half
shall be granted to the informer. Failing payment of the fine, the
offender shall be sentenced to imprisonment with hard labor for one
year.
" ART. 2. The chief sources of injury to the banks, and of obstruc-
tion to the free course of the waters, are trees, underwood, or bushes
of any kind. It is forbidden to plant these on the banks of the pub-
lic canals and rivers, and such as exist shall be cleared away within
twenty days from the publication of this edict. After this time the
wood shall be cut down by the public officers, and sold for the general
benefit of the associations of the rivers and canals.
" ART. 3. The lines of piles placed in the channels to facilitate fish-
ing cause serious damage. These shall all be removed and sold for
the general benefit; and, in future, whoever replaces such works shall
be subject to a fine of 100 lire (about $15). whereof one half shall be
granted to the informer.
"ART. 4. The proprietors of mills and their work-people are for-
bidden to raise the water, by any means whatever, above the levels
either already fixed, or to be fixed hereafter. During floods, they
shall be careful to open the escapes, so as to prevent damage. Each
offense against this rule shall subject the offender to a fine of 200 lire
(about $30).
"ART. 5. All proprietors of ditches shall be bound to maintain
them in thorough repair, so that no water may escape from them
into the public roads, or in any way cause damage to other parties,
under a penalty for each offense of 200 liret in addition to payment
of all expense for injuries done.
"ART. 6. All employers of water shall obtain the quantities defined
and fixed by their titles and grants. Forfeiture of all right to water
shall follow the illegitimate alteration or extension of the prescribed
areas of irrigation.
"ART. 7. Like forfeiture shall be the consequence of any improper
interference with any of the various kinds of works on the canals.
When a change in these is desired application shall be made to the
magistracy of water for the province, who will order the proper steps
to be taken.
"ART. 8. Employers of water who have irrigated the areas assigned
ADMINISTRATIVE REGULATION OF RIVERS. 199
to them, shall be bound to allow the surplus waters to flow off freely
for the benefit of lower lying lands. To this end every proprietor
shall be bound to establish drainage channels for the collection of
the surplus waters; and neglect in doing so shall entail forfeiture of
all right to water from the respective canals.
"ART. 9. [Orders that periodical inspections .of the canals be made
by the prefect or vice-prefect of the province, so as to insure observ-
ance of the provisions of the edict.]
"ART. 10. It being a common but mischievous practice for par-
ties to carry water to lands so placed that the surplus waters are
entirely lost, it is ordered that every landed proprietor shall cause to
be made, at his own expense, a map of his property, on which the
irrigable land shall be shown in its true dimensions, and with its
heights above the sources of supply of water clearly exhibited; also,
all the water-courses, culverts, roads, or principal canals, aqueducts,
weirs, locks, and every other kind of works, shall be plainly shown.
This map shall be preserved as a record in the office of the magis-
tracy of waters, and shall be corrected from time to time, as changes
are duly sanctioned by the proper authorities. Neglect of the pres-
ent order shall be punished by loss of rights to the water.
"ART. 11. No changes of any kind shall be effected but under the
orders of the magistracy, executed by the prefect or vice-prefect.
"ART. 12. The conservators of the different irrigating associations
are enjoined to watch over the efficiency of the works under their
charge. They shall make an annual inspection, and submit a report
on the works to the congregations of their respective associations,
indicating. all the repairs or new structures required, and estimating
the probable expense thereof. The visits shall be made during the
first days of the month of February, and the congregation shall be
held about the middle of the same month. By which means all
needful repairs may be completed about the middle of April, when
the demand for water arises.
"ART. 13. The conservators shall be careful to clear the canal beds
of all water plants and weeds, causing them to be dug out by the
roots for some distance from the water's edge, throwing the refuse
clear of the embankments. If necessary, clearances of this class shall
be executed three times a year.
" ART. 14. All parties are enjoined to receive, and execute with
promptitude and good will, the orders of the conservators of the
different associations. Disobedience shall be punished by a fine for
each offense of 200 lire (about $30), which shall be increased at the
discretion of the magistracy; if any offense be committed a second
time by the same party, it shall be lawful to proceed against him
under the provisions of the municipal laws.
"ART. 15. The annual tax shall be paid by all parties within the
time prescribed by the congregations, and defaulters shall be pro-
ceeded against without further notice.
"ART. 16. Parties not possessing legal rights to irrigation shall not
use, even to the smallest extent, the waters of the canals. The first
offense against this rule shall be punished by a fine of 1,000 lire
(about $150), with forfeiture of all the irrigated produce, and com-
pensation to parties injured by the misappropriation of the waters.
The second offense shall be punished by the confiscation of the land
illegitimately irrigated.
"ART. 17. We reserve to ourselves the right to make grants of
200 ITALIAN IRRIGATION LEGISLATION.
water for irrigation; and we hereby declare, that if it should conic to
our knowledge that arable or forest or meadow lands have been
broken up for the purpose of creating rice-fields, in excess of those
fixed by considerations of public police, and duly limited thereby.
the grants thus abused shall be revoked; and we give notice that we
will not in future allow any new rice cultivation to be established,
until it has been proved to our entire satisfaction that the lands to be
so employed are all in such low lying localities as to be unfitted for
use under any less injurious kind of cultivation.
"ART. 18. In making grants, we do not thereby vest in the grantee
the right of property in the water, but only the right to use it either
in irrigation or for hydraulic works. The right of property shall
remain as heretofore among the rights appertaining to the crown.
"ART. 19. In all grants for the use of water whencesoever derived,
from colature or from works, we maintain in full force the provisions
of existing agreements, in consideration of the benefits hitherto
derived from their observance.
* * 5fc * * :|: # * ^
"ART. 26. To insure the reform of abuses, and to protect the inter-
ests of the royal treasury, all employers of water shall be bound to
submit their titles, after due notice, to a deputation of officers, which
from time to time shall visit the canals, with full authority to inves-
tigate and dispose of all cases brought before them, according to their
judgment.
"ART. 27. The guards and police shall use all diligence in pro-
tecting the interests intrusted to them, and shall denounce all con-
traventions to the secretary of the magistracy of waters. In cases
of neglect, the offending party shall be declared incapable of again
serving the state; but if collusion or participation be established, he
shall be sentenced to imprisonment with hard labor for a period not
exceeding three years, according to the decision of the magisterial
chamber.
"ART. 28. The magisterial chamber shall determine all farther
provisions necessary to the execution of our laws, and shall decide
on all matters connected with the waters of the province." — [Smith,
Vol. II, pp. 208, et seq.
SECTION III.
ADMINISTRATION OF GOVEKN.M KXT CANALS.
THK ADMINISTRATIVE HrKK.U.'
Iii Piedmont, and also in Lombardy, the greatest irrigation works
were the property of the government.
Some of these great canals date from very early times; indeed,
their origin is quite obscure, except that it is known about when they
were built.
These works were maintained under the supervision of government
engineers, but, as a general thing, their revenues were farmed out in
*See, Smith, Vol. I, p. 120; also, De Bufiun, Vol. II, pp. 218-iii'o.
ADMINISTRATION OF GOVPJRNMENT CANALS. 201
bulk to some contractor or association, who received the waters at
certain outlets from the main distributaries, in large volumes, under-
took to distribute them to the consumers, collect the revenues, and
pay the government certain fixed sums annually for the privileges.
This financial system was open to and resulted in great abuses, tmt
with that phase of the question we are not concerned here.
There were also on these canals certain old water-rights, conceded
by former governments to consumers, for some consideration or serv-
ice rendered in years or centuries long gone by. Some of these rights
were free from rate paying, while others wrere subject to an annual
payment, generally at low rates.
But, however the waters were distributed, or under whatever right
of use or rate of payment, the works were the special charge of gov-
ernment engineers, and their maintenance, extension, and remod-
eling contributed to develop a service of unprecedented skill in
hydraulic construction and science.
Piedmont. — In the preceding section of this chapter I have spoken
of the care and regulation of public streams in Piedmont through
the services of the agents of the public domain. It now remains to
speak of the management of the public canals. These are in reality
great artificial public streams from wrhich private canals draw, and
considerable populations are supplied.
Their maintenance and general management was committed to the
care of the ministry of finance, as a separate trust from that of public
works generally, which were in charge of a minister of public works.
The fact that the canals were a property yielding a revenue to the
state in which the finance was more interested than any other bureau,
is advanced as the reason for this arrangement.
Attached to this ministry of finance was an office of works, which,
was the executive agency in charge of construction and maintenance
of the canals. The general management of the department was
intrusted to the intendant-general of finance, the chief executive offi-
cer under the minister himself, but the personnel of the service Vas
almost exclusively made up of civil engineers, of whom there were
about twenty, together with their assistants and subaltern helpers.
The duties of this corps were connected entirely with the profes-
sional and practical labor of construction, maintenance, and operation
of the works. The financial management and care of distribution of
the waters were under the control of the contractor or farmer of the
canal revenues, who ordinarily leased the waters in bulk for a period
of nine years, and then sublet the water privileges.
202 ITALIAN IRRIGATION LEGISLATION.
Thus, there was an entire separation between the executive man-
agement of the canal works and the business management of the
canal operation.
Under the engineers and their assistants there was a subordinate
organization of guards, or superintendents and overseers, composed
of one chief and thirty-five ordinary guards, whose .duty it was to
take local charge of the works. These were generally men of expe-
rience in the management of canal works, and they lived in houses,
built for the purpose, close alongside of their sections of duty. To
them were intrusted the keys of the distributing gates from the main
canals, and hence they were persons of considerable importance, and
not infrequently became skilled as practical hydraulicians.
Articles 359 to 367 of the " Instructions to agents of the domain,''
spoken of in the last section, contain provisions regulating the finan-
cial relations between this establishment and the lessees of the waters
of the canals.
Articles 630 and 631 provide for the duties of the engineers in con-
nection with the maintenance of main outlets for distribution, the
expense of which was to be borne by the lessees of the waters in each
instance.
Other articles prescribed in great detail the duties of the "agents''
and of the " engineers " who were the officers of the two lines of admin-
istrative operatives under the intendant-general of finance. Of these
duties, it is noteworthy that each agent and each engineer was required
to keep a daily journal in detail of all his official actions and observa-
tions, according to a prescribed form, and to return such journal in
duplicate with a summarized statement in the form of a report, also
in duplicate, to the intendant, monthly, who retained one copy and
transmitted the other to the intendant-general together with his obser-
vations. In addition to this, quarterly financial reports were requi red
from all officers or agents in charge of works, and professional reports
on the condition of works, from the engineers, also every three months.
The state, through the medium of this establishment, administered,
maintained, and operated the canals, giving out the waters to the
branch distributaries whence they were measured out, and the rents
collected by the employes of the farmer of the1 revenues, as elsewhere
spoken of. This system of farming the revenues to an individual, or
individuals, was done away with in 1854, when all the waters thitherto
thus disposed of were leased to the "Association of irrigation west of
the Sesia," as is explained in a subsequent chapter; and the system of
maintenance and operation of the works by government employes was
also done away with by the leasing of the canals themselves to the
ADMINISTRATION OF GOVERNMENT CANALS. 203
Cavour canal company, in 1862, also spoken of in detail hereinafter;
and, finally, the management of the works, again by the general govern-
ment of Italy, upon the failure of the Cavour canal company, remains
to be mentioned.
GOVERNMENT CANAL REGULATIONS.
Piedmont. — Returning to the times of Piedmontese administration
of the royal canals in the upper part of the valley of the Po, to carry
forward the subject in a complete manner, I transcribe the following
draught of "Regulations for the administration of the royal canals
of irrigation," under which the works were managed until turned
over to the Cavour canal company, and which constitute one of a
number of regulations incorporated into the " Instructions to the
agents of the domain," heretofore mentioned :
Regulation for the Administration of the Royal Canals of Irrigation.
Of the maintenance of canals.
"ARTICLE 1. All the royal canals of -the kingdom are subjected to
the present regulation.
"2. The general control of the royal canals is vested in the agency-
general of finance, the executive duties being performed by engineers
and guards appointed by it.
"The latter, with the guards appointed by the farmer of the canal
revenues, shall take an oath of fidelity in presence of the judges of
their respective districts.
" 3. The engineers and guards are charged to prevent all interfer-
ence with the waters, works, and employers of the canals.
"4. The articles of the regulation of the twenty-ninth of May, 1817,
are maintained in full force.
" 5. No one unprovided with a legal grant or right can make any use
whatever of the canals; and any interference with the free course of
the waters in the main channel or branches thereof is forbidden. Vio-
lations of any part of this article shall be punished by a fine of from
50 to 150 lire (from $10 to $30) for each offense, in addition to compen-
sation for damages.
"6. Parties having a legal grant of water, but taking more than the
quantity they are entitled to, or using at a different hour from that
specified in the agreement among the employers of a common chan-
nel, or violating in any other way the terms of their grants or agree-
ments, shall be subject to a fine of from 50 to 100 lire ($10 to $20), in
addition to compensation for damages.
"7. Whoever shall raise or lower the gates of the outlets or escapes,
alter, break, or deface the chambers of the works of measurement,
force the locks of the same, or change their dimensions, shall incur a
fine of from 150 to 300 lire ($30 to $60), in addition to the amount
payable for damages. When the offense is perpetrated on crown
property, the pecuniary fine shall be accompanied by imprisonment
for a period varying from one to six months.
" 8. Employers of the canals shall maintain their irrigation outlets
and channels in forms prescribed by their grants, under a penalty of
from 50 to 100 lire.
204 ITALIAN IRRIGATION LEGISLATION.
"9. The water flowing from irrigated lands, commonly called coli
(colatura), shall be permitted to enter the canals freely, except when
special agreements to the contrary have been entered into, under a
penalty of from 50 to 100 lire, in addition to the price of the waters
intercepted.
"10. It is forbidden to fish in the canals, or to excavate sand from
them, or to use boats on them at any time, under a penalty of from
10 to 30 lire.
"11. The agency-general of finance may permit fishing, naviga-
tion, or excavation of sand, having first procured the opinions of the
engineer and the director of the domain. Such permission ought to
indicate clearly the portion of the canal to which it applies. It can
be granted only for a period of not longer than one year, and is null
and void unless registered by the grantee at the office of the direction
of the domain, and of the local secretariat of the province.
"12. It is forbidden to establish, without the authority of the agency,
bridges, fords, or ferries, and, also, to cross the canals, either on foot
or with cattle, under a penalty of 10 lire, in addition to the expense
of destroying works executed in contravention of this article.
"13. (Repeats the above with respect to minor works.)
"14. Whoever takes possession of land along the canals which
belongs to the royal domain, removes the landmarks, makes exca-
vations, carries away the produce of the plantations, or traverses the
banks with cattle, carts, or conveyances of any kind, shall incur a
fine of from 5 to 10 lire for each offense, in addition to the repair of
any damages which may be caused, or to the cost of the things car-
ried away.
"15. The possessors of land fronting or adjacent to the canals are
forbidden to open new springs, to excavate ditches, to form ponds.
water-courses, or channels of any kind, within a distance of 200
metres (nearly 220 yards) from the said canals, except in such cases
as may be specially decided upon by the engineers, who will then fix
such distances as may seem to them sufficient to prevent any leakage
of the waters of the canals into the works referred to.
" It is also forbidden to the aforesaid possessors of land to plant trees
within a distance of 3 metres (about 31 yards) from the boundaries of
the canals. Infringements of this article shall be punished by a fine
of 10 lire.
" 16. It is forbidden to cut the trees on the canal banks, or to carry
away the prunings of the same, under penalty of a tine equal to double
the value of the trees or prunings. If the trees cut and carried away
shall exceed the value of 25 lire (about S5), the offender shall be
imprisoned for not less than one month, in addition to paying the
fine as above.
" 17. Parties acquiring by legitimate titles any right to the plan-
tations along the canals, shall not be allowed to cut or prune them
except at the times and to the extent specified by the engineers in
charge.
" 18. All parties are forbidden to pasture cattle on the banks of the
canals at any period of the year, under a penalty of from 1 to 3 lire
for each animal."— [Smith, Vol. II, pp. 307-310.
Lombardy. — In Lombardy the organization and regulations affect-
ing the government canals was substantially the same as in Pied-
mont, so that there would be nothing added to the useful data of this
ADMINISTRATION OP GOVERNMENT CANALS. 205
report by introducing here anything specially relating to this branch
of our subject for that country.
Italy. — Upon the unification of the Italian government, all the
public canals of Lombardy and Piedmont, not leased to the Cavour
canal company, were given over to the charge of the ministry~of
public works for all Italy.
Something will be seen of the management of a portion of these
in a subsequent part of this report, and as it is substantially that fol-
lowed by the Piedmontese government, with the exception of the
different and broader organization of its administrative department,
it is unnecessary to refer in detail to it here.
AUTHORITIES FOR CHAPTER X.
In the preparation of this chapter I have consulted and compared the following named
authorities:
De Bufton.—[Work cited as an authority for Chapter IX.] See, Vol. II, B. VII, Ch. 39, Divs. I
and II: Ch. 40, Div. I; Ch.41,Div. I; B. VIII, Ch. 45, Div. I; and elsewhere as cited.
Smith.— [Work cited as an authority for Chapter IX.] See, Vol. II, P. VI, Ch. I, Sees. I and V ;
Ch. II, Sees. I and V; and elsewhere as cited.
Sardinian Code. — "The Civil Code of the Kingdom of Sardinia." Edited and annotated by A.
Boron, Advocate, etc., 2d ed. Turin, 1857.
Italian Code. — "The Civil Code of the Kingdom of Italy." Edited, annotated, and compared
with its predecessors, by Domenicantonio Galdi, Advocate, etc.; Roy. 8vo., pp. 1,400;
Naples, 1865.
Ency. Brit. — Encyclopedia Britannica. Ninth Edition. Article, "Italy."
Letters, etc. — Letters from the late Hon. Geo. P. Marsh, U. S. Minister to Italy; dated at Rome
and Florence in 1882, and addressed to the writer hereof, in answer to letters of inquiry
on the subjects of this report.
CHAPTER XI— ITALY"';
REGULATION OF IRRIGATION PRACTICE.
SKCTION I. — Distribution and Measurement of Waters.
Hydraulic Science and Practice.
The Problems of Distribution and Measurement.
The Piedmontese Legislation — Sardinian Code.
Remarks on the Sardinian and Italian Codes.
Distribution by Volume, by Use or Service, and by Time.
SKCTION II. — The Eights of Irrigators.
To a Continuance of Water Supply.
The Right in Piedmont.
The Right in Lombardy.
To the Use of Spare Waters.
The Sardinian Code.
The Italian Code.
SKCTION III. — Obligations and Rights of Irrigators and Canal Men.
Obligations Concerning Water Supply and Use.
Piedmont, Lombardy : all Italy.
Priority of Privilege in Distribution.
Piedmont: all Italy.
SECTION I.
MEASUREMENT AND DISTRIBUTION OF WATERS.
HYDRAULIC SCIKNCK AND PRACTICK.
Until within very recent years, when there has been much activity
and emulation in the perfecting of means and methods for the eco-
nomical and exact measurement and distribution of waters in irriga-
tion in France, in British India, and also on some special works in
Spain, the works and regulations designed for the consummation of
these ends in northern Italy have stood alone as evidences of an
attempt at the systematic application of scientific principles to the
details of an extended and complex practice of the art of conducting
and measuring water in open channels for irrigation.
Commencing in the centuries that have. passed, hydraulic science
developed with the advance of irrigation and drainage practice in
MEASUREMENT AND DISTRIBUTION OF WATERS. 207
Italy. For a long time this was its repository; and out from this
country it subsequently spread.
" With the revival of knowledge in Italy, the art of hydraulic
engineering was called into existence, and the extensive demand for
skill in its details created early a supply of men familiar with all of
these. Hence the remarkable number and great talent of the execu-
tive engineers, by whose exertions, rewarded and stimulated by their
wealthy and powerful employers, that vast network of irrigation
channels was spread over the entire surface of the country." — [Smith,
Vol. II, p. 135.
The physical, social, and political conditions of northern Italy alike
contributed to the growth of this science: The difficulty of tapping
the chief sources of water supply, except by means of great works,
requiring skill and technical knowledge to plan and construct; the
necessity, produced by climatic and hydrographic circumstances, for
making these works most substantial, and, consequently, costly ; the
complexity of the natural water supply system, and the confusion as
to water claims which had grown up; the absence of system in the
earlier works and projects; the consequent extreme complexity of
works; the great value of water in irrigation; the wide destruction of
property occasioned by waters of floods; the alarming unsanitary
results of unskillful irrigation, insufficient drainage, and injudicious
embanking of lands; and the natural outgrowth of confusion and
litigation which resulted, made the necessity for men at once in com-
mand of scientific knowledge and practical skill in hydraulic work.
In following out the systemizatioii of irrigation works and practice
in that country, not only have the main works for the diversion and
conducting of waters been in charge of those trained and educated
to the task, but the practical studies and applications in the most
minute details of distribution and measurement of waters have been
equally committed to the care of specialists.
" Under this system, it is astonishing to see the extent to which
minor canals have been executed. The whole surface of the country
is covered by them as by a dense net-work. At all levels, and by the
use of various ingenious works, they pass over, or under, or through
each other, in such a way as to preserve individual rights uninter-
fered with, though the result to outward appearances, is a system of
such marvelous complexity as to make the observer conclude it must
lead to interminable disputes." — [Smith, Vol. I, p. 41.
We should, hence, expect to find, and we do find, that government
itself has done much towards the advancement of knowledge and.
skill in this practice. In Piedmont, for instance, not only was there
an establishment of civil engineers in the employ of the government
and in charge of all public works, and having supervisory duties con-
208 ITALIAN IRRIGATION LEGISLATION.
nected with water-courses and works relating thereto, but the study
and private practice of the profession itself was the subject of state
solicitude and aid.
"The economical importance of irrigation in Piedmont has natu-
rally induced the government to furnish all practicable facilities for
its study. The education of the hydraulic engineer is conducted with
care, and no one is allowed to practice the profession without having
graduated regularly at the university of Turin." — [Smith, Vol. I, p. 12.
That government established and continuously maintained stations
for experimenting on and observing the flow, measurement, and dis-
tribution of waters, which were attached to the educational institutions
and made accessories to instruction in hydraulic science, so that an
education as an hydraulic engineer was, in that country, eminently
practical as well as theoretical in its course and results.
The civil engineers were graded, according to their attainments, as
hydraulic engineers, civil architects, and surveyors or land measurers.
and no one not specially qualified for the higher rank of hydraulic
engineer was permitted to practice that branch of the profession.
Such the men to whom were confided the works of irrigation in
Lombardy; such the care with which men for this service wen-
trained in Piedmont; and now the Italian government equally
encourages the hydraulic art and science by means similar, and,
hence, the details of the Italian system and the rules of practice and
principles of law attending and governing that practice, are well
worthy of study.
THK PROBLEAfS OF DISTRIBUTION AND MKASf KKMKXT.
Next in order to those great complications and contentions which
with irrigation enterprise are developed between governments and
the grantees or employers of water for irrigation, between differ-
ent grantees or employers, and between these and riparian pro-
prietors, come questions which grow out of the relations between
those who have water to distribute and those who want it to use —
between the canal owners or managers and the irrigators.
Here are encountered the problems of equitable distribution and
accurate measurement.
Water is contracted for and delivered in irrigation under three
general systems of reckoning: the first, delivery to irrigate any cer-
tain crop or area of land for the season or for the time; the second,
delivery of some certain quantity of water; the third, delivery of
some certain flow of water for a certain period of time.
The contentions which arise and the sources of dissatisfaction with
results, to both the canal or water man and the irrigator, under each
MEASUREMENT AND DISTRIBUTION OF WATER. 209
of these systems, will form the subject of a chapter in another part of
this report, so that it is sufficient simply to call attention to them here
as being the moving cause of much solicitude and study in all well
settled irrigation regions.
Irrigators generally, in the older irrigation countries, prefer_the
system whereunder they can have measured out to them a fixed quan-
tity of water at certain periods of time, and then have the liberty to
do with it as they choose. The difficulty of accurate measurement,
under the very many and varying conditions attending the delivery
of water, in new countries prompts and often makes necessary the
adoption of the other systems.
In the measurement of waters two distinct ideas are to be held in
view. These are: what unit of measure is to be taken; and, what
means of measurement are to be adopted.
All civilized countries have a system of weights and measures appli-
cable in the meting out of ordinary merchantable commodities and
lands, but few have any established system for the measurement of
waters. Such a system grew up in northern Italy, or, rather, several
such systems found birth and development in the various provinces or
petty states of the valley of the Po.
These systems were far from perfect, as we may view them now
from the standpoints of an advanced hydraulic science, but they
served a most useful purpose, and were the starting points from which
irrigation engineers have sought to advance in other countries.
We find the laws and regulations of irrigation referring to certain
standard measures and measuring apparatus, and, in view of what
has preceded, we are prepared to appreciate their meaning, without
going further at this time into the definite interpretation of these
standards to those of our own country.
THK PIEDMONTKSK LEGISLATION — SARDINIAN CODE.
In Piedmont water was distributed under three systems of delivery.
The first , according to the quantity stipulated in actual volume; the
xecond, according to the use, or the area to be irrigated; and the
third, according to the time or season for which a flow was engaged.
These different methods of delivery necessitated as many types of
agreement, and each gave rise to its class of questions, so that legisla-
tion was demanded by which to regulate the contests that were
brought about.
And hence we find in the Sardinian code the articles which here
follow, and which were the outcome on the principal points of the
experience theretofore had in Piedmont.
14 "
210 ITALIAN IRRIGATION LEGISLATION.
Articles of the Sardinian Code.
"ART. 641. In future when an agreement shall be entered into for
a constant and determined quantity of running water, and the agree-
ing parties shall settle between themselves the form of the outlet or
structure of derivation, then that specific form only shall be re-
tained. The parties concerned shall not be permitted to impugn
its correctness on the ground either of excess or deficiency of supply,
unless such difference in either way shall exceed one eighth of the
quantity agreed upon; and the action shall be instituted before the
expiration of three years from the time when the work was first
brought into use; always excepting the case in which the increase or
deficiency of water may arise from changes in the supplying canal
itself, or in the volume of the water flowing in it.
" If, in the absence of any agreement for a specific form, the out-
let in actual use shall have been peaceably possessed and employed
for the space of ten years, no complaints regarding either excess or
deficiency of water shall be entertained, excepting in the case of vari-
ations in the supplying canal, or in the course of the water flowing
therein, as above specified.
" In default of any agreement regarding the form of the outlet, or of
possession, the £orm shall be determined by the tribunals, on the
judgment of professional men nominated by consent between the
parties, or if they cannot agree, by the tribunals themselves.
"ART. 642. When grants of water made for a specific service or
object, do not express in terms the quantity granted, they shall be
held to accord that volume which is necessary for the fulfillment of
the said service or use. It shall be lawful for the parties interested
therein to fix, at any time, the form of the outlet, and so to limit it
as that the grantee shall receive the volume sufficient for the service
agreed upon, but nothing more.
"When, however, the parties shall have agreed to give a definite
form to the orifice of discharge or the outlet, or, in default of an
agreement, there shall have been a peaceable possession of such form
for the period above defined, objections to the same shall be admitted
only in the cases and within the periods established in the former
article.
"ART. 643. In new grants of water wherein a constant quantity
of running water shall pe agreed upon and specified, the said quan-
tity shall be expressed in all public acts in terms of the ' module of
water.'
"The module of water is that quantity which, under simple pres-
sure, and with a free fall, passes through a quadrilateral rectangular
opening, so placed as that two of its sides shall be vertical, with a
breadth of two decimetres, a height of two decimetres, and opening
in a thin plate against which the water rests, and is maintained, with
its surface perfectly free, at a height of four decimetres above the
lower edge of the opening.
" ART. 644. The right to a constant supply of water exists at every
moment.
" ART. 645. The right to summer water (aqua estiva) exists from the
equinox of spring to that of autumn; to winter water (aqua jemale]
from the equinox of autumn to that of spring; and for water dis-
tributed at intervals of hours, days, weeks, months, or otherwise, for
the time agreed upon or possessed.
MEASUREMENT AND DISTRIBUTION OF WATER. 211
"The distribution of water by days and nights is regulated by the
natural day and night.
"The use of water on holidays is restricted to such holidays as were
in legal existence at the time when the agreement was originally
made, or actual possession of the water obtained.
"ART. 646. In distributions of water made by horary rotation-, the
time necessary for the water to flow to the outlet of an employer
thereof shall be included in his period of rotation; and the water
which passes down the common channel at the changes of the rota-
tion belongs to the employer with whom the rotation terminates.
"ART. 647. The water which rises or leaks into the bed of the
canal, subject to the distribution by rotation adverted to in the pre-
ceding article, cannot be stopped or appropriated by an employer,
except at his own proper period of the rotation."
REMARKS ON PIEDMONTESE AND ITALIAN LEGISLATION.
Reviewing this legislation, we notice certain leading points bearing
on each of the systems of delivery or distribution that have been
mentioned.
FIRST SYSTEM — DISTRIBUTION BY VOLUME.
(Sardinian Code, Article* 643 and 641; Italian Code, Articles 622 and 620.)
The Sardinian Code. — First, with respect to the delivery of water
by definite volume or quantity: The Sardinian code fixed a unit of
measure for general adoption, which it called a module, and defined
it as the quantity which would be measured out under certain simple
conditions specified. And it provided that in all new grants or trans-
actions concerning the delivery of waters by quantity, the amounts
should thereafter be expressed in terms of this legal standard. (Art.
643.)
But the delivery of water in greater or less volume than the one
module, for which the dimensions and character of orifice and head
of pressure were given (Art. 643), of course necessitated the adoption
of openings of different sizes, and the circumstances under which
water was to be delivered, likewise made necessary, in different cases,
its delivery under varied heads of pressure, and, hence, while the
standard amount was fixed as a unit, the means of measuring out any
number of such units or fractions thereof were left undetermined,
and thus relegated to the field of hydraulic practice and that of agree-
ment between the parties to the contract. (Art. 641.)
Providing for these cases, which, of course, really comprised nearly
the whole practice, the law (article 641 ) left the choice of the form
of the outlet of derivation to the parties to the agreement, but it
held each to such choice, should the other insist, unless it could be
shown that the resulting measurement was in error by an amount
exceeding one eightli of the quantity contracted for. By this provis-
212 ITALIAN IRRIGATION LEGISLATION.
ion it was desired to prevent litigation over trifling, amounts of
water, and to promote care and insure greater accuracy in the pre-
liminary determining of the conditions of measurement for each case,
This stipulation of a margin of one eighth for error, it was thought,
was made advisable by the necessarily imperfect application of
hydraulic rules, in the thousands of varying forms and dimensions of
structures that circumstances would compel the use of. So the results
of experience were called on for a guide, and the limit of an eighth
of the desired amount of flow was held to be sufficient to include the
variations likely to occur.
OPINIONS OF GIOVANKTTI, DE BUKFON, AND SCLOPIS.
M. de Buffon, in commenting on this legislation, quoted from a
Piedmontese writer, who is generally referred to as having been a
high authority upon these matters, and I reproduce his remarks here:
De Buffon says: "M. Gipvanetti, of Nova re, a lawyer specially well
versed in the questions which affect irrigation, has drawn up a learned
work, in which he passes in review in a comparative manner all the
Piedmontese legislation on this subject. In this work he expresses, on
the subject of the module of water adopted in this country, an opinion
similar to the two preceding. He makes amongst others the follow-
ing observations:
"'In our article 643 (Sardinian code) there are indicated perfectly
the conditions of a uniform supply; but in practice then- arc physical
circumstances which rule, and it is necessary to content oneself with
the least defective or the most practicable method. The essential
was to establish a unit, to sanction a result without prescribing a fixed
form. The law could not make prescriptions upon the form. They
are in the domain of hydrometry, and can vary infinitely, either in
accordance with local circumstances or in accordance with the prog-
ress of art.
" 'Article 641 gives to the contracting parties the express liberty of
making agreements upon the form of the orifice and the structure of
derivation. These are they, then, who ought to settle accounts; and
if the cultivator does not know how many cubic metres of water run
through an opening of fixed dimensions, he knows very well what
are the advantages which he can derive from this water in practice.
The seller, on his part, also makes his calculations, and he bases them
on the greater or less competition, and upon all the elements of the
value of the water in a given locality. These reciprocal reflections
determine the contract. An outlet is not constructed until an expert, (
in whom both parties have confidence, goes to the place and makes a
report, submitted to the examination of the interested parties.' "— [De
Buffon, Vol. II, p. 192, quoting Giovanetti.
De Buffon himself thought that a unit of measure should have been
fixed at some universally recognized volume, and that the form and
dimensions of the outlets for a considerable range of cases should have
been determined by governmental action— by a ruling of the admin-
MEASUREMENT AND DISTRIBUTION OF WATER. 213
istrative department — and, hence, he criticised the Piedmontese law;
but the reason for this shortcoming is well set forth by another author
whom he quotes. The count Sclopis, member of the senate of Turin,
who, in a memoir communicated to the Academy of moral and polit-
ical Sciences, of Turin/ said :
" ' The Sardinian law has held a just middle course upon this point,
by having due regard to ancient customs and acquired rights. In fix-
ing the new unit with conditions, which, if they are exactly observed,
correspond to a well determined discharge, it has deemed it conve-
nient to confine them to the two most important: that is to say, the
dimensions of the orifice, and the stipulation that the water must flow
through it by simple pressure.
"'Apart from these two principal conditions, it has presented noth-
ing, either on the form of the measuring apparatus, or on the nature of
the precautions to be taken to maintain the constant and uniform
pressure. In doing this, it has aimed not to tie itself to the results of
generalized experiences, nor to fetter the progressive march in the
application of hydraulic science with the ever varying circumstances
of time and locality.'" — [De Buffon, Vol. II, p. 193, quoting Sclopis.
From this we see that regard for "ancient customs and acquired
rights" stood in the way of what was really the right thing to do, in
the establishment of a system of water measurement for the country;
and we see an evidence of the difficulty of changing "ancient cus-
tom," even if it is wrong, in irrigation practice; and we note how far
"regard for acquired rights" may influence or prevent legislation
that it is supposed will affect such rights, even when, in truth, the
effect would be to their benefit, if they were held on a just basis, and
even when the proposed measures are in reality the right ones for all
concerned. And we should learn, even from this small matter, how
dangerous it is to allow rights to grow up, unregulated and unrecorded
in intelligible form, for it will be seen later that Italy afterwards felt
obliged to do in this matter what Sardinia failed to do, but what De
Buffon thought should have been done years before. But, the Sar-
dinian legislators, if not clear on the matter of water measurement,
certainly understood the importance of having the extent of rights
known as fully as possible, according to their unit of measure, such
as it was.
IMPORTANCE OF SETTLED CONDITIONS.
Taking up the next point concerning this system of "Distribution
by Volume":
Piedmont — The Sardinian Code. — Experience had taught the embar-
rassments which arise in the management of hydraulic works, in con-
sequence of the long continued existence of questions open even to
the extent of this small marginal limit. So, considering three years
214 ITALIAN IRRIGATION LEGISLATION.
to be sufficient time in which to test the working of an outlet, the
framers of this law inserted the clause barring all appeal from an
agreement as to the form and dimensions of a measuring opening,
when such three years from the time of commencing its use should
have passed, even though the variation in the amount delivered, from
the agreed upon quantity, exceed the one eighth limit (article 641).
But it was also well known that the discharges of such outlets
were necessarily calculated for nearly fixed conditions in the canal
of supply, and that any material variation in such conditions would
produce a decided variation in these discharges, and hence it was
provided that the right of appeal from an agreement concerning the
form and dimensions of an opening to deliver any certain quantity of
water, should hold good in all cases and for all times, should the
normal flow or regime of the canal of supply at the point of the out-
let be materially changed in any way (Art. 641). Here again the
whole subject was thrown into the domain of hydrometric practice,
and the courts had authority vested in them to appoint a hydraulic
engineer to expert each such case which caused contention.
Lombardy. — The difficulty of dealing with acquired rights, and the
way in which the best measures are put off because of the fixity of
ancient customs in the practice of irrigation, is still further attested
in connection with this subject of measurement of waters, by the
Lombardian experience.
Articles 13 and 14 of the decree of 1806 treated the matter in this
way:
" Until there has been established a uniform measuring apparatus
and a common unit for the gauging of waters the construction of
regulated outlets are continued to be made according to local usages."
" In provinces where no fixed measuring apparatus, whatever is
in use, the direction-general shall determine on one which must
be in accordance with the local circumstances."
Now there had grown up in every one of half a dozen or more dis-
tricts of this province a local system of measuring waters, and they
were one and all defective, and the engineers of the country knew
this and so represented it, but, local prejudice was such that, so long
as Lombardy remained in this respect independent of the rest of
Italy, these differences were never reconciled and there never was
any definite unit of measure adopted, although the practice was
gradually better understood as the engineers succeeded in introduc-
ing better forms of apparatus and experimenting in their results.
MEASUREMENT AND DISTRIBUTION OF WATER. 215
The Italian Code. — Attention is now asked to articles 622 and 620 of
the new Italian code (see appendix II), which correspond to the arti-
cles 643 and 641 of its predecessor, the Sardinian code, upon which
comments have been made.
It will be seen that in these two articles the new code for all-Ita4y
follows the old code for Piedmont, and other parts of northern Italy,
in general principle, but differs materially in the expression of some
of its details.
Article 622 of the Italian code, following 643 Sardinian code, pre-
scribes a legal "module," and makes its adoption for the future
obligatory in all agreements concerning waters; but instead of denn-
ing this module only as an amount of water which would pass out of
a certain orifice, with a certain pressure, it gives it a fixed and
determined volume for all cases, and says "it is a body of water
which flows with the constant volume of 100 litres per second," and
for subdivisions it may be "divided into tenths, hundredths, and
thousands."
Thus after thirty years of trial the views of De Buffon, first
expressed in the early part of the period, are shown to have been
sound, by the Italian government doing in this particular substan-
tially what he said the Sardinian government should have done.
Article 620 of the Italian code corresponds to article 641 of the
Sardinian, and follows it quite closely in all but the clause concern-
ing the limit of one eighth, allowable as an error in measurement
before an appeal from an agreement might be taken.
This clause the Italian article leaves out altogether, thus testifying
to the fact that hydraulic science had in the meantime advanced so
much that there was no longer any reason for any such provision : if
the parties to an agreement concerning the delivery of a stipulated
volume of water had the orifice for its delivery properly calculated
and adjusted according to the present state of the hydraulic science, it
should be correct so long as the conditions of the canal and water
supply remained the same, and there should be no margin allowed,
no possibility of error forecast, and no appeal from the agreement;
and if they did not have the calculations and construction properly
made at first they ought to be made to stand by the agreement and
structure as it was. Such appears to have been the reasoning of the
framers of the new code.
216 ITALIAN IRRIGATION LEGISLATION.
SKCOND SYSTEM — DISTRIBUTION BY USK OR SKKVICK.
(Sardinian Code, Article 642; Italian Code, Article* <>2I, 653, 654.)
The provisions thus far spoken of were for cases wherein water was
to be delivered under agreement in a certain volume through a speci-
fied outlet. The second and third paragraphs of article 641 ma« It-
pro vision for settlement of disputes arising under agreements wherein
no particular form of outlet was specified, which cases could only
come up under agreements made before the passage of the law under
consideration, for after its passage all contracts concerning water dis-
charges had to be drawn in terms of the standard module, and the
form and dimensions of the proposed outlets were required to be writ-
ten in the agreement, else it would not be legal and binding on either
party.
For these cases to come up under old agreements, in consideration
of the embarrassments before mentioned as resulting from the long
continuance of open questions as to measurement, yet to allow ample
time for their adjustment and not to bar cases of recent development,
the time in which an appeal from an agreement might be tak.-n was
fixed at ten years, with, however, the reservation of right to appeal
at any time, for reasons heretofore given, should a variation of dis-
charge be occasioned by a change in the canal of supply or in its flow
of water.
And, finally, this article 641, and for this class of cases wherein no
agreement should have been made as to the form of outlet, distinctly
provided for judicial decisions to be based on the judgment of hydrau-
lic engineers, nominated by agreement between the parties to the
contest, or, if they could not agree, then wholly by the courts. The
full significance of this provision becomes apparent when we know
that, under other general provisions of law in Italy, the number of
expert witnesses which may be summoned in a case is limited accord-
ing to the character and importance of the case, and the judge has
discretion to say how many such witnesses shall be admitted in all.
Hence, for the cases under the above provision of the article 641, the
judge having named the number of experts that might be called, the
parties were allowed to agree upon them, and the judge was to be
guided by their report as to matters of fact and scientific and practical
deduction; but, should the parties to the contest fail to agree upon
the experts, the court was given the power to appoint them.
This was a wise provision, growing out of a long range of experi-
ence in contests over hydraulic questions of the most complex kind.
The effect was to -raise the character and standing of experts in such
MEASUREMENT AND DISTRIBUTION OF WATER. 217
matters. As we have seen, none but registered and proven engineers
were permitted to practice the profession; and such pro visions of law
protected the profession from the debasing influences of the partisan
rivalry between the litigants. The hydraulician was made the judge
of the science and art in the case, and was not permitted to appear as
the partisan witness of either the one or other party to the contest, as
unfortunately is the case in our American system of experting. To
conduct such cases there were lawyers trained in physical science and
hydraulics, called engineer advocates. The engineers were (and still
are in such matters in all Italy) the court referees and advisers for all
scientific matters of fact and opinion.
The Sardinian Code. — Passing on to article 642, we find here cer-
tain provisions relative to the cases wherein water is delivered under
the second arrangement — that according to its use or service, or the
area to be irrigated.
The law provided for this case that when an agreement had been
made for water to perform any certain service, as for instance the
irrigation of any specified crop or determined area of land, and mean-
ing for one irrigation, or more, or for one season or year, or more, as
the case might be, then the contractor should be obliged to deliver
that quantity of water necessary for the purpose. And, in case of con-
tests coming up on this point, this quantity was in practice deter-
mined, according to the facts and the results of experiences in point,
by the courts, upon the evidence of experts chosen by the parties to
the suit, as might be allowed by the court, or by the court itself, if no
amicable agreement could be arrived at.
But to avoid the precipitation of contests on this point before the
courts, the law provided for an amicable adjustment of disputes by
the fixing of an outlet such "that the grantee shall receive the volume
sufficient for the service agreed upon, but nothing more."
After what has been said in commenting upon article 641, the sec-
ond paragraph of article 642 does not call for remark. It is apparent
also that all the provisions of article 642 were intended for cases that
would arise under agreements made before the passage of the law,
for, as we have seen after its passage, only the one form or arrange-
ment for delivery — that according to actual volume expressed in
terms of the standard module — was to be considered lawful.
The Italian Code.* — Article 621 of the Italian code corresponds to
that (642) of the Sardinian last commented upon, and follows it
closely in meaning, although not in wording, with one
, Appendix II.
218 ITALIAN IRRIGATION LEGISLATION..
that the limit of time during which an agreement may be appealed
from when the works for an outlet shall have been peaceably used as
built, is reduced from ten to five years.
On this point of distribution by use or service rendered, the Italian
code contains a very important provision not found in the old code
for Piedmont. It is embodied in articles 653 and 654, and is to the
effect that when an agreement has been entered into to furnish water
to irrigate any certain area of land or any certain cultivation, or for
any fixed purpose, with a stipulation that the drainage waters shall
belong to the party delivering the supply, then the user of the water
cannot change its use in a way to consume more or reduce the drain-
age waters in volume.
The reason for this rule is apparent when we know that, for
instance, on the same area of land some crops would require and
absorb twice as much water as others, the method of applying the
water being in each case suited to the cultivation.
And, furthermore, the additional matter in the new code provides
that the user of the water cannot divert and use again any portion of
the drainage waters escaping from the place of his use of the water
agreed for, on the plea of having increased the supply in any way.
If he has obtained water under an agreement for any expressed pur-
pose with the stipulation that the drainage water is to belong and be
at the disposal of the owner or controller of the supply with whom
he has contracted, then he must refrain from using the water for any
purpose than the one named in the agreement, and must let all the
drainage waters flow off as they naturally would, or as agreed upon,
whether increased from any other source of supply or not.
This provision, holding a user of water to the strict letter of his
agreement, has doubtless been made necessary in order to avoid con-
tests wherein the facts for evidence — as to increase of supply and
drainage from other causes or sources than the one agreed for — may
be very obscure and difficult of substantiation one way or the other;
and it has the effect of making the wording of agreements more
explicit, in order to cover all contingencies of practice in each case.
The following articles (655 and 656) of the Italian code do not refer
to waters furnished under agreements, but to those to which a right
has been attached as a servitude, and, hence, they will be spoken of
elsewhere.
THIRD SYSTKM — DISTRIBUTION BY TIME.
(Sardinian Code, Articles 644 to 647; Italian Code, Articles 623 to 626.)
'
The arrangements for delivery of water by actual quantity and by
service to be rendered, having now been spoken of, we come to the
MEASUREMENT AND DISTRIBUTION OF WATER. 219
provisions of the law, relating to the delivery of water by agreement
as to time.
In northern Italy irrigation goes on the year round, and, in fact, the
most copious irrigations are conducted through the winter, although
at that season the sky is much overcast, rain, or sleet rather, fre-
quently falls, snow is not uncommon, so that the upper part of the
valley of the Po is covered for weeks at a time with a snow mantle
a foot or more in depth, and standing waters are frozen to several
inches in thickness.
The irrigation at thi^ season of the year is that of meadows, or marcite
fields as they are called, and it is a practice of a high order in the art.
The object is to provide green food for the cows of the dairy farms
with which the country abounds, and for which it is remarkable, sup-
plying immense quantities of cheese and butter for export.
These meadows are formed after very exact methods, so that their
surfaces are shaped into long narrow ridges parallel to each other,
and of such longitudinal and transverse slopes that the waters applied
through a ditch situated along the crest of each ridge, spread out from
it laterally, flow in a thin sheet down each slope of the ridge Over
and through the grass there growing, and find exit longitudinally
by way of drainage ditches lying between each two such irrigation
ridges.
Thus in the coldest weather, with snow a foot deep elsewhere, the
surfaces of thes-e meadows are kept clear by the slowly moving film of
water over them; the ground is prevented from freezing, and the
grass kept green and growing, is cut from time to time and fed in
stables to the cattle. The waters of springs, or fontanili, with which
these plain lands abound, as elsewhere explained, being much
warmer, are preferred to the canal waters for this purpose of winter
irrigation, and command high prices at this .season, as indeed do
other waters as well, in some localities. Thus it is that there is a
distinct practice following through a stated season, known as winter
irrigation.
As in other countries, so, of course, in northern Italy, the season of
ordinary summer irrigation is well marked by the climate and the
requirements of the soils and the crops cultivated, and, thus, it comes
about that waters are contracted for in certain streams of flow or
amounts, as "summer waters" and as "winter waters," meaning for
the seasons of summer and winter irrigation.
Again, irrigation is conducted day and night, the twenty -four hours
around, summer and winter. Some persons contracting perhaps for
220 ITALIAN IRRIGATION LEGISLATION.
the use of water only in the daytime, others for its flow at night; and
hence the expressions "day water" and "night water."
And, in the wray of explanation of the technology of the articles of
the code which are to follow, finally, agreements are made for water
to be distributed amongst consumers by certain hours of flow to each
in rotation; and hence the expression "horary rotation."
Thus with respect to time there are arrangements (1) for summer
waters, (2) for winter waters, (3) for day waters, (4) for night waters,
and (5) for hourly waters; and to guide or prevent the contests which
might arise under agreements for such waters, the Piedmontese (Sar-
dinian) code contained the provisions found in the foregoing articles,
644, 645, 646, and 647.
The Sardinian Code. — And now, commenting upon these rules, we
find in article 644, a declaration as to the rights, when an agreement
had been entered into, to deliver any certain "flow of water" for any
definite or indefinite period of time, to the effect that so long, and for
every moment, as the time exists, the right to the flow existed: unless
there had been a reservation in the agreement, whereby the flow
might be checked at some time, the obligation to deliver continuously
under this form of arrangement had been incurred, and this article
recognized it.
Passing to article 645, concerning summer and winter waters, etc.,
after what has been said by way of introduction to these rules, no
comment is necessary here; except to call attention to the fact that
the law carefully defined the application of these terms, thereby
removing much cause for misunderstanding of agreements.
Article 646 treated of a point which had given rise to much dis-
pute— the question as to whom the tail end of a water supply belonged,
when, after the stipulated hour for change had arrived, the stream
was to be switched off on to the property of another user.
For instance, time is kept for distribution, by a time schedule, of a
certain stream of water to different users of it in irrigation, at the
head of a distributing ditch. The consumer has a right to it for two
hours, or any other stated time, and the question is — to whom does
the water belong which is in the ditch, on the way down, when the
gate is closed at the head of the ditch, at the end of the time of the
turn.
This flow is called by the Piedmontese the "tail of the water" (coda
dell' acqua}, and the article now under consideration said that it
belonged to the consumer who last had the use of the stream.
On this point, Baird Smith says:
MEASUREMENT AND DISTRIBUTION OF WATER. 221
" Until this point was settled by the code, it was occasionally in
dispute, whether the loss of time due to the passage of the water from
the canal of supply to the distributing gates to the different employ-
ers, should be borne' by the proprietor of the canal or by the con-
sumers; it is established as a general rule that, when the water passes
below the outlet of the common channel, any loss of time that may
arise shall affect the employers only, being borne by each in propor-
tion to his distance from the head, or from the outlet of the field
which precedes his in the order of the rotation."— [Smith. Vol. II, p.
288.
It has been elsewhere remarked, that much of the irrigated regions
of the valley of the Po are underlaid with water-bearing strata of
gravel, and that the cutting of canals through them often opens sources
of additional water supply to these channels. It is not infrequently
the case that such source yields a very material part of the volume
carried by a canal, and that, hence, it has a considerably greater
amount of water at a lower than at a higher part of its course; or,
that being a distributing channel, when the water is shut off at its
head, it still continued to have a flow derived from springs in its
bottom.
The right to use these waters was a subject of contention— employ-
ers below claiming that they did not belong to the canal or ditch
owners; so, as the result of these contentions, came decisions of courts,
which were incorporated into the code in article 647: The waters
rising in or leaking into a canal or ditch were held to belong to its
owner; and employers below could not use them except at their proper
hours and with the stream of distribution delivered to them.
The Italian Code.— Articles 623 to 626 (see appendix II) of the new
Italian code correspond to those of the former Sardinian code, last
commented upon, and follow them in principle and terms so closely
that a comparison of details is not called for.
In closing some comments on article 647 of the Sardinian code,
Baird Smith, writing in 1855, said:
" It is not uncommon in the irrigated districts of Piedmont and
Lombardy for parties to make mutual interchanges of their periods
of rotation. Special cases arise in which water is wanted at special
times by individuals not possessed of the right to irrigate at such
times. They, therefore, effect an exchange of period with other par-
ties, to whom an arrangement of the kind may be convenient, and,
though the law is doubtful on the point — some decisions being in
favor of, and others against, this proceeding— there does not appear
to be any valid objection to its use, if it be guarded by the provision,
that the other employers of the water-course* shall sustain no serious
damage by the manner in which it is carried into effect. An analo-
* Distributing ditches are called water-courses by the English writers on irrigation.
222 ITALIAN IRRIGATION LEGISLATION.
gous custom is common in India: the positions of outlets on water-
courses, held in common, are often changed, and so long as other
parties do not suffer by this, the interests of agriculture are certainly
promoted by its being freely made use of."— [Smith, Vol. II, p. 290.
As may be inferred from the above, there was no provision in the
Sardinian code, on this point, but now we find in the Italian code—
the outcome of longer experience — an article which covers the case,
as follows:
"ART. 627. In the same canals the users may vary or exchange
their turns among themselves, provided such changes cause no injury
to others."
%
Probably the author, Smith, was aware of decisions at the time of
his investigation already made and upon which this provision of the
later code was afterwards predicated; but, even so, it is an evidence
of close study of his subject that the rule was afterwards enacted into
law as nearly as possible in the words in which he said it should exist.
SECTION II.
THE RIGHTS OF IRRIGATORS.
(1) CONTINUANCK OF WATKR SUPPLY.*
In Italy, as in irrigating countries generally, where there has been
a clashing of interests between the owners of canals, or holders of
great water privileges, and the irrigators to whom the waters were dis-
tributed, special points come up. Many water-rights were established
there by grant and prescription, in times when from a troubled con-
dition of society, no thought was had of future agricultural masses of
people with interests to be protected. A water-right aristocracy grew
up; the canal owners claimed the right of absolute property in tin-
waters held by them, and undertook to do with it as they chose. If
they could get higher rents for it in one section of country commanded
by their canals than in another, which was occasionally the case, they
claimed the right to discontinue the supplying of irrigators where
water was cheap, after their annual or term agreement had been ful-
filled, and of leading it to the lands of those who would pay more
for it.
On the other hand, the irrigators claimed that they had expended
their means and labor in the building of distributing works and prep-
aration of lands to receive the waters, and being deprived of their
* See Smith, Vol. II, pp. 138-261; also, De Buffon, Vol. II, pp. 210-212, and elsewhere.
THE RIGHTS OF IRRIGATORS. 223
supply was equivalent to being debarred the use of their property.
They claimed that these water-rights were not rights of property in
the waters, as in the sense of ownership of land ; that the grants were
made for the good of the country and not for the exclusive benefit
of the grantees.
In Lombardy, these questions came to a head from time to time in
great struggles between immensely wealthy and powerful interests,
but it was only during the last years of the last century and the first
years of this, that they were well disposed of on principle.
The courts and senates rejected the claim of absolute ownership and
ultimate right of control set up by the water-right grantees and canal
men, and recognized the right of irrigators to the continued use of
waters which they had for a considerable time had at their disposal,
and to use which they had constructed distributing works and pre-
pared their lands; and several of the local senates decided that so long
as the irrigator paid the water-rates, he could not be deprived of the
use of the waters, and that a change in water-rates had to be fixed by
arbitrators, appointed by both parties at interest.
THK RIGHT IN PIKDMONT.
This was the law in Piedmont before the various petty governments
were set aside in the early part of this century, in the consolidation
of the kingdom of Sardinia. When the commission was forming the
Sardinian code, an article carrying out this principle was embodied in
its draft, and was agreed to by all of the local ruling interests to be
conciliated but in the case of the senate of Genoa, a locality where
irrigation was not practiced. Here it was insisted that the right sought
to be established was subversive of the rights of property; so the article
was stricken out of the draft of the code.
But it was subsequently held that the law had been established
and recognized for all existing irrigations, so that these were pro-
tected notwithstanding the failure to incorporate the article in the
code; and projectors of new irrigations have protected themselves by
securing long term leases on waters before preparing their lands.
The canal and water-right owners had apparently recognized the
situation and dropped the conflict, for at the time Baird Smith wrote,
any landed proprietor could "obtain a lease of a given quantity of
water, either in perpetuity or for a specified term, on paying the cur-
rent price for it."
THE RIGHT IN LOMBARDY.
In Lombardy, also, this question came up in a most aggravated
form. The holders of water rights "acted on the principle that they
224 ITALIAN IRRIGATION LEGISLATION.
had a right to do what they liked with their own, and were in the
habit of suspending arbitrarily the supplies of water disposed of by
them to other parties under subordinate grants, of increasing as they
thought fit the prices to be paid, and, in a word, of pushing to its
utmost limits the right of absolute property purchased by them from
the State."
As the outcome of a long series of struggles over this point, tin-
question was settled very much as already described for Piedmont:
the water-right holders were restricted in the operation of their
rights of propertyship in the waters, and compelled to distribute
them amongst the irrigators according to ancient custom, notwith-
standing the fact that in most cases of the older rights they held the
water as an absolute property by virtue of purchase from government.
Baird Smith says, of this claim of the water-right owners to do as
they chose, in Lombardy:
"But an agriculture founded on artificial irrigation cannot advance
as it ought to, under such an arbitrary system; and so, in protecting
the irrigating communities, there gradually grew up a right, which,
being acknowledged by the legislative tribunals, modified the des-
potism of the government grantees. This right bears the name of
the diritto d'insistenza, and assures to a province, or commune, or asso-
ciation of irrigators, or even to individuals, a legal claim to a contin-
uance of such a supply of water as they may have enjoyed for long
periods of time, and on the faith of possessing which they may have
incurred heavy expenses. So long as the irrigating community pays
the water-rent fixed by the grantee of the canal, it cannot be arbi-
trarily dispossessed of its supply; and in the event of the proprietor
of the water desiring to change the rates of payment, this must be
done through the medium of arbitrators duly nominated by both
parties."— [Smith, Vol. II, p. 138.
It is as a result of this class of troubles that we find all agreements
between those who have water to distribute, sell, or lease for irriga-
tion, whether the government, private individuals, or great corpora-
tions, and those who use the waters, are made for long terms, the
minimum, as a general rule, being nine years, and, for greater vol-
umes, twenty or thirty years, and, not infrequently, for ninety or an
hundred, or in perpetuity.
These contracts determine in detail the terms of the transaction,
and are recorded and stamped, even if for an insignificant amount.
Their form and provisions will be spoken of elsewhere.
^2) THE USE OF SPARK WATERS.*
We now come to another class of contests between those who held
the water, and those who wanted to use it. The case we have just
* See Smith, Vol. II, pp. 257-260, and elsewhere; also, De Buffon, Vol. II, pp. 200-204, and
elsewhere.
THE RIGHTS OF IRRIGATORS. 225
considered is one wherein water having been used in irrigation by
certain employers of it, under leases or rents, at a determined rate
for considerable periods of time, the owner of the canal of supply
desires to raise the rent at the end of a lease, or lease the water to
other customers, thereby leaving his former customer witheut-a
supply.
The present case is that in which an owner of a spring, or a canal
of supply, not having use for all the water himself, refuses to sell it
to any one at a fair rate, but insists upon wasting it. One would sup-
pose that such cases, in a country where water is so valuable, would
never occur, but there have been some remarkable instances of this
kind of abuse, which are so instructive that I reproduce an account
of one of them here, as given by De Buffon, upon the authority of
count Cavour who was minister of finance of the Sardinian govern-
ment. In his manuscript notes to De Buffon the count said:
" I have seen an example of each of the abuses that the new code
has tried to prevent. Here is one of them :
"In 1832 the marquis of Saint G , farmer,* of the canals of the
Vercellais, having quarreled with the marquis Pal , his neighbor,
had persisted, during eight consecutive years, in throwing away into
the Po, two streams of water that the marquis Pal— - offered to pay
him 12,000 francs ($2,400) a year for. To satisfy a personal antipathy
M. de Saint G— - consented to lose nearly 100,000 francs ($20,000),
and to cause- at the same time to the agriculture of his country a loss
at least three times as great.
"The new code put an end to this deplorable state of affairs; but a
sentence of the senate of Turin, founded on article 560 of it, was neces-
sary in order to force M. Saint-G to have his revenue augmented
by 12,000 francs a year.
"This same marquis of Saint-G , wishing to coerce the com-
munity of F , to subscribe to an engagement, which they thought
oppressive, refused during two years to let run on the lands of this
community the colatures§ of his vast domains, for which he was
offered 6,000 francs per annum. He preferred to waste them into the
Po.
" Marquises of Saint-G are rare, but as they are not impossible,
the law does well in taking away from them the means of injuring
people less rich and powerful." — [De Buffon, Vol. II, pp. 203-204, quot-
ing Cavour.
The Sardinian Code. — The provisions of the code to which the count
referred were contained in the article of the Sardinian code, which
here follows:
"ART. 560. Every proprietor or possessor of water may make such
use of the same for himself as may seem to him good, or he may dis-
#The system of farming out the revenues of and distribution of the water from government
canals is explained elsewhere; and the abuses which have grown up under it have been shown.
The present is a case in point, illustrating what has been said.
2 The waste waters from meadows and rice irrigations.
15 -(1
226 ITALIAN IRRIGATION LEGISLATION.
pose of it in favor of other parties, provided always that no title or
prescription exists to the contrary; but after having used the water
himself, he is not at liberty so to dispose of it as to cause it to be lost,
to the injury of lands at lower levels, which might have benefited by
it without causing any back-water, or injuries of other kinds to the
higher employers. Whoever may desire to avail himself of the water
referred to is bound to pay a fair price for it, whether the supply be
derived from a spring existing in the upper estate, or from a stream
introduced by special grant."
It will be seen that the provisions of this article meet the case quite
fully, and, as a matter of fact, the contentions on points of this clas^
were stopped by a few decisions of the higher judicial tribunals,
under it.
Mr. Baird Smith, from a former edition of De Buffon's work, also
quoted Cavour's account of the case of the Marquis of Saint G ,
and, in concluding the topic, himself made the following remarks:
"I think few will dissent from M. de Cavour's conclusion; for if it
is ever necessary that a man should not have full power to do what
he likes with his own, or that the duties of property should be
enforced equally with its rights, surely it is when the very sources of
agricultural progress are concerned. I think, therefore, that the
principle of requiring every proprietor of water to place it at the
disposal of his neiglibors on equitable terms, after his own wants
have been fully supplied, is one of great importance in the legislation
of irrigation, and well worthy of adoption by us in the East, where
great canals are in progress." : —[Smith, Vol. II, p. 258.
The Italian Code. — In framing the new Italian code, article 545, the
article (560) of the Sardinian was closely followed, so that irrigators
have now the same consideration on this point, for all Italy, that those
of Piedmont had twenty and more years ago. But, also following the
framers of the old code, those who made the new refrained from
inserting any clause corresponding to the ancient diritto d'insistenza
of Piedmont and Lombardy — the right whereby any water company
could be compelled, by judicial action, to continue the serving of its
old customers, and prevented from conducting its waters to other cus-
tomers, leaving users of water of long standing without any. As
before remarked, the law on this point was set for existing irrigations
by the action of the local senates in the last part of the last and the
first part of this century; and after the adoption of the Sardinian code
new irrigation agreements have always contained a clause protecting
the irrigators for long periods, from possible withdrawal of their water
supply.
*Mr. Baird Smith's report was written for the English East India Company, operating in
India.
REGULATION OF IRRIGATION PRACTICE. 227
SECTION III.
OBLIGATIONS AND RIGHTS OF IRRIGATORS AND CANAL MEN.
(1) OBLIGATIONS CONCERNING VVATKR SUPPLY AND USK.
Experience teaches that the relations between those who command,
for distribution, the water supply of an irrigation region, and those
who receive and use it, cannot be too clearly understood. The scale
of efficiency of canal works and of energy in their management is
such that, at best, it is in practice exceeding hard, in any particular
case not at an extreme, to say whether a management has been to
blame or not for a failure of water supply. A canal manager may be
so often a target of ungrounded fault-finding on the part of irrigators,
that he is hardened to their complaints, and becomes careless of their
interests; or he may be parsimonious in the business management of
his property, his canal works become inefficient, or, not repaired in
time for the season of rising waters, are damaged, and the irrigators
suffer because of short supply resulting from his neglect or bad man-
agement.
On the other hand, a failure of water may be occasioned to irri-
gators, by reason of circumstances beyond the control of the contractor
for the supply; the streams may not bring down their accustomed
quantity, or the works may be damaged by unexpected and over-
whelming floods, so as to cause delay in delivery of waters for irriga-
tion; or third parties may maliciously or through neglect cause
damage to works, or otherwise interrupt the water supply.
The questions growing out of the relations here spoken of, were
found, in northern Italy, to specially demand the establishment of
general guiding rules, and accordingly we find such provisions in the
laws of the country, as seem to fully meet the more important points,
for misunderstanding, likely to come up.
The Sardinian Code. — In Piedmont the Sardinian code was quite
explicit on these relations.
The obligations of those who -had water to distribute to customers,
for irrigation, concerning their duties with respect to delivery of the
supply engaged, the conditions whereunder they were not to be held
responsible should there be a deficiency in the water delivered, the
stipulation as to a rebate on the water-rate in the event of certain
conditions being presented, the recourse of recovery for damages, and
stipulation as to who should join in an action therefor, are fully and
so clearly set forth in articles 664, 655 of this code that I present them
without further remark :
228 ITALIAN IRRIGATION LEGISLATION.
"ART. 664. In default of special agreements the proprietor or other
granter of water from a spring or canal is under obligations to those
who hold grants under him, to execute all the ordinary and extra-
ordinary works required to procure the supply; to conduct and to
preserve the water up to the points at which the employers take pos-
session thereof; to maintain the structures in an efficient state; to
repair the bed and banks of the spring or canal; to effect the usual
clearances; and to exercise due diligence, watchfulness, and care to
insure the delivery of the water, and its regular supply at the appro-
priate times, under pain of having to pay compensation for all injuries
inflicted on the employers of the water by his neglect of duty.
" ART. 665. If, however, the granter of the water can prove that the
deficiency of the supply arose from natural causes, or from the acts
of others, for which he could not be held responsible, either directly
or indirectly, he shall not, in such cases, be bound to pay compen-
sation for the injuries sustained by the users of the water, but only to
submit to a proportional diminution of the amount of water rent, or
the equivalent corresponding thereto, whether previously paid or not,
without prejudice to the right of the injured parties to institute an
action for compensation against those who may have caused the
deficiency.
" In the second cases contemplated above the granter of the water
is bound to join in the action with the employers, should they so
desire, and to use every means in his power to assist the same in
obtaining compensation from those who had caused the deficiency of
water."
The Italian Code. — Articles 649 and 650 of the Italian code (see
appendix II) correspond to the foregoing, numbers 664 and 665 of the
old Sardinian code, and are the same with one important exception.
The penalty which was to be imposed upon the contractor, to deliver
water for non-fulfillment of agreement, as embodied at the end of
article 664 of the Sardinian code, is not reproduced in the Italian. It
may be, however, that other general laws of the country regarding
contracts, or agreements, or other cognate matters in principle, amply
cover the case, and enable the employer of the water to recover com-
pensation for damages from the contractor to deliver it, should injury
result from his neglect.
In this connection, although noticed before, under the heading of
"Distribution by use or service rendered," articles 653 and 654 of the
Italian code are worthy of mention, as imposing an obligation on the
user of water not to change in any way its use, so as to affect the volume
required, or the amount of drainage waters left over when the water
is furnished under an agreement to do a certain service, and with a
clause reserving the right to the drainage waters, even though a plea
is advanced that the volume of the drainage waters has been increased
from some other source.
Thus, water being furnished to irrigate a certain tract of land in a
OBLIGATIONS AND RIGHTS OF IRRIGATORS. 229
certain crop, under an agreement whereby the drainage waters were
reserved by the party furnishing the supply, even though the irrigator
should introduce a new and additional supply on to an adjacent tract,
lying higher, and thereby increase the' amount of drainage from the
lower estate, he cannot use any part of said drainage, but musHe4, it
flow for the benefit of the party to whose benefit the reservation in the
agreement has been made.
The apparent reason for this rule, being given in another place, will
not be repeated here. It would appear, however, that nothing could
prevent an agreement being made whereunder an irrigator would be
fully protected in the use of any addition which he might cause to the
drainage waters.
(2) PRIORITY OF PRIVILEGK IX DISTRIBUTION.
Principles strenuously contended for and contested, at one time or
another in all irrigation regions, are those of priority of rights to
water: first, by virtue of. commanding localities on streams; second,
because of antedate of claim; and third, because of contemporaneous
advantage or stated claim for a definite time.
In the legislation of northern Italy these principles not only found
recognition in the adjustment of rights to water from natural streams,
but in the arrangement of the generalities of distribution from canals
to consumers. This last was a feature peculiar to Piedmontese legis-
lation, and found place in the Sardinian code, in articles 666 and
667, some points of which are worthy of explanation and remark.
Generally, the management of irrigation is such in Italy that,
whether water is delivered by volume, as per module, or according
to the use or duty assigned, or indeed, in all cases except when
a continuous stream has been contracted for, the periods for each
delivery are determined and adjusted in a schedule long beforehand,
perhaps at the beginning of the season, on each canal. The same
outlets, the same ditches, may, at different parts of the year, different
months, different days, or different hours, serve different people, but
it is known and recorded long beforehand at what times each is to
receive his supply.
This being the case, and the schedule being determined, should
the water supply be all engaged, and should, at any time, from any
'cause, a deficiency occur, as by the breaking of a canal or temporary
derangement of any work, the loss of water had to be borne by the
parties whose turn it was to receive it, according to the schedule.
They did not have to pay for water which they did not get, but there
being no water, or a short supply, during the hours, days, or weeks,
as the case may be, for which their turn was set, they were the sole
230 ITALIAN IRRIGATION LEGISLATION.
losers so far as the effect of slack supply was concerned. They could
not be served with water at the expense to the shares of other con-
sumers who had been booked for other hours, or receive water at any
other time, unless there was a surplus of supply over the demand, at
some period, which could be turned to them. (See article 666.)
In cases wherein water was not distributed by turns, but in a con-
tinuous stream, another rule prevailed. First, the principle of "first
in time first in right" was applied: he whose engagement or agree-
ment for water was the oldest, received his full supply so long as
water lasted, while those whose contracts had been made more recently
had to suffer loss by the deficiency; and so on down the scale as to
time — the last one being the first sufferer.
Then came in the principle of advantage by reason of situation.
Where privileges were of even date in origin, the one located highest
on the canal of supply had the advantage to the full extent of its quota,
while the ones below, commencing with the furthest from the head,
had first to suffer reduction when the supply was short. But, as will
be noticed in the law, no one was expected to pay for water which lie
did not get, and, if payment had been made in advance, the irrigator
had a right to reclamation for the amount. (See article 667.)
These articles are now themselves transcribed for closer study:
"ART. 666. The deficiency of water shall be borne by those par-
ties during whose period of rotation the said deficiency may occur;
saving their right to compensation for injuries, to diminution of
water-rent, or its equivalent as above defined.
"ART. 667. Among the different employers, those individuals
whose titles or rights of possession are most recent, shall first bear
the effects of the deficiency of the supply. Among employers equal
in the preceding respects, the deficiency shall first affect those whose
outlets are at the lowest levels; saying, in all cases, the right of action
for compensation against the parties causing the deficiency."
The Italian Code. — Articles 651 and 652 of the Italian code* corre-
spond with the foregoing, numbers 666 and 667 of the Sardinian code,
and closely follow them with one exception.
The second clause of article 652 differs from that of 667, in that the
expression does not clearly indicate that the principle of priority by
reason of situation on a stream is to be applied. [Refer to remarks
under article 652, in appendix II.]
*See, Appendix II.
OBLIGATIONS AND KIGHTS OF CANAL-MEN. 231
AUTHORITIES FOR CHAPTER XI.
In the preparation of this chapter I have consulted and compared the following named
authorities:
JDe £ufon.—[Work cited as an authority for Chapter IX. (French.)] See, Vol. II, B. VII,
Ch. 38, Div. II, and Div. IV,- Ch. 39, Div. II; Ch. 40, Div. I;' and elsewhere a* cited.
Smith.— [Work cited as an authority for Chapter IX.] See, Vol. II, P. Ill, Ch. I, Sees. I, II, III,
IV, and V, and Ch. II; P. IV, Ch. I, Sec. Ill, and Ch. II, Sec. Ill; and elsewhere as
cited.
Sardinian Code.— [Work cited as an authority for Chapter X.] See, Articles 560, 641, 642, 643,
644, 645, 646, 647, 664, 665, 666, and" 667.
Italian Code.— [Work cited as an authority for Chapter X.] See, Articles 545, 620, 621, 622,
623, 624, 625, 626, 627, 649, 650, 651, 652, 653, and 654; and also the annotations to each
of these articles.
CHAPTER XII— ITALY(4);
REGULATION OF DRAINAGE AND WORKS CONNECTED WITH IRRIGATION
PRACTICE.
SKCTIOX I. — Regulation of Works.
Construction of Works on Private Lands.
Distances from Boundaries of Estates.
Construction and Maintenance of Works — Free Passage.
SECTION II. — Rights and Obligations of Drainage.
Drainage Complications.
Principles of the Italian Laws.
Provisions of the Codes — Sardinian; Italian.
SKCTION III. — Sanitary Legislation.
The Unheeded Teachings of Experience.
Sanitary Effect of Unregulated Irrigation.
Regulation of Rice and Meadow Culture.
Sanitary Regulations — Modern Legislation.
SECTION I.
REGULATION OF WORKS ACCESSORY TO IRRIGATION PRACTICE.
DISTANCES TO HK PRKSKRVKI) I'KOM KOUN I>A RIKS.
In irrigation regions closely settled and fully developed, questions
frequently come before the courts which are rarely, if ever, met with
in other countries, and thus arise necessities for provisions of statu-
tory law which wrould be altogether needless elsewhere. Prominent
amongst these questions are those relating to the rights of individuals
to do as they please with their own property or on their own lands.
The class of operations accompanying or forming a part of irriga-
tion practice, are peculiarly of a character whose effects are not and
cannot always be confined to the possessions of those who carry them
out. Indeed, the more important works must necessarily be com-
munity works; in nearly all there is a community of interest or a
widespread effect, and even works for one's own benefit, solely, on
one's own property, not infrequently infringe upon the rights of one's
REGULATION OF ACCESSORY WORKS. 233
neighbors to an extent that it becomes necessary to impose restraint
on the acts of individuals in exercising their rights of propertyship.
Instances of this class of legislation have already been cited in
former chapters of this report; notably under the headings concern-
ing springs, and water-rights, wherein the right to excavate, boxe,_or
dig for water on one's own property is limited by law out of consider-
ation for the rights of others having springs, wells, or water supply
works on adjoining lands.
We now come to certain provisions of law which limit the right of
individuals to construct canals and ditches for conducting waters, on
their own property. A moment's consideration shows the necessity
for the restrictions.
The reasons may be summarized as follows:
When canals or sources of supply are situated, as often they neces-
sarily are, near the boundaries of the tract on which they lie (and
which perhaps may be a narrow strip condemned, on which to con-
struct the work only), by reason of the percolative nature of soils or
subsoils, if parties owning the adjoining lands were allowed to exca-
vate a parallel work as close to the border of their lands as they chose,
the waters of the canal or source adjoining might thus be caused to
percolate away into the new excavation, perhaps at a lower level, to
the great injury of him or they who own the source which has pro-
duced, or canal which has brought them.
Or, by reason of the instability of the soil itself, if persons were per-
mitted to excavate as closely as they chose to a boundary of their lands,
the ground itself might be caused to cave away from a canal bed or
bank, fountain, basin, in adjoining lands to the great loss of its owner.
And, again, canals used for carrying waters, liable to the erosive
effects of their currents, if constructed close to the bounds of one
estate, cut in upon the lands of others, to their injury; or, being in
porous soil, impart undesired moisture to the lands of others, thus
rendering them unfit for cultivation.
As a consequence of experiences of such effects, we find in the laws
of northern Italy a number of provisions intended to meet the cases to
which they give rise, or to prevent the cause of such cases. Amongst
these are the following articles, of the Sardinian code formerly ruling
in Piedmont, which, after this introduction, so far as our subject goes,
require no further explanation :
ARTICLKS OF THK SARDINIAN CODK.
"ART. 599. The ditches and canals which the proprietor of an
estate may excavate on his own land, shall be placed at a distance
from the boundary lines of adjoining estates at least equal to their
234 ITALIAN IRRIGATION LEGISLATION.
respective depths, except in cases where local regulations prescribe a
greater distance.
"ART. 600. The foresaid distance shall be measured from the edge
of the bank of the ditches or canals nearest the boundary lines above
referred to. This bank must always have a slope equal to its height,
or, in the absence of such a slope, it ought to be provided with retain-
ing works.
"Where the boundary of an estate is formed by a ditch possessed
in common, or by a private road also common, or subject to the ser-
vitude of passage, the distance shall be measured from the crest of
the bank, as above denned, to the edges either of the common ditch
or road, nearest to the property of the party desirous of excav.iting
the new canal or ditch; the obligations regarding the slope or revet-
ment of the channel remaining in full force.
"ART. 601. Should the ditch or canal be excavated in the vicinity
of a wall possessed in common, the observance of the foregoing dis-
tance is not necessary, but the party excavating the said ditch or
canal shall be bound to construct all such intermediate works as may
be necessary for the protection of the wall."
It will be noticed that these rulings simply prescribe minimum
distances to be observed in the location of works. In the judgment
of the courts as advised by professional experts, in each case a greater
distance might have been insisted upon, or other precautions enforced,
as was indeed frequently the outcome in practice.
The Italian Code* — Articles 575, 576, and 577, of the Italian code,
follow closely the foregoing numbers 599, 600, and 601, of the old
Sardinian code in wording as well as meaning; there being only a
slight difference in the framing of the second one of the three, which
really does not materially change the meaning, except that the degree
of slope required to the bank of a ditch when adjoining a property
line is not determined in the new law, as it was in the old; thus
leaving this matter of detail to administrative regulation or judicial
decision.
OBLIGATION AS TO COXSTRl TTION AM) M.UNTKN AXCK OK WORK.
A very important ruling, in the way of a regulation for the con-
struction and maintenance of canal works, was embodied in the
Piedmontese law, in the form of an obligation upon the owner of any
ditch, canal, or water-course, to so plan, lay out, construct, and main-
tain* it, that neither the work itself nor the flow of its water, should
interfere with the free passage of travel on public or private roads or
paths, nor with the free flow of waters in and efficiency of other
canals or ditches, whether for irrigation or drainage purposes.
The Sardinian Code. — This provision was made in article 633 of
the Sardinian code, which was as follows:
* See, Appendix II.
REGULATION OF ACCESSORY WORKS. 235
"ART. 633. In cases where waters flowing for the benefit of indi-
viduals prevent the adjoining proprietors from passing freely to their
estates, or check the circulation of water in other irrigation or drainage
lines, the parties benefiting by the waters are bound to construct and
maintain in good order the bridges necessary for intercommunica-
tion, in a sure and convenient manner. They are farther bound to
construct and maintain such culverts, aqueducts, and other Tike
works, as are required for the free progress of irrigation or drainage,
saving an agreement or legitimate title to the contrary."
The Italian Code. — In framing the new code for Italy, the old Sar-
dinian ruling was closely followed in this particular, as will be seen
from article 608 of the Italian code.*
SECTION II.
THE RIGHTS AND OBLIGATIONS OF DRAINAGE.
DRAINAGE TROUBLES IN ITALY.
More than in France, Spain, or any other country where irrigation
has been broadly practiced, in northern Italy the problems of drain-
age have been ever present in the practical, legislative, and adminis-
trative complications which have been developed by it. This has
been quite naturally brought about: for irrigated northern Italy is a
well watered country, both with respect to the number and volume
of streams, which course from the adjoining mountains across its
plains, sometimes producing widespread and disastrous floods even
in the irrigated districts, and also in the amount and regularity of its
rainfall. And not only is the country thus well supplied with water
by the streams from the mountains, and directly by the rains from
the sky, but its subsoils abound with flowing waters which break
forth in many living springs thickly scattered over wide regions of
its plains.
Irrigation without drainage, and systematic and thorough drainage
too, in northern Italy, would very soon result over the whole country
in disaster: financial failure in agriculture, and a general depopula-
tion of the country, because of its unhealthfulness. Drainage, then,
is not only an essential to individual success in irrigated cultivations,
but it is a requisite to the maintenance of the health of populations,
and hence we find that it has received very close attention not only
as an art, but as a social and political problem.
And still again, in most cases, the waters of drainage are not car-
ried to waste — they are property, valuable for the irrigation of other
* See, Appendix II.
236 ITALIAN IRRIGATION LEGISLATION.
lands, and almost as much in demand for the purpose as are those of
springs or rivers.
Authorities unite on this point, but, for present illustration, I cite
only one. Baird Smith says:
"As the necessary complement to an effective system of irrigation,
arrangements for disposing of the drainage-waters connected with it,
are essential. It will, I believe, be found in most cases, and I know
from experience it is especially so in northern India, that imperfec-
tions of local drainage, as connected not so much with the great topo-
graphical features of the country, as simply with irrigation itself,
within the limited area k affects, are more frequently the source of
malaria and injury to the land than anything else." — [Smith, Vol.
II, p. 300.
In another place, speaking of troubles in the irrigation regions of
India, this same author has written:
"A comprehensive and authoritative system of drainage in con-
nection with irrigation must be matured, and duly sanctioned by
government, before the existing evils can be wholly eradicated. "-
[Smith, Vol. II, p. 303.
PRINCIPLES OF THK LAW.
The Sardinian Code. — The civil code which ruled in Piedmont
contained some very important provisions relative to rights and
obligations connected with drainage, yet there was much by way of
regulation of private and public works, and the acts of individuals,
governing and affecting drainage matters, that was left to the discre-
tion of the administrative authorities in the execution of their gen-
eral police power.
We find in the code express provisions on the following points:
(a) The right of natural drainage-way, which assured to the owner
of lands the continuation of the privilege to have waters, draining
naturally from his estate, flow off on to lands below, as they by nature
were accustomed to flow, even though they injured the properties
lying there. But this right was accompanied by a stipulation that
such waters were not to be increased artificially; and at the same
time by a prohibition upon the owner of the lower lands not to inter-
fere with their flow. (See Art. 551.)
(b) An obligation upon the proprietors of lands where were situated
channels or embankments serving for or necessary to the preserva-
tion of efficient drainage, to keep such works in repair, (c) An obli-
gation on these proprietors to construct new or additional works, such
as might be necessary for the preservation or protection of the exist-
ing structures, channels, or banks, (d) An obligation on all land
proprietors to keep the water-courses and channels through their
estates clear from such deposits or accumulations of material as might
DRAINAGE RIGHTS AND OBLIGATIONS. 237
interfere with the free escape of the waters, and thereby cause damage
to their neighbors, (e) The right of interested parties, suffering or
threatened in their estates with damage by reason of the necessity for
repairs to works, the removal of deposits or clearance of channels,
situated on others' lands, to go on to such lands, and themselves make
the repairs, removals, or clearances. (/) The right of the party thus
in peril by reason of the necessity for additional protective or other
works, to go on the lands of another and there construct them. (See
Arts. 552, 553.)
(g) An obligation upon all land proprietors interested in the main-
tenance of channels and embankments, or the preservation of free
escape for drainage waters, to contribute in proportion to the extent
of their interests towards the expense of such maintenance and
clearances.
(/&) The individual right of proprietors interested in such works
and channels to proceed for the recovery of damage resulting to them
by injury to the works, or by obstructions made or caused to form in
the channels, against the party, or parties, causing such injury or
formation. (See article 554.)
But the rights (e) and (/) were accompanied by the stipulations:
That, in exercising them, the property of others was not to be
injured.
That, before exercising them, special authority should be had from
competent local administration, or judicial officers. And that all
interested parties be heard by such officer before the authorization
should be issued.
And the declaration of these rights was also accompanied by that
of an obligation, on the part of parties desiring to exercise them, to
conform to administrative regulations applying to the water-courses,
or other channels, or works of the locality. (See articles 552 and
553.)
PROVISIONS OF THE CODES.
Sardinian Code. — The foregoing points were embodied in the code
which ruled in Piedmont, in the articles here presented for reference:
"ART. 551. Lower lands are subject towards those which are
higher to receive all the waters which flow naturally, and without
the aid of artificial works, from such higher lands.
"The proprietor of the lower estate shall not raise any embank-
ment whereby this escape may be interfered with.
" The proprietor of the upper estate shall refrain from doing any-
thing whereby the servitude of the lower land may be aggravated.
" ART. 552. When the channels or embankments which serve to
contain waters within an estate are broken down or destroyed, or
when variations in the course of the water render defensive works
238 ITALIAN IRRIGATION LEGISLATION.
necessary, and the proprietor of the estate fails to restore the channels
and embankments, or to construct the required works, then those who
shall suffer injury, or shall be in imminent danger of it, can cause
the works to be executed at their own expense; they can avail them-
selves of this power, however, only on the condition that the proprietor
of the land on which the works are to be constructed shall suffer no
damage; they must, furthermore, receive beforehand the permission
of the competent authority, to be given after the parties interested are
all heard; and also must conform in all cases to any special regula-
tions which affect the management of the waters.
" ART. 553. The same rule shall apply when it is considered desir-
able to destroy or remove any obstacle to the free escape of waters in
the form -of deposits or collections of other materials, within an estate,
or in a private water-course, the existence of which threatens injury
to adjoining lands.
" ART. 554. All the proprietors who have an interest in maintain-
ing the channel and embankments, or removing the obstacles referred
to in the preceding articles, may be called upon to bear their shares
of the expense incurred, which shall be rated on each in proportion
to the benefit he receives from the works. In every case the propri-
etors shall have the power of proceeding individually against the
party or parties who may have caused the destruction or choking up
of the channels referred to, for the amount of the expenses incurred,
and for compensation for damages caused."
In addition to the preceding clauses expressly pertaining to the
subject of the natural right of drainage, and the obligations or rights
of proprietors, relevant to the maintenance of drainage works and
channel-ways, the Sardinian code made provision for the acquire-
ment on the part of individual land proprietors, of the right, as a
servitude, of conducting drainage waters, across the properties of
others, and for the acquirement, by condemnation, on the part of
works declared to be of public utility, of titles to the necessary strips
of lands for purposes of construction of drainage works of all classes.
These provisions and others relating to rights of way for drainage
will be noticed in the chapter about rights of way for waters, gein-r-
ally.
Another branch of this class of legislation is the regulations relat-
ing particularly to sanitary matters, and which will also be noticed
in the next section of this chapter.
The Law of Lombardy. — This subject of drainage was of great
importance in Lombardy as well as in Piedmont, and commanded
special attention, also, in the laws of that country, of which some
evidence will be found in the third division of the general law of
that country, concerning irrigation associations, transcribed in the
chapter which follows this.
The Italian Code. — The new code for all Italy, superseding the laws
DRAINAGE RIGHTS AND OBLIGATIONS. 239
for Piedmont and for Lombardy, makes equally full provision for the
interest of drainage. Articles 536 to 539*, inclusive, contain matter
to almost exactly the same effect as the articles 551 to 554 of the
Sardinian code, already analysed.
The subject of right of way for drainage waters, as will be_seen
hereinafter, in the chapter on rights of way, is also, quite as fully
considered.
SECTION III.
SANITARY LEGISLATION.
THK UNHKKDKD TEACHINGS OF EXPERIENCE.
No branch of legislation affecting irrigation interests, under the.
several governments of northern Italy, has been more often the field
of enactment than that having for its object the preservation or pro-
motion of good sanitary conditions in irrigation regions; nor has any
other class of irrigation legislation been subject to such frequent fluc-
tuations and amendments, or to such radical changes.
The necessity for this class of legislation has been the result of the
gradual development of irrigation without proper system in the
arrangement of works and without due care in the management of
the waters and cultivations: it has been the natural outcome of a
practice wherein every individual has striven for his own special
advantage, and no consistently and constantly-acting overseeing
power has cared for the interests of all, by guiding or controlling a
little the actions of each.
To the reader of the annals and the observer of the development
of irrigation, reclamation, and drainage practices, it cannot but seem
that no people ever would or ever will profit by the former experi-
ences of others in the lines of their intended endeavors. In our day
and country one daily sees or hears of projects, theories, or practices,
being put forward, the like of which have elsewhere long ago been
tried and proven unprofitable, inadequate, or harmful. Personal
experience or observation seems to be the only teacher in these lines
of knowledge, which those who embark in hydraulic agricultural
enterprise admit to their counsel. Professional knowledge of or
technical data concerning what has been done elsewhere, with its
results and lessons, it would appear had no existence. Superficial
observation and blind experiment, guided by the illimitable self
assertion of the times, which a plethoric purse prompts or narrower
*See, Appendix II.
240 ITALIAN IRRIGATION LEGISLATION.
views of self interest stimulate, guide some of our most important
enterprises; others are reined by those who look to immediate self
aggrandisement, without reference to the legitimate outcome at all ;
still others, by those who do not know but that the field of their
experience is almost a virgin one, and that irrigation, for instance, is
a Californian invention.
Seeing that these great interests are here developing under such
influences, what must have been the surroundings of the growth of
irrigation in Italy several centuries ago, we may well imagine. That
the circumstances were unfavorable to the realization of the best
results, we may well understand; that the results in many respects
were very bad, there is ample evidence at hand.
SANITARY EFFECT OF UNREGULATED IRRIGATION. ;:
Not only is all irrigation, where conducted without adequate nat-
ural or artificial drainage of the soil, and as ordinarily practiced to
effect anything like a full development of the capabilities of lands,
harmful and injurious to the healthfulness of the irrigators and res-
idents of the region irrigated, but certain cultivation? in themselves
are unhealthful, and necessitate the use of waters in a manner which
produces an unsanitary condition of their neighborhood.
Trouble of this character made itself apparent in Italy during the
fifteenth century, and following upon the introduction of rice culti-
vation which had been brought into the Venetian provinces in the
early part of the century, from Spain. Now, the experience in Spain
should have constituted a lesson for the Italians, but it did not. Rice
had been brought into Spain by the Moors full two centuries before,
arid its cultivation had been the cause of most serious fever epidem-
ics and such widespread alarm that regulative measures had been
enacted from time to time, and at other times the cultivation had
been prohibited altogether by royal decree, and then again allowed
under stringent rulings as to locality and the provision of proper
drainage.
In general terms, this same experience has been repeated in Italy.
The cultivation of rice was first introduced upon marshy tracts un-
suited for other cultivation without expensive reclamation and drain-
age, and at localities somewhat remote from thickly settled districts.
It then spread, by degrees, into the lands irrigated from the great
canals, and in the best neighborhoods of the country, approaching the
gates of the large cities and the villas of the upper classes of society.
* Marsh: Kept. Dent. Agri. 1874, p. 366; Smith, Vol. II, pp. 219-224, 319-328, and elsewhere
in Vols. I and II; De Buffon, Vol. II, pp. : '
pp. 151-161, and 339, et seq.
SANITARY REGULATIONS. 241
Fever epidemics became more and still more prevalent, and many
cases of low fever were always present, even when not epidemic, so
that from time to time there arose most violent opposition to rice cul-
tivation at all, and there was a constant demand for its regulation.
LEGISLATIVE RKC.ULATIOX OF RICK CULTURE.
Lombardy. — In Lombardy the earliest sanitary regulation of which
there is record was promulgated in 1575. It took the form of restrict-
ing rice cultivation to certain areas, and prohibited it within certain
distances of inhabited places. From that time on to the beginning
of this century the records bristle with regulations promulgated,
modified, annulled, and reenacted. In the territory of Milan, for
instance, in 1583 the cultivation of rice was absolutely prohibited.
In 1593 this was modified by a regulation forbidding rice cultivation
within six miles of the city of Milan and within five miles around
every other town; and at later dates these distances were successively
increased and diminished as the rice cultivators found favor by fair
means or foul with the rulers, and as the healthfulness of the country
permitted popular sentiment to cool off on the subject, or the un-
healthfulness roused the people to vigilance again.
In 1630 a frightful pestilence swept over the province of Milan.
Rice cultivation was again prohibited for a short time, but again
became prevalent. At a later date the distances from the cities, within
which rice might be cultivated, were reduced from "long" miles to
the same number of "short" miles and these were to be measured
from the centers of the towns and not from the ramparts. And so
matters ran on until the beginning of the present century, when
Napoleon, formulating the experience of the past and calling to his
council the best informed people of the country, promulgated the
regulation which remained as the law of the land at least up to the
time of consolidation of the present government of all Italy, and then
become the foundation for the newer and present rulings.
Piedmont. — In Piedmont the sanitary regulation of irrigation was
first seriously attempted in 1608, when the cultivation of rice wa* pro-
hibited in any part of the kingdom, except by royal special permit;
and it was stipulated that lands to be used for rice cultivation should
be confined to those unfit for producing anj' other crop, and should
be situated at least about four and one half English miles from any
town or village, and six hundred and fifty yards from any road; that
the consent of the heads of two thirds of the families in the com-
mune should be obtained in each instance, and there should be an
16*
242 ITALIAN IRRIGATION LEGISLATION.
obligation on the part of the holder of the permit to secure and main-
tain perfect drainage for his fields, under the supervision of the gov-
ernment engineers. There were heavy fines named for the violators
of this law, and other provisions made for its enforcement,
This species of culture had already grown to considerable magni-
tude in certain parts of the country, and there was much capital
interested in the lands and canals devoted to it, consequently there
was a perfect storm of opposition to the law. The chronicler, here-
after to be named, says that "complaints rained down" upon the gov-
ernment authorities, so that in 1663 the order was modified, so as to
prohibit the cultivation of rice within four and one half miles of Turin,
three miles around Vercelli, nine hundred yards from other towns,
and seventy-five yards from the roads. Then, in 1667, the cultivation
was absolutely forbidden in certain parts of the country. And thus
the history goes with alternate prohibitions, limitations, regulations,
and licenses from that time down to the year 1855, when a commis-
sion or committee of the senate of Sardinia was appointed to inquire
into and report on the whole matter.
This committee reported a history of the legislation of the subject,
from which the foregoing brief recital has been drawn, and it then
expressed its opinion and made its recommendations, in language
substantially as follows:
" Three conclusions appear to us to be deducible from the rapid
review just given of the laws affecting rice cultivation, which have
grown up among us during the course of two centuries and a half.
" First, that the sole remedy against the insalubrity of rice irriga-
tion, which has been applied in practice, has been to keep it at a dis-
tance from inhabited places; but that the limit of this distance lias
been increased or diminished in a manner wholly arbitrary, and
without reference to any theoretical principles or experimental results
which warrant the terms selected. We say this was the sole remedy,
because, although the laws ordain that free passage shall always be
insured for the water, no specific plans for drainage were either sug-
gested or enforced; and the districts where rice cultivation prevails,
remain still unprovided with this important means of securing their
salubrity.
urfhe second inference which appears to the committee, no less
than the first, is, that a remedy which has been altered incessantly,
and at brief intervals, cannot be regarded as a successful one, since
it must have failed to produce the results anticipated from it by those
who tried it in the various forms.
" Thirdly, it is clear that throughout the entire progress of our legis-
lation it has always been found necessary in endeavoring to limit the
extension of rice irrigation to respect the interests which have grown
up in spite of the laws, and to sanction the continuance of the cul-
ture in places where it had been established for considerable periods.
SANITARY REGULATIONS. 243
"The discontents and difficulties created have been such as inva-
riably to force the government to modify its orders and to admit so
many exceptions, as, in point of fact, rendered the laws nearly
inoperative.
"If, therefore, the ancient laws do not supply examples of success-
ful remedies which we can imitate; if, further, the facts on which a
definite law could be founded so as to secure the confidence and
respect of all parties concerned do not at this present moment exist,
the committee is of opinion that measures should be taken to collect
such facts, and that all attempts at final legislation should be deferred
until this preliminary inquiry has been satisfactorily completed.
"On the other hand, the committee is distinctly of the opinion
that certain conditions should be attached to permissions to form
new rice lands; and, pending the collection of facts on which a final
law may be based, they think that a temporary measure may prop-
erly be sanctioned. They therefore recommend that the project now
submitted be passed by the senate, with the modifications which have
been suggested by the committee." — [Smith, Vol. II, p. 326.
The measures recommended by the commission were enacted into
law, and remained as the law of the country, at least until it was
merged into the present kingdom of Italy.
The chief points in this law will be given under the next subhead-
ing of this chapter.
SANITARY REGULATIONS — MODERN LEGISLATION.*
As I have before remarked, the necessity for regulation of irrigation,
because of sanitary reasons, did not apply only to rice cultivation,
although these great contentions and oppositions have come up over
attempts to prohibit or put a limit on the extension or continuance
of the irrigation of this crop.
The modern regulations providing for the preservation of sanitary
conditions in Lombardy, specially applied to all meadow cultivations
by irrigation, as well as to the fields devoted to rice raising. I here
present an abstract of their principal points, and then pass on to the
laws proposed by the committee and voted by the senate of Sardinia,
for Piedmont.
Lombardy. — The following is an abstract of the principal points of
the irrigation sanitary regulation for Lombardy — promulgated under
a law of 1809.
The establishment of new rice fields without special permission
of the prefect of the department, was prohibited under pain of a heavy
fine upon both the owner of the land and the tenant.
Permits were granted for such establishments only on lands situ-
ated at least five miles from the capital of the kingdom, three miles
-See, Smith, Vol. II, pp. 225-231, and 328-331; also, De Buffon.
244 ITALIAN IRRIGATION LEGISLATION.
from towns of the first class and fortified places, and one and a quarter
miles from towns of the second class, and five hundred and fifty yards
from the smallest towns; and these distances were to be measured at
right angles from the exterior limits of the towns.
Cultivations of rice already existing within the limits specified from
the capital were to cease within three years after the promulgation of
the decree, and the lands be cultivated in other crops; under pain of
a heavy penaltj7. Those existing within the limits prescribed from
other places, were to be subject to further regulation after due inquiry
in the communes where situated.
All rice cultivations wer"e to be conducted in accordance, as to
drainage, with regulations prescribed for each case.
The establishment of meadows, whether constantly or periodically
irrigated, was prohibited within the limits of thickly inhabited
places, and all such meadows were ordered abolished and the culti-
vation changed before the expiration of the then present year.
Permits for the establishment of meadows were to be granted only
for lands situated at least eleven hundred yards from the walls of
the capital city, and five hundred and fifty yards from those ov other
places; and in accordance with plans which were intended to insure
proper drainage of the fields and disposal of the drainage waters.
Other regulations dated in 1817, prescribed the forms necessary to
be observed in applying for and obtaining these permits — amongst
which were the submission of plans of the fields to be laid out, ex-
amination of them and of the grounds by the government engineers
and local authorities, publications of intention, hearings of opposi-
tion, reports of engineers and local officers, etc.
Piedmont. — The law reported by the committee, and passed by the
Sardinian senate in 1855, and of which mention has been heretofore
made, contained points as follows:
A registration of rice cultivations was to be enforced, and heavy
penalties were prescribed for the establishment or continuance of rice
irrigation on fields not registered.
Rice fields established before the year 1848 were permitted to
remain; those established after that date, except as by the law pro-
vided, were subject to abolition, and their owners to fine and im-
prisonment.
All rice cultivated lands were to be drained in accordance with
plans to be submitted to and approved by government authorities and
engineers.
No new rice cultivation was to be allowed within certain prescribed
limits of towns and cities of different classes, and all rice cultivated
SANITARY REGULATIONS. 245
lands were to be surveyed for registration, and their healthfullness
assured so far as possible by proper drainage and use of waters.
These were the chief provisions of this Piedmontese law, but there
were many others which related to forms and details of adminis-
tration.
The Kingdom of Italy. — It is not known by the writer hereof at this
date what action the government of all Italy has taken, if any, in
regard to the subject of the present section. The local regulations for
Piedmont, Lombardy, and other provinces, remained in force for a
number of years after the consolidation of the kingdom, and proba-
bly form at least the substance of the law on the subject to this day.
AUTHORITIES FOR CHAPTER XII.
Smith.— [Work cited as an authority for Chapter IX.] See, Vol. II, P. IV; Ch. I, Sees. II, IV,
and VI ; Ch. II, Sees. IV and VI, and elsewhere.
£>e £ufon.—[Work cited as an authority for Chapter IX.] See, Vol. II, B. VII, Ch. 38,Divs. I
and IV; and Ch. 40 ; B. VIII, Ch. 45, Div. Ill ; and Ch. 46.
Marsh — " Irrigation : its evils, the remedies, and the compensations." By Geo. P. Marsh (U. S.
Minister to the Court of Italy, author of " The Earth, as modified by human action,"
etc.) See, Rept. Dept. of Agriculture, 1874.
Sardinian Code.— [Work cited as authority for Chapter X.] See, articles 599, 600, 601, 633, 551,
552, 553, 554.
Italian Code.— [Work cited as authority for Chapter X.] See, articles 575, 576, 577, 608, 536,
537, 538, 539, and remarks appended to each.
CHAPTER XIII— ITALY'5';
THE RIGHT OF WAY TO CONDUCT WATERS.
SECTION I. — Some Ancient and Modern Laws.
Ancient Laws — Milan, 1216; Venetia, 1455.
Piedmont— Code of Charles Emanuel, 1770.
Modern Laws — Lombardy, Laws of 1804 and 1806.
Piedmont — Sardinian Civil Code.
SECTION II.— The Servitude of Right-of- Way for Waters.
Nature of the Right as a Servitude.
Forms of the Question presented.
The provisions of the Sardinian Code analyzed.
The Right of Aqueduct across Lands.
The Right of Aqueduct across other Canals.
The Right of Aqueduct by a Common Channel.
The Right of Aqueduct for Drainage Waters.
References to the Italian Code.
SECTION III. — Condemnation of Way for Works of Public Utility.
The provisions of the Sardinian Code.
References to the Italian Code.
SECTION I.
THE ANCIENT AND MODERN LAWS.
SOMK AXCIKNT LAWS.
The necessity for a legal method for every individual to obtain in
an expeditious manner the right to conduct water from a source or
head of supply, across lands the property of others, and to construct
and maintain works therefor on such lands, presented itself at a
period very early in irrigation experience in Italy; indeed, it is prob-
able that the realization of this point was transmitted to the Italians
in some law of custom from the experience of the Romans.
" From all time the conducting of water for irrigation has been
recognized as having been of special public use, which, without giv-
ing so extensive a right as appropriation, justified a notable curtail-
ment of the rights of property."— [De Buffon, Vol. II, p. 267.
The servitus aqude ductus of the Romans has reappeared in Italy as
RIGHT OF WAY FOR WATERS. 247
the diritto d'acque dotto, and, so far as known, commencing with the
active extension of some great canal works, in the Milanaise prov-
ince in the twelfth century, as a friendly sufferance on the part of
landholders anxious to see the enterprise go on, it has developed into
a well defined and thoroughly established feature of the law, in-tke
division of servitudes established by process of law.
Although thus allowed at a very early period, the right to cross the
estate of another with a canal or ditch was for a long time the sub-
ject of grave dispute in northern Italy. The several provinces were
not of the same mind on the subject, nor yet were the various parts
of the different provinces, united.
Milan. — Commencing, as a custom, so far as known, in the Milan-
aise province "of the country now known as Lombardy, we find there
the earliest recorded recognition of it in the form of law. This is in
a code dated in 1216, which contained articles on the point, substan-
tially as follows:
" 1. Whoever has the right to obtain waters from springs ,or rivers,
or in any other manner whatsoever, can carry it through the fields
and farms of any individual, commune, or public corporation, in
this state, and also across the public roads.
" 2. To this end he can construct the canals or channels, and other
necessary works, at the least possible inconvenience and injury to the
proprietors of the farms, paying one fourth more than the true value
of the land thereby occupied.
"3. In addition he must repay all damages caused by the works,
according to the estimate of two practical men; provided, however,
that the compensation for damages shall in no case exceed twice the
value of the property damaged.
"4. He shall be bound to maintain in sufficient repair, at his own
expense, the bridges and drains required for the passage of water,
whether on the farms or across the roads, so that these latter shall
suffer no injury, especially in rainy weather.
" 5. The water may be conducted or caused to pass above or below
the canals previously existing, new channels of brick and lime being
made for it in such manner as that the water flowing under shall not
be mixed with that flowing over, or that flowing in the preexisting
canals.
"6. The new channels must be maintained in such condition as
that the proprietor of the water at the upper levels shall suffer no
damage from the reflux of the same. The water shall have a free
and unobstructed course."
Old as is this law, it will be seen, as this matter in hand is traced
forward, that it contained all of the essential principles of a complete
code on the subject, and has only been amplified, but not materially
added to since.
Venetia. — In 1455 the venerable senate of the republic of Venice
248 ITALIAN IRRIGATION LEGISLATION.
passed a law on this point for application in its province of Verona,
whose provisions were as follows:
" Whoever shall obtain the right of establishing an irrigating chan-
nel, may demand a passage for the water across the land of any other
person, paying, however, to the proprietor, twice the value of the
land occupied.
"This value shall be fixed by experts chosen by the parties inter-
ested; and it shall be payable in advance, unless the proprietor of the
land is willing to grant delay of payment.
"On due appraisement and offer of payment the transfer of the
land is made obligatory, and should be effected by proper documents;
but should the proprietor refuse, the administrative authority may
adopt compulsory measures, because the right to the possession of the
land for this purpose exists without reference to the inclinations of
individuals, corporations, or communities, and possession obtained
in the execution of the present statute shall be held good and suffi-
cient as against the grantee.
" In the case of a proprietor refusing* all acquiescence in the posses-
sion thus granted, and declining to receive the price of the land fixed
as above prescribed, this price shall then be deposited with the author-
ities, and immediately thereafter the works of irrigation may be
begun.
" When parties differ as to the proper position of the channel, the
experts must always select the place least injurious to the property
traversed; and the same rule must be observed in case of disputes
about the location of channels sanctioned prior to the publication of
this statute."
Piedmont. — Some ancient Piedmontese legislation on this subject is
found in a clear form in the code of Charles Emanuel, published in
1770, as follows:
"Every commune, corporation, or individual whatever, shall be
bound to grant a passage through their lands for waters legitimately
derived from rivers or fountains, whether for irrigation or machinery.
This passage shall likewise be granted through existing canals a ml
water-courses, provided always that this operation shall cause no
injury to the proprietors of these canals, and shall in no way impede
the free course of their own proper waters.
" Whoever claims a passage for his water-course across the property
of another ought to effect the same with the least possible injury.
The proprietor of the water shall pay the value of the soil occupied,
with one eighth in excess, as estimated by professional men. He shall
further repair all damages he may cause, or pay the full value of the
same.
" When a channel intersects another canal or water-course of any
kind, the passage shall be effected either above or below, by means of
appropriate works. The proprietor demanding passage shall be
obliged to deposit security for all damages which may be caused by
the said works to water-courses or canals previously in existence.
This precaution being observed, the proprietor of the land cannot
impede the execution of the works, but ought to lend all practical
assistance during the period of their construction.
" The definite settlement of the amount of compensation for dam-
RIGHT OF WAY FOR WATERS. 249
ages shall be made on completion of the works. In the event of the
construction of the water-course causing a marked diminution of the
extent or value of a property, the party claiming the passage shall be
bound not only to pay compensation for all injuries as estimated by
professional men, but also to purchase the entire property, should its
owner so desire."
SOME MODERN LAWS — LOMBARDY AND PIEDMONT.
Lombardy.— Following the very ancient Milanese code, which has
been transcribed under the preceding subheading as a matter of
interest because of its remarkable completeness, considering the
time of its production, in all times, down to the beginning of this
century, the right of way to conduct water was a prominent subject
for legislative and administrative consideration by the various gov-
ernments and rulers who held dominion in the states of northern
Italy.
Particularly was this so in Lombardy; and especially complete
does the history appear to be of the various phases which the ques-
tion assumed, and the steps taken in connection with it.
Of all the lines of administration, however, that which was under
the guidance of Napoleon treated this subject most fully, and in the
most advanced spirit. The law for the administration of the waters of
the Lombardo- Venetian kingdom, promulgated by him in 1804, was
the most complete and satisfactory to all parties interested that the
country had ever had. And this, together with administrative decrees
made under it, and dated in 1806, made up the system governing
rights of way for water.
In after years (1816), when under other rule, the Austrian civil code
was promulgated for this same kingdom, the good principles of the
Napoleonic law, and its predecessors on this point, were overlooked,
and great trouble resulted. It was considered that Lombardy had
lost a most essential feature of her administrative legislation; and
appeal after appeal went hence to the ruling power to reestablish the
ancient principles and regulations.
Cases wherein their absence wrought serious hardship to indi-
viduals, and detriment to the agricultural welfare of the country,
were carried before the Aulic council, at Vienna; and finally, by the
advice of that superior administrative body of the Austrian govern-
ment, the question was set at rest; and the former law of 1804,- and
the several decrees on the same general subject which had closely
followed it, were reestablished by an imperial decree in 1820.
De Buffon says: "The deliberations of the Aulic council were
remarkable for their equity as well as for the enlightened views
expressed, including amongst other reasonings, the following consid-
erations:
250 ITALIAN IRRIGATION LEGISLATION.
"'Running waters in this country are necessary to the nourishment
of the land ; they increase its fertility and assure the products. *
Where water is so useful and contributes so powerfully to the growing
of the products of the soil, doubts of its influence on the public pros-
perity should not be raised. The new civil code should and
does not oppose anything on this subject contained in the former laws
and regulations. * Hence, under the terms of this Austrian
code, they should, and do, remain in force.'" — [De Buffon, Vol. II, p.
305, quoting the decision.
The following are the provisions on this point of the law of 1804,
thus re-declared to be the rule for Lombardy:
"ART. 51. Ever3r individual is bound to cede the land necessary for
the channels, the rectifications of the directions, the alteration of the
courses, or the embankments of rivers, canals, or public drainage chan-
nels; and, in general terms for all works connected with water, whicli
are designed for the public good, receiving compensation for the same
at a reasonable rate.
"ART. 52. Whoever desires to make use of waters, public or private,
of which he is the legitimate proprietor, for purposes of agriculture,
or for the movement of machinery and hydraulic works, may carry
them across the lands of others, paying the value of the soil occupied
by the water-course, according to an estimate of the same, with one
fourth in excess; and coming also under an obligation to maintain
the water-course, banks, works, etc.: and, further, to indemnify the
proprietor of the land for all damages whatsoever which the said land
may sustain.
"ART. 53. Such water-courses should be carried across the portion
of the estate where, according to the judgment of practical men, the
least possible injury shall be caused to the proprietor, or possessor,
reference being always had, however, to the convenient derivation of
the water."
In addition to the foregoing, the law of 1806, also reestablished in
1820, contained the following provision on this subject:
" ART. 16. Whoever desires to introduce water into a public canal,
with the view of taking it out again at a lower point, shall submit
his claim to the direction -general. It will be decided so as to cause
no injury to the rights of other parties. Objections to such arrange-
ment will be disposed of by the public administration."
These laws form the basis and principal part of all legislation on
the subject in Lombardy down to the time of the promulgation of
the Italian code in 1865.
Piedmont. — Following the code of Charles Emanuel III, published
in 177-0, and herein already transcribed, the legislation on the right
of way for waters in Piedmont was contained in the Sardinian code
of 1837. The very complete provisions of this code are worthy of a
closer examination than those of any law which preceded it, and
such examination will be given them in the next section of this
chapter, where the subject is arranged for comment.
RIGHT OF WAY FOR WATERS. 251
SECTION II.
THE SERVITUDE OF WAY TO CONDUCT WATERS.
NATURE OF THK RIGHT. *
The great questions which came up so early in Italy in the matter
of right of way for water, were with respect to sucli right, exercised as
a servitude: the legal occupation of one man's property by another,
for the purpose of leading water across it in a canal or other conduit,
without purchasing title to the property itself.
The exercise of such privilege was opposed on the ground of its
being subversive of the right of property; no person, it was main-
tained, should have the power by simple and summary process of
law, to acquire a right to continuously occupy for his purposes, any
portion of the 'property of another. Such occupation was virtually
a dispossession of one's estate in favor of another. The right of tak-
ing private property could only be exercised in the interest of the
public welfare — for the purpose of public use. Conducting water for
the irrigation of private estates was not a public use. The law defined
what was a public use, and made provision for the condemnation of
private properties, and the acquirement of title to them, when it was
necessary to take them for such use. These were the arguments
against the " right-of -aqueduct," as it was called.
On the other hand it was urged, that the application of water on
lands so far increased their productive capacity as to make such
employment a matter of great public concern and interest; that it
was a general necessity in the agriculture of the country; that it
could not be used without conducting it across intervening properties;
that even the waters of public canals could not be distributed away
from those canals without so conducting them in small private
canals; that in this connection, certainly, the conducting in such
small private ditches was a part of the system of the public canal, and
hence a part of the necessary machinery for the public use of the
waters; and that if conducting waters in a small private ditch as a
distributary from a public canal was the exercise of a public use of
the water, then the conducting of water from a public stream in a
similar ditch was equally an exercise of a public use of it, and hence
an act entitled to the privilege of occupying any property for the
purpose, on making due compensation.
*See. De Buffon, Vol. II, Ch. 42 ; also, Ch. 43, p. 279, and Ch. 44, p. 307; also, Smith, Vol.
II, p. 149.
252 ITALIAN IRRIGATION LEGISLATION.
FORM AND AMOUNT OF COMPENSATION.1
These questions were hotly discussed for centuries in Italy. As a
general thing, the feudal system of land tenure was opposed to the
exercise of the right to conduct water; and upon its downfall the ser-
vitude for this purpose of "aqueduct," and with it irrigation enter-
prise, received a great forward impulse.
It has never been proposed to take property for right-of-way for a
canal without due compensation; on the contrary, the custom and
law, as well, in Italy has always been to pay for the simple right of
using the strip of land necessary for a canal, at its full value with the
addition of a considerable percentage advance.
The facts that a canal or ditch across a property not only occupied
a certain portion of its area but oftentimes occasioned its owner
inconvenience, and that the presence of the water might be injurious
to the land, and other similar considerations, were not lost sight of.
And, furthermore, it was conceded by the advocates of the right, that
the use of water for private purposes, although a necessary general
use, was not a public use in the true sense.
De Buffon says : . " It resulted from these considerations, that besides
the recognition of the right as belonging to an irrigator, to cross with
his ditch the property of his neighbor, there was stipulated in favor
of the persons whose land was thus occupied an equitable regulation
which aimed to make amends for the difference of taking property
for public use proper, and occupying it for a purpose only indirectly
for the public benefit. This rule consisted in the payment of a cer-
tain sum greater than the value of the land occupied, and the repair-
ing of all damages occasioned by or accessory to its occupation.
"The amount of the additional indemnity, which is characteristic
of the right of aqueduct as established by all modern nations, is vari-
able in its nature, and has been repeatedly modified since its origin
in the fifteenth century, and varied between its actual value, and
twenty to twenty-five per cent advance.
" In Lombardy one pays one quarter more than the land occupied
is worth ; in Piedmont one fifth more, as an indemnity for damage,
on values estimated in a friendly way on the opinions of experts."
— [De Buffon, Vol. II, p. 279.
Baird Smith says that, in the earliest form in northern Italy, the
right of passage for waters across lands " was granted on condition
that some certain supply of water should be allowed to the proprietor
of the land from the canal traversing his property, in exchange for
the occupancy of the soil covered by it, the use of which was tem-
porarily lost to him."§ And he remarks that it is a curious circum-
stance that the same practice had been inaugurated at the earliest
*See, De Buffon, Vol. II, Chs. 42 and 43 ; also, Smith, Vol. II, pp. 149 and 272.
| See, Smith, Vol. II, pp. 147-150.
RIGHT OF WAY FOR WATERS. 253
stage of the modern development of irrigation under English rule in
India.*
In cases where water was not allowed in exchange for the land
occupied, the practice, in Italy, at first was to pay only the value of the
land covered by the works, and thus rendered useless, but, as time wore
on and canals became more plentiful, this bonus has ranged in some
quarters as high as fifty per cent on the valuation of the lands.
•
, FORMS OF THK RIGHT OF WAY QUESTION.
The primitive question was as to the right of conducting water
across agricultural lands in a ditch; and supplementary to this came
that of the right to cross with one such conduit- the path of another,
which acts in the early days of hydraulic works in Italy, before the
art of making "syphons" and other structures to facilitate the cross-
ing was understood, and later when such works were very expensive,
oftentimes necessitated the mingling of the waters in one channel
and their subsequent separation. And, then, as an outcome of this
practice came up a question as to the right of one person, by paying
an indemnity, to conduct waters for his benefit in the canal or ditch
of another.
In addition to these three forms of the right-of-way problem, as
connected with the matter of conducting water for use in irrigation,
the same questions came up in connection with the right to conduct
drainage waters from irrigation, drainage waters from works where
such waters had been produced by other than natural causes, and
drainage waters produced or accumulated naturally.
These varied natures, as to origin and purpose, of the waters to be
conducted, produced modifications in the treatment which the ques-
tions have received, and in the rulings which have been made and
incorporated into law on them.
These subdivisions of the subject were for the first time all fully
treated in the general laws of a country by the framers of the Sar-
dinian code, which was, in matters relating to irrigation, founded on
experience in and the necessities of Piedmont.
The present code for all Italy largely followed after this model, so
that I am led to present the subject upon the basis of the former law,
and then, for each subdivision, point out the comparisons to be made
with the latter which has taken its place.
* The same custom formed a feature in the outcome of irrigation development in early times
in California; and there now exist perpetual water-rights, in some quarters, granted in return
for a crossing of a field by a canal.
254 ITALIAN IRRIGATION LEGISLATION.
THK KHJHT OK AQUKDUCT ACROSS LANDS.
(Sardinian Code, Articles 622, 626, 627, 629, 640, 663, and 673. Italian Code, Articles 598, 602,
603,605,619, 648, owd 666.)
The Sardinian Code. — The provisions of the Sardinian code, which
specially related to the simple right of way for waters across lands,
were contained in seven articles, as follows:
"ART. 622. Every commune, corporation, or individual, is bound
to give a passage across their lands to water derived from rivers,
springs, or any other sources, by parties having a legal right to the
same, and wishing to employ it for irrigation, or for the use of works.
Farm houses, with the courts, threshing floors, and gardens attached
to them, are excepted from this ruling.
************
"ART. 626. Whoever desires to carry water across the lands of
another is bound to prove that the quantity of water whereof he is
the proprietor is sufficient for the purpose to which it is destined;
that with reference to the circumstances of the neighboring lands,
the slopes and other conditions of the channel, the course and the
free escape of the water, the line of passage demanded by him is the
most convenient, and at the same time is that which will cause the
least possible injury to the estates affected by it.
"ART. 627. The party desirous of carrying water over the land of
another is bound to pay in advance, and before the construction of
the canal is commenced, the estimated value of the ground to be
occupied, without deduction of the land tax, or any other burdens
which may be inherent to the soil, together with one fifth of the said
value in excess, and also compensation for immediate damages,
including those due to the division of the estate into two or more
parts, or any other deterioration which may follow on the crossing of
the land.
"In cases wherein the right of passage is claimed for any period
for less than nine years, the amount to be demanded by the owner
shall be limited to one half the value of the land occupied by the
works, with the fifth in excess, and compensation for damages as
above detailed. The claimant shall further come under obligation
to restore everything to its original state on the expiration of the
term agreed upon. If the party who has obtained a temporary right
of passage, should desire to change it into a permanent one, the pay-
ment of the half value of the land, and the other terms annexed to
the former, shall not be taken into account in settling the conditions
of the latter.
************
" ART. 629. In the event of the party who has obtained the right
of passage for a certain quantity of water, desiring to increase the
same, he shall be bound to show, first, that his canal has sufficient
capacity to carry the greater volume, and, that no injury can result
to the estate subject to the servitude. When the introduction of the
larger volume of water requires the construction of new works, the
nature and extent of these must be determined, and the value of the
soil to be occupied, according to Art. 627, must be paid prior to the
commencement of the said works.
RIGHT OF WAY FOR WATERS. 255
"ART. 640. The servitude of taking water by means of a canal, or
other visible and permanent work, for use in agriculture and industry,
or for any other object, is included among the number of continuous
and apparent servitudes.
* * * *********
" ART. 663. The right of passage for water does not give to the
party exercising it any right of property, either in the land aT the
sides, or forming the bed of the spring or water-course; and the land
tax, with all other burdens attached to the soil, shall be borne by
the proprietor of the aforesaid land.
* * _ * * * * ******
"ART. 673. The servitude is extinct if not used for thirty years."
THE RIGHT OF AQUEDUCT ACROSS LANDS — NOTEWORTHY POINTS.
The Sardinian Code. — The foregoing provisions of the Sardinian
code are replete with points worthy of special notice:
Observe that the right of passage is accorded even to every indi-
vidual across the lands of every other individual, municipality, or
corporation; and that it is accorded for waters derived from any
source whatever; but, under this laW, only for the purposes of irriga-
tion and motive power works. (See, Art. 622.)
Take notice, at the same time, however, that the right is extended
only to those who have a legal right to the waters, and that, hence, in
opposition to any such claim of right of way a land owner can force
the would-be conducter of the water to prove his claim of right to the
water itself, before he may exercise his privilege of acquiring a passage
way for it. (See, Art. 622.)
Thus, the water-right claim itself was immediately put upon its
merits. There could be no canal until there was a determined rigb*
to a definite amount of water to conduct in it; and such rights, as we
have seen, could only be acquired by regular issue of privilege, or
concession by the government, or by parties controlling the use of, or
owning, the water; or they could result from ownership of a spring,
or other water-source, such as a reservoir, or from riparian proprietor-
ship on a stream not considered of public importance. Here, then,
in these provisions on this collateral branch of the water-right ques-
tion, was a safeguard against the establishment of works, and of
diversions afterwards to be embroiled in litigation: the right to the
water had to be proven before a right for its passage could be acquired.
Furthermore, notice the fact that the right could not be acquired
for trifling and insufficient quantities of water: The " proprietor of
the" (right to use the) "water" had to prove that he had a sufficiency
of supply for his purpose, before he could impose upon his neighbor's
estates a servitude of passage and the presence of a canal built by
virtue of it.
256 ITALIAN IRRIGATION LEGISLATION.
"Very minute care was taken in the legislation of Piedmont to
secure at once the efficiency of works, arid the minimum of injury to
lands on which they were established. Experience had shown in
this country that parties frequently excavated a small well or spring
on lands belonging to them; and, though the quantity of water
derived from it was very trifling, they claimed the right of passage for
it through irrigated fields, or in the vicinity of previously existing
canals, with the view of drawing from these sources, by drainage or
percolation, an additional supply at the expense of their neighbors."
[Smith, Vol. II, p. 271.
The provisions which stopped this sort of imposition were con-
tained in article 626, where we have found, also, the certain other
salutary items next noticed.
The location and design of a canal or other conduit for water across
the lands of another, had to be in conformity to good judgment, not
only with respect to the particular service for which it was designed
by its proposed constructer, but with all due regard to the continued
convenient use and fruitful quality of the lands designed to be
crossed; and the determination of these points was, in common with
all technical and practical questions, connected with adjustments of
irrigation agreements, left to hydraulic or agricultural engineers, as
experts.*
" It became further clear that merely to secure the proprietor of the
land from immediate pecuniary loss was not sufficient. In fixing the
directions of their irrigation channels, proprietors of water might be
influenced by various motives; they might desire to pass through land
previously irrigated, that they might have the benefit of infiltration,
or over land where there were indications of subterranean spring
waters, of supplies from which their canals would derive advantage:
or they might wish to benefit one neighbor by carrying water near his
land, or to injure another by a contrary course.
"The government saw that it would be necessary to place limits on
this freedom of choice, and hence originated the rule that prior to any
special direction being determined for the canal, evidence must be
laid before the competent authorities that the line selected was tin-
least injurious to all parties concerned." — [Smith, Vol. II, p. 150.
Following out this line of policy, exacting a well determined and
defined right in each case where a passage is demanded for waters,
article 629 of the code, as we may have noticed, recognizes the fact that
any such right was accorded only for a certain quantity of water and
no more, and that when this amount was to be increased, further pro-
ceedings had to be conducted, and additional indemnity had to be
paid.
This provision was made necessary by the fact that any material
increase in the waters of a canal necessitate its artificial enlargement,
* See, Smith, Vol. II, p. 271.
RIGHT OF WAY FOR WATERS. 257
endanger its banks and the adjoining lands by overflow, force its arti-
ficial enlargement by scouring out its beds and caving down its banks,
or cause great additional loss by percolation into the soil of its bed
and banks.
The experience of the country had made these things apparent;
and it had also made apparent the fact that right of passage for
any limited supply of water having been acquired and paid for, not
infrequently its possessors would impose upon the land owners by
forcing the flow of the canal, either for temporary convenience to
supply some immediate necessity, or with the view of causing a perma-
nent enlargement of the channel, and thereby acquire water-way
for a volume of flow materially more than they had demanded and
acquired the right for at lirst.
As will be seen elsewhere in this report, by a provision of this same
code, the property owner, in consequence of this same line of impo-
sition practiced by conductors of water, had always the right to
demand that the grade plane and cross sectional dimensions of a canal
through his lands should be fixed at convenient and necessary inter-
vals along the line, by permanent and solid constructions of masonry,
or other unwearing material, so that, at any time, should the canal
bed be washed out at intermediate points, it could be reestablished
at exactly its former dimensions and grade by means of the guide
furnished by the masonry or other solid structures along its line.
These structures also served the purpose of guides by which to rees-
tablish the section and bottom plane of the canal when each year, in
case of silt deposits having occurred, it became necessary to clear it
out for the season's work.
As to conditions attached to the simple right of way for water
across lands, it remains only to notice the exception to the enforce-
ment of the servitude, which was in the case of passage across gar-
dens, dooryards, or the sites of houses. There was a vigorous fight
against this reservation in Piedmont, and, in fact, in some former
laws there was no such reservation, but the framers of the Sardinian
code took the view that only in cases of works declared to be of public
utility — where the right of condemnation and acquirement of title to
the land, should the right to dispossess a man of his house or its im-
mediate surroundings be accorded to another.
COMPKVSATIOX FOtt RIGHT OF WAY.
The Sardinian Code. — Under the terms of this Sardinian code the
proprietor who obtained a right of way for waters thereby acquired a
right to the use of the strip of land necessary for the purpose, and he
17 u
258 ITALIAN IRRIGATION LEGISLATION.
could devote it to no other use. He obtained no right of ownership
in the land itself. The owner of the property retained this, and even
had to pay the land tax on it for all time, although he had no use of
it. (See, Art. 663.)
The right of the possessor of the servitude of passage was "a con-
tinuous and apparent servitude;" which meant that, unless express 1 \
limited in an agreement, it continued for all time, even though not
exercised continuously — saving the condition imposed on all such
servitudes, whereby they were forfeited by non-use for thirty years.
(See, Arts. 640 and 673.)
But, although the right acquired was only one of use, and not of
ownership of the land occupied by the canal or ditch, the possessor
of it had to pay in advance the estimated value of the land occupied r
without deductions from any cause, together with one fifth of its
value in excess, for the right of occupation and use; and besides that
he had to pay a sum as compensation for damages to the balance of
the estate crossed, by reason of inconvenience in its use, caused by
the presence of the canal or ditch, or by reason of any probable injury
caused to lands by seepage, or otherwise. (See, Art. 627.)
In consequence of this possible damage, also, as will be seen else-
where, the owner of a canal had to keep it in a certain state of repair
and efficiency, and to do all in his power, on demand, to prevent per-
colations into adjoining lands.
And not only had the would-be conducter of water to pay for his
original right to cross an estate with his ditch, or canal, but he was
limited to the right to conduct the amount of water stipulated and
in the canal denned, and any exercise of right in excess of such pre-
scribed privilege had to be sanctioned by a renewed negotiation and
agreement, and obtained by an additional payment. (See. Art. 629.)
Finally, as may have been noticed, there were provisions for tem-
porary as well as permanent rights of way, which were made to meet
the convenience of tenants under lease of lands. Such leases were
usually of nine years duration in Piedmont, and oftentimes a tenant
would desire to obtain additional or other waters for a field for the
period of his lease, only.
To cover these cases the second paragraph of article 627 made pro-
vision that the right might be acquired for such period or less, by the
payment of one half the value of the land occupied, with the one
fifth additional and the resulting damage to the lands crossed, as
before explained.
It is noticeable that a temporary right-of-way could not be con-
verted into a permanent one by the payment of the other half value
RIGHT OF WAY FOR WATERS. 259
of the land. Could this have been done, landlords would have taken
advantage of the necessities of their tenants, to acquire permanent
rights-of-way for waters for their estates, at half rates. But the law
did not allow this; so that tenants were put in a position to deal on
better terms with landlords, when additional supplies of water were
required for an estate which they were farming.
This completes all necessary remarks on the articles of the Sar-
dinian code relating to right-of-way for waters across lands by inde-
pendent channels. It is now well that the provisions of the new code
for all Italy be examined for comparison on this point, before going
on to the next classification of the right-of-way matter.
The Italian Code. — The rulings of the new Italian code that take the
place of those of the old Sardinian, upon which comment has just
been made (articles 622, 626, 627, 629, 640, 663, and 673), are contained
in its articles 598, 602, 603, 605, 619, 648, and 666, to be found in appen-
dix II, and to which with the notes accompanying them, reference
may be made in continuation of these points concerning "the right
of aqueduct across lands."
THE RIGHT OF AQUEDUCT ACROSS OTHER CANALS.
(Sardinian Code, Articles 624 and 625. Italian Code, Articles 600 and 601.)
This question came up at an early period ih the development of
irrigation in Italy, and for a long range of time it was decided on the
basis of the question of conducting water in a common channel which
is next spoken of herein. The waters at a point of crossing of two
canals or water-courses were taken into a common channel for a short
distance, if it was desired to cross almost immediately, and then sep-
arated into two channels again by some structure designed to repar-
tition them proportionately.
Thus this necessity for the crossing of streams or canals was prob-
ably the form which the question of a common channel took in its
earliest stages, and the mingling of waters for the short space at cross-
ings possibly suggested the mingling for purposes of economizing in
conducting it for long distances.
Be this as it may, as more fully explained under the next sub-
heading, the practice of uniting waters of separate owners and again
partitioning them, gave rise to so much trouble, that the construction
of special works to- effect crossings of streams, without such mixing,
was stimulated; and with success in this practical solution of the
question came denial, in the laws, of the right to the mingling of
waters; and the bare recognition of the right to cross one canal with
260 ITALIAN IRRIGATION LEGISLATION.
another, in the way most suitable to the locality, and under certain
restrictions, that, except in rare cases, defeat the pra'ctice of mingling
altogether, is all that is left of the former right to cross as one chose.
The Sardinian Code. — The following are the provisions of the Pied-
montese code on this point:
" ART. 624. It is also permitted to carry water across existing canals
and water-courses in such manner as may be most expedient, and
best adapted to the locality, and to the condition of the said lands
and water-courses. It is necessary that the works to be constructed
for the above mentioned purpose shall not stop, check, or accelerate,
or in any other way change the course or the volume of the water
flowing in the canals or water-courses.
"ART. 625. In carrying water across public or district roads, or
across rivers or torrents, the special rules of the department of roads
and waters* shall be observed."
THK RIGHT OF AQUEDUCT ACROSS OTHKR WORKS — NOTEWORTHY POINTS.
The Sardinian Code. — The true meaning of the foregoing article
624 is only appreciated when we thoughtfully read the conditions
attached to the apparently free right which it gives the owner of
one canal to construct his channel-way across the work of another,
and when we know something of the interpretations which have
been given it, and the practice under it.
The passage, as we .observe, must be effected "in such manner as
may be most expedient and best adapted to the locality and to the
condition of the canals and water-courses," but the works to be con-
structed in effecting the crossing " shall not stop, check, or accelerate
the speed of, or in any way change the course or the volume of the
water" crossed.
Now, no crossing of one flow of water by another in the same chan-
nel could be effected under these conditions: anything like a direct
flow across would "change the course" of the current sought to be
crossed; except under special arrangements involving a change of
grade of such water-course, such an attempt would "check" its cur-
rent above and "accelerate its speed" below; and any attempt at thus
crossing, at all, would increase its volume and then diminish it again.
Furthermore, any use of a common channel is virtually prohibited
by articles 623 and 628, which are to follow under the next subhead-
ing; and the crossing of waters through other waters involves a
mingling of the two, a use of a common channel, and a re-separation,
even though the distance of flow together be the shortest possible.
The fact is that this article (624) was intended to do away with
* The civil engineering bureau of the government.
RIGHT OF WAY FOR WATERS. 261
crossings involving mingling of waters, and the conditions as to the
manner of the crossing and its adaption to the condition of the sev-
eral works, contained in the first clause, were intended to regulate
the construction of syphons under or aqueducts over these water-
courses in effecting the passage.
The Italian Code.— In continuation of this subdivision of the topic
attention is now asked to appendix II, where in articles 600 and 601
of the new Italian code will be found the items of the present law
which supplanted those contained in 624 and 625 of the old Sardin-
ian code upon which I have just commented, and where in the notes
following these I have brought the subject of "The right of aqueduct
across other canals" down to date.
THE RIGHT OP AQUEDUCT BY A COMMON CHANNEL.
(Sardinian Code, Articles 623 and 628. Italian Code, Articles 599 and 604.)
The right to make use of an existing channel or canal, in which to
conduct waters — mingling them with waters of other ownership, and
then reclaiming and separating out an equal or equivalent quantity,
and diverting or drawing it off at some point below — is one which
found place amongst the customs of the Italians at a very early
period.
Lombardy. — At the time of the construction of the greatest of the
ancient canal works in this valley — a truly monster canal, built dur-
ing the twelfth and thirteenth centuries — there had been several
other works of considerable magnitude, together with their branches,
carried through the region to be traversed by the new. The art of
hydraulic construction had not yet accomplished the building of large
size syphon tubes under, or aqueducts for great volumes of water over
existing water-courses and such works, too, would kave been exceed-
ingly expensive for the times.
Necessity, at this time, brought about the practice of uniting the
waters of the old works crossed with those of the new works con-
structed, and then separating them again at points below, according
to the gauging of outlets, or the proportioning of channels.
This is looked to as the beginning on a large scale of a practice
which grew into almost a fixed custom in Lombardy, and for a long "
time was regarded as embodying one of the principles of the custom-
ary law of irrigation.
It never found place, as a servitude to be laid on private works, in
the written statutes of Lombardy, however, and its practice brought
about such disputes over the measurements on the repartitioning of
262 ITALIAN IRRIGATION LEGISLATION.
waters thus mingled, that the building of structures to avoid the
mingling, by dipping one canal down under the other, or carrying it
around over it at points of crossing, was greatly stimulated, and the
common use of channels, without common and free consent, was
prohibited. Thus, article 5 of the Milanese code, transcribed in the
first section of this chapter, though not explicitly so, is virtually a pro-
hibition of the mingling of waters in a common channel.
But, in the meantime, there had grown up a very wide range of
practice of this mingling and repartitioning method of crossing and
conducting waters of different owners, and the annals of Italian irri-
gation literature are plethoric with accounts of litigations to which it
gave rise. The advance in hydraulic art — in the measurement of
waters— has, however, made these troubles less frequent, as the prac-
tice became more perfect and less open to objection.
The privilege of introducing waters into the government canals
and then reclaiming them at a point below, was one specially open to
abuse and eagerly sought after.
De BufFon, speaking of the privilege granted to individuals by the
Austrian rulers of Lombardy, to introduce water into the royal canals,
and then reclaim it at a lower point, says " that having all the appear-
ance of an equitable concession, the right has hardly ever failed to
degenerate into an abuse."
The absence of means and even of the possibility of accurate gauging
of the amount taken in, and a just partitioning off of the amount taken
out in return, and the opportunity, through the absence of continuous
guarding, to take more than was due, was an incentive to the desire
to obtain the privilege.
"Had such means existed at the times of which we write, demands
for the introduction of private waters into the grand canals would
have been less frequent.
"Justice and g<5od sense are in accord in rejecting the idea of simi-
larity between the simple conducting of water over the property of a
neighbor, and the exercise of a right to make use of his canal already
existing."
Damage caused by the construction of a canal across lands may be
readily estimated and liquidated, but the injury which may be inflicted
by one dishonestly inclined, upon the owner of a canal by introducing
his waters therein and then reclaiming them at a point below, is a
cumulative one past all finding out, and not to be estimated at all in
dollars and cents alone.
"The owner of a canal, upon whom it is sought to impose such a
servitude, may well reply: Our waters would be so mixed that inde-
pendently of the injury you could cause me in retaking from the canal
RIGHT OF WAY FOR WATERS. 263
more water than you had turned in, you oblige me to keep a constant
surveillance over you while doing so, and you compel me to maintain
a perfect understanding with you in regard to the maintaining, clear-
ing, and stoppage, or continuance of flow in the canal,- on terms upon
which we probably could not agree; in a word, you impose on me a per-
petual community of interest which I have not sought, but opposed."
[De Buffon, Vol. II, pp. 282-286.
The modern legislation of Lombardy contained this one provision
on the subject in hand, and this was embodied in the decree or law
of 1806, to which reference has heretofore been made.
"ART. 16. Whoever desires to introduce water into a public canal,
with the view of extracting it again at a lower point, shall submit his
claim to the direction-general. The case will be decided in accord-
ance with Art. 4 (i. e., so as to cause no injury to the rights of other
parties). Objections to this arrangement shall be disposed of by the
public administration."
It will be noticed that this article applied only to the introduction
of water into the public canals of the State, and that it set up no
basis of a right of servitude in connection with such license, but
made it a mere privilege, to be extended or not extended, according
to circumstances and the judgment of the superior administrative
officer in charge of the works.
It formed no basis for the assertion of right to use a preexisting
private canal, and, as a matter of fact, the right has never been
asserted as a servitude in modern times in Lombardy, and rarely
asked, and less rarely granted, as a privilege, in the case of the gov-
ernment canals.
Piedmont— In Piedmont this right first found place in the laws of
the latter part of the sixteenth century, but not until the last part of
the eighteenth did it assume a definite and somewhat complete form
in the legislation of the country.
The edict of Charles Emanuel, published in 1770, and heretofore
quoted, established the right in such broad and sweeping terms that
great trouble resulted, and it became necessary to abolish it.
The Sardinian Code. — The framers of the Sardinian code, long after-
wards (1837), followed out this last line of policy in the wording of
the following articles:
"ART. 623. The canal required for the water shall be executed
entirely at the expense of the party claiming the right of passage, and
he shall have no right whatsoever to demand the said passage through
canals previously in existence, and destined for the use of other
waters. The proprietor of any farm, however, whereupon a canal
carrying water of which he is the legal owner already exists, may
prevent the opening of a new canal on the said farm, by offering to
264 ITALIAN IRRIGATION LEGISLATION.
give a passage to the waters of another through the preexisting chan-
nel, always provided that this can be done without manifest injury to
the partv claiming the right of passage.
• * " * * * * * * *
"ART. 628. Any one availing himself of an offer made under the
terms of article 623, to allow his supply of water to flow through tin-
canal of another, is bound to pay, in proportion to the volume of
water introduced by him, his share of the value of the land occupied
by the works, of the excess and compensation above (in article (1-27;
fixed, and, further, to defray in the same proportion the costs for
repairs, maintenance, and every expense which the introduction of
said water may have rendered necessary."
THE RIGHT OK AQUKDUCT BY A COMMON CHAXNKL — XOTKWOKTH V POINTS.
The Sardinian Code. — As a commentary on the last two articles of
the Sardinian code, I quote the words of Baird Smith, as follows:
"The vexed question of the right of passage through previously
existing channels has been very judiciously disposed of by the Sar-
dinian legislation. To have continued this right to the possessor of
water in the absolute manner established by the ancient legislation
of Piedmont, would, as experience had already shown, have led to
constant and harrassing disputes. The edict of Charles Kmaimel, on
which the right spoken of was founded, had been followed by repeated
lawsuits; .and though the judicial tribunals had necessarily decided
all cases in accordance with its provisions, the senate of Turin had
especially recorded its opinion, that the law was one of great severity.
"It is also recorded that there was scarcely ever a single case in
which the result of the union in the same canal, and the subsequent
division of the water belonging to two different proprietors, were
satisfactory to both."— [Smith, Vol. II, p. 270.
De Buffon, also, has written of the necessity for, and justice of, this
portion of the Sardinian code. Here are his sentiments:
"The power of acquiring a right of way for waters through existing
canals, which, as we have seen, was admitted by the ancient legisla-
tion of Piedmont, has, for good reasons, been left out in the formation
of the new code. The authors of this code found, witli
reason, that it was unjust to impose upon proprietors the obliga-
tions to receive strange waters into their canals, races, or ditches, as
experience had proven that such mingling as resulted therefrom
seldom failed to lead to litigations, disastrous to all interests."— [De
Buffon, Vol. II, p. 329.
Analyzing these articles 623 and 628, we find the right of passage
through the canals of another expressly abrogated — whoever acquired
a right of way across lands under article 622, already considered,
under this article 623 had to construct the works for carrying the water
entirely at his own expense; except in the case where the owner of
the land to be crossed, possessing a canal which might serve for the
accommodation of the waters desired to be conducted, might, in
RIGHT OF WAY FOR WATERS. 265
order to save his land from being cut by another channel, offer to
accord the right to use his canal.
Then article 628 makes provision for his compensation, if his offer
is accepted, for the use of his work and the occupation of his land.
The Italian Code. — Following this subject of "The right of Ttqite-
duct by a common channel," I now invite attention to articles 599
and 604 of the new Italian code, found in appendix II, and which
took the place for all Italy of the foregoing 623 and 628 of the old
Sardinian code for Piedmont. And also, in notes to the Italian code
articles will be found a continuation of the remarks already made
on the points of this subheading. m
THE RIGHT OF AQUEDUCT FOR WATERS OF DRAINAGE AND FOR WARPING.*
(Sardinian Code, Article 630. Italian Code, Articles 609, 610, 612.)
The right of passage for waters of natural drainage has always been
recognized as a servitude over lower lands, due to their situation; but
the right to discharge natural drainage waters on to lower lands at
points other than where their original course led them, or to increase
the volume of drainage waters artificially, has been the subject of
legislation.
Lombardy. — The chief part of the modern laws of Lombardy on
this point were embraced in article 54 of the decree of 1806, which
first declared that " lower lands are bound to give passage to waters
flowing from higher levels." It will be noticed that this was a dec-
laration of a right of servitude, not only in favor of natural drainage
waters, as was the case in other codes spoken of, but it included all
waters draining from higher lands, thus including waters which may
have been caused to flow down by artificial means, or which had been
brought to the lands by artificial works.
Not, however, to injure the owners of such estates as might be sub-
jected to this servitude, the second paragraph of this article contains
the following provision: Referring to articles 51, 52, and 53, which
relate primarily to rights-of-way for waters for irrigation, but are also
made to apply to rights for drainage waters, and which contain obli-
gations on the proposed conducter of water to pay for the privilege,
etc. This article 54 further says :
" In addition to the obligations imposed by the preceding articles,
the proprietor of the upper lands is bound to defray the cost of such
drainage channels as may be necessary, and of such works of defense
* See, De Buffon, Vol. II, pp. 194-200, and 333; also, Smith, Vol. II, pp. 158, 268, and else-
where.
266 ITALIAN IRRIGATION LEGISLATION.
as may be required to protect the lands through which the waters
pass; as, also, to repair any damage which at any time the lands may
sustain. The preceding article does not affect special agreements
between proprietors, nor rights of servitude acquired by process of
law."— [See, Smith, Vol. II, p. 158.
This above is an example of most extended application of the servi-
tude of drainage from higher to lower property. Seeing that it includes
the right for all waters from the higher estate, whether naturally run-
ning off or not, in with those produced naturally, and puts the burden
of receiving them upon the lower estate, as a natural servitude.
In Italian the word colatura is used as a name for surplus waters
which have been used in irrigation — the drainage waters from irri-
gated fields; and where rice and meadow lands are cultivated the
quantity of these colaturas is very large, amounting in some cases to
half as much water as is originally applied to the land.
The right of passage was accorded in Lombardy for colaturas upon
the same terms as the original waters for irrigation. They were them-
se-lves used again in irrigation, and were held to differ in the eyes of
the law in 110 respect from waters directly derived from a primary
source, such as a river or spring.
Piedmont Sardinian Code. — The following article of the Sardinian
code embraced the modern legislation of Piedmont specially applica-
ble to the matter of "The right of aqueduct for waters of drainage
and for warping:"
"ART. 630. 'The terms established in the foregoing articles for tin-
passage of water apply equally to the case of the proprietor of a
marshy estate, who desires to improve the same either by the pro<-< —
of warping (colmata) or by the excavation of one or more channels of
drainage.
"Should opposition be made to the estate by parties having rights
to the water on or flowing in any way from the same, the tribunals,
in deciding, ought to have due regard to sanitary and agricultural
interests, and also to the use made of the water by the objecting
parties."
Herein we notice the importance attached not only to drainage,
but also to the process of cblmatage, spoken of on page 82, ante, and
elsewhere, that they should be placed on the same footing with irri-
gation in the matter of acquiring right to passage for waters to effect
their purpose.
" It is held that the drainage or the improvement, by the process of
warping*, of marshy. localities has an influence on the general good of
the community scarcely inferior to that of irrigation itself, and that
he who is prepared to invest his capital in changing miasmatous
* Colmataye, (French), or colmata (Italian).
RIGHT OF WAY FOR WATERS. 267
swamps into fertile fields is entitled to privileges at least equal to
those afforded by the laws to the proprietor of water employed in
increasing directly the products of agriculture and industry." — [Smith,
Vol. II, p. 268.
The second paragraph of the foregoing article (630) applies to cases
where rights to the use of drainage waters drawn from lands-ki-a
marshy state, which have accrued by use or otherwise to the benefit
of some one situated below, are to be interfered with by the owner
so improving the estate by more thorough drainage as to intercept,
stop, or change the outfall of the drainage waters; and the existence
of the law is an evidence of the thoroughness of the system which
thus usefully employs in irrigation even the waters of marshes and
swampy tracts to an extent that would require and bring about the
passage of a special clause in the protection of such rights.
The right of way for drainage waters from irrigation (colaturas) is
also assured by the provisions of this Sardinial code, seeing that the
privilege is accorded for all waters to which a legal right is had by the
person who desires to conduct them, and seeing that these waters are
devoted to re-application in irrigation or some other useful purpose.
The Italian Code. — In conclusion of this subject of "The right of
aqueduct for waters of drainage and for warping," the attention is now
directed to articles 606, 609, 610, 611, 612, 637, 654, 655, and 656,* which
contain the relevant matter of the present law, and also to notes
relating thereto, which are in conclusion of the remarks already made
under this subheading.
SECTION III.
RIGHT OF AQUEDUCT FOR PUBLIC WATERS.
CONDEMNATION FOR PURPOSES OP PUBLIC UTILITY.^
(Sardinian Code, Articles 441 and 442. Italian Code, Article 438.)
Articles 622 to 629 of the Sardinian civil code, as we have seen, pro-
vided for the establishment of a right of way for waters through the
estates of others. The right to be acquired under these articles was
a simple servitude upon the property crossed, and did not give the
owner of the canal or water any right of ownership in the strip of
land occupied by his work. The application of these principles was
intended to provide for cases of the most insignificant kind, even
where any one had a piece of land large enough to make a garden
patch worth irrigating, and water enough to take to it for the purpose.
* See, Appendix II.
g See, De Buffon, Vol. II. pp. 333-337; also, Smith, Vol. II, pp. 274-278.
268 ITALIAN IRRIGATION LEGISLATION.
In the construction of great works, whether of a private or public
ownership, intended to irrigate considerable areas of land, the Sardi-
nian government recognized the presence of the element of public
utility in the project, and provided in its code for the acquirement
by condemnation, or the exercise of what we term the power of emi-
nent domain, of an absolute property right in the lands occupied by
the canal and its necessary accessory structures. The following are
the provisions spoken of:
"ART. 441. No one can be compelled to cede his property, or to
allow another to make use of it, unless for objects of public utility,
and on receipt of a just compensation, payable in advance.
" The works of public utility, and the property to be occupied by
the same, are determined under provisions emanating from the sov-
ereign.
"The rules to be followed in the aforesaid cases shall be fixed by
special laws and regulations.
" ART. 442. When the parties cannot agree before the administra-
tive authority on the account of the indemnity to be paid, the disputes
shall be decided by the legal tribunals."
Following this, and in 1839, a long special law was passed regulat-
ing this matter of expropriation of private property for purposes of
public utility, the chief provisions of which are as follows:
" ART. 1. Works of public utility are tlnxe executed on account of
the royal domain, of the state administrations, of provinces, and of
communes. Such works, and the property to be taken possession of
in the execution of the same, shall be determined under article 441
of the civil code, by letters patent issued under the advice of the
council of state.
"ART. 2. Works executed by associations or single individuals
may also be declared of public utility by appropriate letters patent,
whenever their importance or their influence on the development of
the general prosperity is such as to warrant this character being attrib-
uted to them."— [See, Smith, Vol. II, p. 274.
This law made provision in minute detail for the conducting of tin-
sale of the lands to be occupied by the works: First, prescribing in
thirty-seven articles the steps and conditions of procedure when the
arrangement could be amicably consummated between the parties,
with the mediation of the intendants of the provinces; and then, in
twenty-three additional articles, specifying the forms of procedure,
etc., to be had before the courts in carrying out the enforced sale, if an
amicable agreement could not be arrived at.
The general object is to insure a fair compensation for the ground
occupied, and for the injuries or inconveniences occasioned by its use
for the purpose desired, to be estimated upon the basis of the returns
from the land for the ten years preceding the date of the proceeding,
or on other equally exact data for the purpose.
RIGHT OF WAY FOR WATERS. 269
The first estimates were to be made under the direction of the
administrative authorities; but upon appeal to the courts, if demanded
by either party at interest, new estimates were made, under the direc-
tion of the courts, by engineers, selected amicably by the disputants,
if possible, or, otherwise, appointed by the court itself.
This law was commented upon and put in operation by a number
of administrative regulations, which further explained the forms of
procedure to be had and the application of the articles of the law.
As to just what construction was to be placed on the term "public
utility," the following clauses are in point:
"Whenever the limit of simple private interest, whether in the
case of corporate or individual proprietors, is passed, and the work
is designed for public service, the declaration of public utility may
be claimed without reference to the special nature of the work itself.
"Therefore, canals and ditches, provided they have a material
influence upon public prosperity, become included among those
works, on behalf of which the declaration of public utility may be
made.
"In fact, although the civil code has established certain special
rules for canals and ditches, with the view of facilitating their con-
struction by private parties, it does not thence follow, that, when they
present all the characteristics of other works of public utility, the
benefits secured by the laws to such works should be denied to them.
" It is, therefore, to be concluded that when projected canals have
the characteristics of works of public utility, they shall be so declared,
with the view of applying to them the provisions of the law on dis-
possession."— [Trans., Smith, Vol. II, p. 277.
These articles of the laws and administrative regulations so very
fully and plainly explain this branch of the subject that comment is
unnecessary.
To review, in one paragraph, the bearing of all that has been said
about the right-of-way laws in Piedmont, it may be said (1), that any
person, association, or corporation, having a valid right to any certain
amount of water sufficient for and to be applied to a declared useful
purpose in agriculture or in the creation of power by water-power
works, could acquire the use of the strip of land necessary upon
which to construct a canal or other conduit to convey the water from
the place of its source to the point of its intended use, as a simple
servitude, by observing due forms of demand, paying just compensa-
tion for lands and damages in advance, and engaging to so use and
maintain his works as to cause no avoidable damage to the owners
of the lands traversed; and (2), that when the use of the water was
such as to be of public benefit, authority might be had wholly to
condemn, pay for, and acquire title to the strip of land necessary upon
which to locate the work; and (3), that "public utility" in the case
270 ITALIAN IRRIGATION LEGISLATION.
of irrigation meant the use of waters by a number of individuals, a
neighborhood or community of irrigators.
Of this Piedmontese system De Buffoii wrote:
"It takes but little reflection to realize that the modern legislation
of Piedmont on the subject in question, is as complete and satisfac-
tory as could be desired. Furthermore, the results of it are more
convincing than reflection on the laws themselves could be. It may
be said that agriculture cannot hope to be more truly and efficiently
protected than it is in this country, especially by the facilities which
legislation has given for the extending of irrigation." -[De Buffon,
Vol. II, p. 337.
The Italian Code. — In conclusion of this subject of a Condemnation
of right of aqueduct for works of public utility," attention is asked
to article 438 of the Italian code, in appendix II, and to the remarks
following it.
AUTHORITIES FOR CHAPTER XIII.
De Bufon.—[Work cited as an authority for Chaper IX.] See, Vol. II, Book VIII, Cnaps. 42
to 45 ; Book IX, Chap. 47, Div. II. and Chap. 48; also, See Vol. I, Book II. Chap. VII,
Div. I. »
Smith.— [Work cited as an authority for Chapter IX.] See, Vol. II, Part IV, Chap. I, Sec. 2 ;
Chap. II, Sec. 2, and elsewhere in Vols. I and II.
Sardinian Code.— [Work cited as an authority for Chapter X.] See, Arts. 441, 442, 622 to 630,
640, 663, and 673.
Italian Code.— [Work cited as an authority for Chapter X.] See, Arts. 438, 598 to 605, 609 to
612, 619, 648, and 666, and remarks appended to each.
CHAPTER XIV.— ITALY(G);
IRRIGATION ORGANIZATION AND REGULATION.
SECTION I. — litigation Organization.
Causes of and Necessity for Organization.
Social Tendency of Irrigation in Italy.
Formation of Irrigation Associations.
Geneva! Law in Lombardy.
SECTION II. — Organization and Management.
The General Association West of the Sesia — Piedmont.
General Organization and Management.
The Government and the Association.
SECTION III. — Organization of Associations.
The present Law for all Italy.
Voluntary Association of Landholders.
Compulsory Formation of Associations.
SECTION I.
i
IRRIGATION ORGANIZATION.
CAUSES OF AND NECESSITY FOR ORGANIZATION.*"
As heretofore written, the canal works of Italy, for the most part,
had their growth in times when only rulers, governments, rich civil
and ecclesiastical corporations, wealthy nobles, and large landholders
could afford to undertake such enterprises. There was no such thing
as companies or associations of small farmers taking water out on
their own account for their own use. The river channels and topog-
raphy and climate of the country were such that the diversion of
waters necessitated the construction of great works, built solidly of
costly materials, at enormous expense; so there were but few small
private canals, and no cheap works of diversion from the natural
streams, such as it has been possible to construct and maintain in
California,
Then again, the landholdings were much consolidated into few
hands in years long gone by, and the practice of irrigation has
*See, De Buffon ; also, Smith, generally.
272 ITALIAN IRRIGATION LEGISLATION.
tended to make the rich richer and the poor poorer — to further
increase the size and diminish the number of farms, and reduce the
farm workers from the grade of small landholders to those of renters
of and laborers on other people's property.
Thus, the canals are owned by the government, by wealthy nobles,
ecclesiastical and municipal corporations, and very generally not by
the irrigalors, and the waters are commonly sold by volume accord-
ing to established units of measure and standards of measuring
devices.
The lands are generally held by rich non-working owners, and are
farmed by irrigation under the management of professional superin-
tendents, or are divided into small tracts and leased, for terms, gener-
ally, of nine years duration, to the real working irrigators of the
country.
SOCIAL TENDENCY OK IRRIGATION IN ITALY.
Besides the authors, after whom, in a general way, I have written
the foregoing paragraphs, the writings of another deserve special con-
sideration on this point.
I quote from a paper written by the late Hon. George P. Marsh, for
many years United States minister at the court of Italy, an author of
learning, observation, and thought in the special line of the physical,
social, and moral effects of man's greater occupations on the earth's
surface.
Speaking of the effects of irrigation generally in Europe, but from
personal observation, more particularly, in Italy, where the paper was
written, this author says:
"With an important exception,* which I shall notice hereafter, the
tendency of irrigation as a regular agricultural method, is to promote
the accumulation of large tracts of land in the hands of single pro-
prietors, and consequently to dispossess the smaller landholders."
He then gives some reasons for this, which I shall desire to present
in a later part of this report, so will not transcribe them here, but I go
on with his narration of the facts to our point :
" European experience shows, as might be expected from what has
just been said, that under such circumstances, as well as where waters
belonging to the state are farmed and relet by private individuals,
water-rights are a constant source of gross injustice and endless liti-
gation. The consequence of these interminable vexations is that the
poorer, or more peaceably disposed landholder, is obliged to sell his
possessions to a richer or more litigious proprietor, and the whole dis-
trict gradually passes into the hands of a single holder, or family, or
corporation. Hence, in the large irrigated plain lands of Europe,
*This exception is in the case of several of the irrigation regions in the south of Spain, where
the water rights have been held by the peasant proprietors from the time of the Moors.
IRRIGATION ASSOCIATIONS IN LOMBARDY. 273
real estate is accumulated in vast tracts of single ownership, and
farming is conducted on a scale hardly surpassed in England, or even
on the boundless meadows and pastures of our own west.
"The small cultivators who sell their paternal acres must either
emigrate, and so diminish the resident population, or sink from the
class of land owners to that of hired laborers on the fields which,
once their own, are their homes no longer. Having no proprietary
interest in the soil they till, no mastership over it, they are, as I have
said elsewhere, virtually expatriated, and the middle class, which
ought to constitute the true moral as well as physical power of the
land, ceases to exist and enjoy a social status as a rural order, and
is found only among the trading and industrial population of the
cities." — [Marsh; see, Report Department of Agriculture, 1874, pp.
364-366.
Although this picture of experience is in a general way true for the
irrigation regions of central Spain, of France, of Belgium, and other
central European countries where irrigation is practiced on a large
scale at some notable localities, it is specially true for Italy and par-
ticularly of Tuscany and the regions of the valley of the Po, which
we are now considering.
With these antecedents and this tendency of canal enterprise and
irrigation practice, grew up the gravest conflicts between the irriga-
tors and the holders of water-rights — the canal owners. The small
land proprietors and irrigators found that singly they could not hold
their own: they must organize locally, and, as a body in each neigh-
borhood, district, or subdistrict, treat with those who supplied them
with water. This necessity brought about the demand for a law pre-
scribing a form for such organizing, and recognizatioii as legally
constituted bodies. And, hence, as a modern outcome, we find the
law which I am now about to transcribe.
rOK.MATION ()!•' IRRIGATION ASSOCIATIONS — LOMBARDY.
The association principle, of which this codification was the out-
come in Lombardy in the early part of the present century, is of
quite ancient origin, but its full development in the form we now
find it was due to the organizing genius of Napoleon, under whose
dictation the original text of the Lombardian law was promulgated.
It was a general law governing the organization of land owners, for
purposes of drainage, reclamation, or irrigation. And its application,
as will be seen, was committed largely to the government adminis-
trative authorities.
18 "
•J7-4 [TALIAN IKIIFGATIOX LK<. FM.ATION.
( ii m )•/// _/>///• <>j Association —
I — Organization of A--nciation>.
"1. All proprietors interested in special hydraulic works shall be
formed into such number of associations as may best suit their com-
mon interests and the territorial divisions of the kingdom.
" '1. All existing associations shall be preserved, with such modifi-
cations or additions as may appear desirable.
"3. The list of associations shall be definitely published during
the course of the following year.
"4. The associations are subjected to the control of the prefecture,
and shall exercise their function-; according to such rules and regula-
tions as may be prescribed by the superior authorities.
"5. The properties benefiting by one drainage or irrigating canal
constitute a district.
"6, All the proprietors of estate's situated within a district, consti-
tute an association.
"7. If the extent, and circumstances of a canal should so require.
it may be divided into several sections: each section may have its own
district, and each district its o\vn association.
"8. Each association shall be represented by a delegation.
"9. The number of delegates shall be determined by the direction-
general, in proportion to the wants of the district.
"10. The proprietors in each district shall elect the members of the
delegation by ballot. To this end the prefecture shall convoke the
proprietors at a specified time and place. The assembly shall be pre-
sided over by the ) uvfect . I he vice-prefect , or one of their deputies.
If the number present shall not equal a third of the total number of
the proprietors, those actually present shall select the delegates from
three Lists composed of the larger proprietors.
"11. One delegate shall be removed from the delegation biennially.
The retiring delegate shall be selected by lot from among those first
elected; afterwaras the senior member shall retire. The retiring del-
egate may be reflected indefinitely.
"12. The delegation has a president, whose tenure of ollice lasts for
one year. All the delegates succeed to the presidency in due order.
Among those first elected, the majority of votes in the election shall
regulate the order of succession. Subsequently, the rule of scniority
shall be observed.
"13. The delegation shall determine the days of its ordinary meet-
ings. The prefect, the vice-prefect, and the president can, on neces-
sary occasions, summon extraordinary meetings. The president shall
cause the decisions of the delegation to be executed in all cases where
no special member has been nominated for this purpose.
"14. The ordinary duties of the delegation are to superintend the
canals with their outlets and banks, as also the works of such other
canals as may traverse or surround their district; to maintain all
these in repair, and to collect the funds necessary for these objects.
"15. The delegation shall decide on all matters within its powers
by simple majority of votes.
"16. \Vhen new projects interesting to the entire district come
under discussion — such as the construction of new canals, the enlarg-
ing or prolonging of old ones, the formation of outlets or tunnels
under rivers, or similar works involving extraordinary outlay — then
IRRIGATION ASSOCIATIONS IX LOMBARDY. 275
the whole of the proprietors of the district shall be convoked, and
shall proceed to the election of as many extraordinary as there are
ordinary delegates.
"17. The union of the additional with the regular delegates forms
an extraordinary delegation, which shall decide on the proposed
works, and the means of executing them.
"18. The result of the deliberations of the extraordinary delegation
shall be submitted for approval to the direction-general. On the
works and means of execution receiving the approval of the superior
authorities, their completion is intrusted to the ordinary delegation.
"19. Each delegation shall have an accountant and a cashier.
"20. In such districts as have relations with foreign powers, the
conventions and customs in present force shall continue.
" 21. In cases of new canals, or improvements of land by drainage
or warping, trie districts and associations shall be formed in accord-
ance with the foregoing rules.
II. — Superintendence of Works.
"23. There shall be nominated for the superintendence of the
canals, outlets, and embankments, belonging to a district, such num-
ber of guards as the delegation may consider necessary.
"24. The delegation shall prescribe police rules for the regular
protection of these works.
"25. The ordinary engineer shall vdsit triennially, and oftener if
requisite, all the canals in his department. He shall examine the
interior condition of all the fixed works; note their wants, defects, or
abuses; propose to the delegation the appropriate repairs; and shall
inform the engineer-in-chief of the whole, who -will then report to
the direction-general. Should the delegation not be prepared to exe-
cute the works suggested, the engineer-in-ordinary will report accord-
ingly to the engineer-in-chief, who will then submit the question to
the direction, with his observations and opinion upon it, for the decis-
ion of the superior authorities. During such visits the condition of
new land improvements should be especially noted.
" 20. In times of floods, or inroads of waters, the extraordinary
guard reserved for such occasions shall be bound, in operating on any
works belonging to any particular district, to act in accordance with
the wants and usual customs of the localities.
III. — Works on Canals of Drainage.
" 27. With the view of showing clearly the interior condition of
the principal canals, fixed marks shall be established at every four-
teen hundred feet along their banks, on which shall be shown the
depth that each section of the channels ought to have. This depth
shall be shown in local measures, with the equivalent Italian meas-
ures, on each of the marks above referred to.
" 28. Each delegation shall fix a certain minimum depth for each
canal within its district; and when silting up above this plane takes
place, recourse should immediately be had to excavation. The depth
in question should be approved of by the engineer-in-chief.
" 29. The clearances of the canals should be effected twice a year,
at least.
" 30. Should it happen that, by any river breaking its embankments,
276 ITALIAN IRRIGATION LEGISLATION.
portions of canals are blocked up, the delegation should instantly
reestablish the same.
IV. — Distribution and Collection of Funds.
" 31. A preparatory estimate of the expense required for the public
and communal canals included within a district shall be made by an
engineer or other qualified party. The same course shall be followed
in all cases of extraordinary works.
"32. The delegation shall prepare annually an assessment list, the
basis of which shall be the amount of annual public burdens on each
property, and the estimates of the probable expense required for the
works, as given by the engineer.
" 33. This assessment list shall be submitted for the approval of the
prefect, who shall forward the same for the consideration of the mag-
istracy of waters. On receiving the sanction of the preceding parties,
the assessment shall be enforced according to existing agreements and
customs.
"34. Where no special agreements or common customs exist, the
proprietors subject to the assessment shall be arranged in different
classes, according to the amount of benefit they derive respectively
from the works.
" An engineer-in-chief, selected by the president of the delegation,
shall propose the classification of the proprietors and the different pro-
portions in which the separate classes shall contribute to the expenses.
"This proposal shall be made public, so that the proprietors may
present any objections that they may have to it, before the provincial
delegation within a term to be fixed by this body. The provincial
delegation, with the concurrence of the provincial assembly shall
report on the case to the government. On receipt of the approval or
alterations of the superior authorities, the quota fixed for each class
of proprietors shall be distributed among the individuals composing
this class, in proportion to the revenue survey valuations of their
respective properties.
"35. In collecting this assessment the cashier shall exercise the
same powers as are prescribed by the laws for the collection of the
direct taxes.
" 36. The fines imposed on parties breaking the existing regula-
tions belong to the association, and shall be deposited in the treasury
of the same. Whatever profits may in any way accrue shall be simi-
larly deposited in the treasury, at the disposal of the delegation.
"37. The cashier shall make payments on orders signed by the
president, one delegate, and the accountant. He ought to be required
to furnish a sufficient amount of security. He is appointed by the
presiding body, on its own responsibility. The entire amount of each
rate imposed shall be placed to his debit five days after it has become
due, whether it has then been received by him or not.
"38. At the end of each year the superintending body shall present
to the provincial delegation the accounts of the expenditures, with a
statement of the debits and credits of the treasury; and when these
have been approved by a vote of the provincial assembly, they shall
be published, and a copy forwarded to the government.
" 39. In case of several channels, which cannot conveniently be
included within one district, having a common escape-canal or other
works, the expense required for the protection and maintenance of
IRRIGATION ASSOCIATIONS IN LOMBARDY. 277
the said works shall be divided among the districts using them, in
proportion to their respective interests in them, excepting always any
agreements in force to a different effect.
"40. If the defense of an embankment concerns several districts,
the expense of repairing it shall be divided among them according
to their respective interests, saving agreements in force to the con-
trary.
V. — General Provisions.
"41. Associations of proprietors interested in drainage, land im-
provement, or irrigation, are subject to the inspection of the provin-
cial delegations, and are placed under the guardianship of the political
administrative authority. They exercise their duties according to
the rules and regulations prescribed by the superior authority.
"42. All works appertaining to associations shall be made by regu-
lar contracts. To proceed otherwise, and to execute the works by
daily labor, requires an express order from the government, who will
decide on the case and the necessity. In contracting for the annual
repairs of the works the contracts shall be made for nine years. The
government may alter this arrangement under special circumstances.
"43. The channels shall be furnished, not only with the appliances
necessary for opening or closing them with facility, but also with sup-
plies of all the materials which may be required to strengthen and
protect them in time of floods. All arrangements that concern the
defense of embanked rivers are under charge of the engineer-in-
chief and his subalterns.
"44. Where the respective titles do not otherwise provide, the vol-
ume and the special regulations for each outlet from the rivers shall
be fixed in such manner as that no injury may result to the interests
of any of the proprietors belonging to the district. The same care
shall be observed in the use of turbid waters employed in operations
of improvement by deposits.
"45. Objections made by the proprietors within a district to the
proceedings of the presiding body shall be considered by the pro-
vincial delegation which, having verified the facts and submitted
them to the provincial congregation, shall decide each case according
to its merits. If the objections should involve points of great impor-
tance the provincial delegation shall submit them to the government,
and shall await its instructions before coming to any decision.
"46. Each delegation shall present to the provincial delegation a
project of regulations for the careful protection of all the matters
committed to its charge. These regulations shall not have force until
approved of by the protecting authority." — [Smith, Vol. II, pp. 170-178.
SECTION II.
ORGANIZATION AND MANAGEMENT OF IRRIGATION ASSOCIATIONS.
THK (JKNKKAL ASSOCIATION' OF IRIUUATIOX A\'KST OF THE SKS1A PIKDMONT.
To illustrate the application of the formation of irrigation soci-
eties in Piedmont, I bring forward the special case of the organiza-
278 ITALIAN IRRIGATION LEGISLATION.
tioii and operation of the General Association of Irrigation west of
the Sesia.
As already written, all of the canals, of which there are quite a
large number, in a certain great district east of the Po and between
the Dora Mai tea and Sesia 'rivers in Piedmont, were the property of
the government. These were managed and maintained, as explained
in the preceding chapter, under the direction of a bureau of civil engi-
neering, attached to the ministry of finance; but the waters were
farmed out on leases to contractors who undertook to distribute them
to the irrigators, collect the rents, and pay the government specified
sums annually.
The arrangement is thus spoken of:
"In the hands of the farmer of the canal revenues, are vested the
powers of entering into the contracts for water with all cultivate
of fixing in communication with them the annual rent to be paid,
and the manner in which the supply of water is to be used and meas-
ured. In a word, the whole interior economy, so far as the granting
of water is concerned, is under the control of this party, who lias his
own private agents spread over the country to -watch his interests and
carry into execution his orders, all disputes being submitted to tin-
decision of the ordinary tribunals." — [Smith, Vol. I, pp. 11D-P2-.
In view of this state of things, and remembering the matter upon
this special point — the effect of irrigation on land holdings— tran-
scribed from the writings of Marsh, in the first section of this chapter,
we see the incentive to the organi/ation of the irrigators of this
region, and are prepared to appreciate the importance of their associ-
ation, which was formed for the purpose of doing away with the
evils of the system of water-leasing by government to contracting
"middle-men," and re-leasing or selling to the irrigators.
The general idea was the formation of a society composed of all
the irrigators, themselves to lease the waters in bulk from the govern-
ment canals, and distribute them to themselves as irrigators.
The society was founded by government under the act of July •'>,
1853, and owes its origin to count Cavour, at the time minister of
finance of the Sardinian government, and a man to whom, on account
of his liberal and advanced ideas and patriotic actions, northern
Italy looks as a benefactor.
The organi/ation had for its object at starting, "to lease, administer,
and employ in general, according to an economical and natural sys-
tem of irrigated cultivation, the waters of the crown canals derived
from the Dora Baltea (river), in terms of the agreement made
with the state finance bureau, for the irrigation of the respective
properties of the shareholders, with the power of extending succes-
IRRIGATION ASSOCIATIONS IN PIEDMONT. 279
sively the benefits of the association even to the mutual assurance
against losses by hail, fire, and such like, and to other social objects
of mutual profit."
By the agreement referred to, the government leased to the asso-
ciation all of the waters, in volume about 1,750 cubic feet per -second
at maximum flow, of the crown canals in the region spoken of,
which is about twenty miles square, for a period of thirty years;
making, however, certain reservations in favor of owners of old rights
long ago acquired in perpetuity, which reservations amounted to an
aggregate volume of 793 cubic feet per second. The lease took effect
on January 1, 1854, expired the first of the present year, and has been
renewed on substantially .the same terms.
I have made and hereinafter present an analysis of this agreement,
but now ask attention to an account of the organization and internal
working of the society.
The statutes and regulations of the society comprise three hun-
dred and seventy-nine articles, covering seventy-six pages octavo.
The following is an abstract of the principal points contained in
these:
ORGANIZATION AND MANAGKMKNT OF THE ASSOCIATION.
" In each commune, or parish, irrigated by these canals, there is a
society termed a consorzio qgrario, composed of all the proprietors
within the parish who take water for their lands; or in certain cases
a consorzio may be composed of proprietors of adjoining small
parishes. Each consorzio elects by universal suffrage one or two
deputies, according as it uses a discharge of less or more than 30
modules (61.4 cubic feet per second) on its irrigation. These deputies
form an assembly for the general administration of affairs. They
must be themselves members of the society, over twenty-five years of
age, " sufficiently acquainted with agriculture," and men of good
character. They receive no salary as deputies, nor are they allowed
to hold any paid office under the society. They are elected for three
years, and may be reflected. They meet regularly twice a year, on
the fifteenth of March and fifteenth of November, and half their
number form a quorum. They elect from among themselves a presi-
dent and vice-president, whose functions last for three years, and each
year they choose also an honorary secretary and two assistants. They
pass the accounts of the year, settle how much is to be paid by each
consorzio, what salaries their employes are to have, listen to sugges-
tions for the benefit of the society, and in short, generally direct and
control the whole of its business. The rules passed by the assembly
are binding on all the members of the society. To help them in
forming decisions they have a legal and an engineering adviser.
THK DIRKCTIOX-GKNERAL.
"From among themselves the assembly elect three committees:
the direction-general, the committee of surveillance, and the council
of arbitration.
280 ITALIAN IRRIGATION LEGISLATION.
"The first is the committee of management of the affairs of the
society. It consists of a director-general, three members, a secretary,
and an assistant secretary. If the director-general likes he may
appoint a colleague, with the approval of the assembly, to take his
place in case of illness or absence. The director-general may call on
the assembly to dismiss any of the members of his committee, or he
himself may suspend them for not doing tkeir duty. He has in every
way to watch over the interests of the society, to see to the conduct
of its servants, and to give them rules for their guidance, to direct
any works, to disburse expenses, to arrange with the government (or
with the canal company) for the amount of water required at each
point, to see generally to the distribution of the water over the irri-
gated district, to carry on all communications with the government,
and in short to be general manager. The director-general receives
an allowance of $1,800 a year, from which he is expected to pay a
number of small charges; and each member of his committee
receives a certain salary. This committee has its headquarters at
Vercelli, and renders an account of its proceedings at each meeting
of the general assembly.
"The committee of surveillance is 'the eye of the assembly over
the direction-general,' and has to see that it carries out faithfully its
duties towards the society. It consists of three members, of whom the
oldest presides. They meet once a week, and each time receive a
ticket which entitles them to a small allowance as fixed at each gen-
eral assembly; in 1866 the whole amount being only $170. Should
they think necessary, they may call an extraordinary meeting, and
make a report of their proceedings
TIIK COI NCII. OK MtlllTltATION.
"The council of arbitration has for its object: 'first, to settle all
disputes regarding affairs of the society which may arise between the
members and the society, or between the society and its servants:
second, to decide cases of breaches of the rules and discipline of the
society; third, to assist the society in actions before the courts; fourth,
to give their advice on whatever may be referred to them by the
director-general; fifth, to fix and settle in case of dispute the compen-
sation for the passage, outlet, or any other obligation or damage occa-
sioned by the flowing, distribution, employment, recovery in < Ira ins.
and escape of the waters of the society, with its members or among
the consorzios, or members with each other.' This council is composed
of three members of the assembly, wrho must be resident in Yeivell i.
and are elected annually. They receive no regular pay, but get cer-
tificates of attendance at meetings, like the committee of surveillance.
and these certificates entitle them to a small remuneration, of which
the whole amount in 1866 was $243."
Their decisions are settled by the opinion of the majority. Then-
is always the power of appeal from them to the ordinary courts of
justice; and to admit of this appeal, the execution of their sentences
is deferred for fifteen days after being promulgated, unless in case-
where, for the sake of the crops, it must be carried out at once. After
fifteen days, if no appeal has been made, the decisions of the council
are looked on as final. When necessary the council summon a law-
IRRIGATION ASSOCIATIONS IN PIEDMONT. 281
yer or an engineer to their assistance. All charges of this council are
paid by whoever loses the case. The director-general is not allowed
to carry on any lawsuit on the part of the society without the previous
sanction of the council of arbitration.
FINANCE AND SUPER1NTENDKNCK.
"The money transactions of the society are under a cashier, who
has to give a security for $4,000, and who is responsible for all con-
nected with the cash. His chest has three keys, of which he keeps
one, the director-general another, and the third is held by the largest
shareholder of the society who is a member of the general assembly
and happens to live in Vercelli. Money is issued on the checks of
the director-general, and once a month he and the member who keeps
the third key of the cash-box count the cash, and audit the cashier's
books.
" To effect the distribution of the water, the area irrigated is divided
into a certain number of districts (at first only four but increased
since), in each of which there is an overseer in charge of the irriga-
tion, termed the delegate, who receives his orders from the director-
general, and several guards or water-bailiffs, termed acquaiuoli.
These officers patrol the water-courses; see that the modules are dis-
charging their proper amount; that the water that passes off the
fields is not running to waste, but is caught in the catch-water drains,
from which at a lower level it can be again utilized (a point attended
to with admirable care in the Piedmontese irrigation), and do all the
other ordinary duties connected with their position. Neglect of duty
or disobedience of orders subjects them to fines, reduction of salary,
or dismissal." — [Moncrieff, pp. 230-234.
THE GOVERNMENT AND THE ASSOCIATION.
For the purpose of bringing out as clearly as possible the relations
existing between the government and this great irrigation association,
I have made an analysis of the agreement between them, and, doing
away with superfluous verbiage, have brought the essential points
together under the headings which have seemed adapted to the matter
and calculated to convey the best idea of its scope and bearing, as
follows:
An Analysis of the Lease of Waters to the "General Association of Irrigation West of the Sesia,"
Piedmont, 1854.
WATER RIGHTS AND PRIVILEGES.
The government granted to the association, for a period of thirty
years, the exclusive right to the use and control of the waters of the
three large state canals, Ivrea, Cigliano, and Rotto, derived from the
Dora Baltea river, to the extent of such volume as might be necessary
to properly irrigate the districts of Vercelli, Casale, and Biella,
wherein were situated the lands owned by the members of the asso-
ciation.
282 ITALIAN IRRIGATION LEGISLATION.
At all limes the volume of water to be delivered \vas to be limited
by the total capacity of the canals, which was 870 modules, or 1,750
cubic feet per second, and by the previous engagements of the Slate
to deliver, of this amount, 387 modules to holders of old grants-in-
perpetuity of water-rights.
The supply of water furnished was in be negotiated for each irriga-
tion season in advance — the summer season being held to commence
with the spring equinox and end with the autumn equinox, and the
winter season to embrace the balance of the year — and, with the
exceptions noted, the supply during each such irrigation season was
to be delivered by the three canals in proportion to their respective
capacities, and maintained at a steady flow equivalent to the amount
engaged.
During the Bummer — the season of abundant supply and the season
of greatest demand — the volume delivered was to be governed by the
demand of the association made before the thirty-first of January
preceding, and by the limitations already spoken of.
The government reserved the right of closing the canals for acces-
sary repairs according to custom during the spring and Ix-foio the
tirst of April, at which date, unless some extraordinary obstacle or
reason prevented, the waters were to be let in.
With this special exception, and the general exceptions which fol-
low, during the term embraced by the winter season water was to be
kept flowing in the Ivrea canal to a depth of 4.C> feet, in the Cigliano
to a depth of 4.3 feet, and in the Rotto to a depth of ±r> feet, accord-
ing to the official gauges in the canals respectively; and the amount
thus conducted was to include the winter supply due the old grantees
of water-rights as well as that at the disposal of the association.
Should it become necessary at any time during the year to execute
extraordinary repairs to either of the canals, or the headworks in the
river supplying them, the association was obliged to suffer the loss of
water for the time, without claim to rebate on its payment for the
season.
Should the supply of water in the river at any time fall short of
the amount sufficient to supply the flow demanded, the deficiency
was to be divided between the canals in proportion to their summer
volumes of flow, and be borne by the association without recourse
for loss.
The state is restrained from issuing privileges to any other person
or association, for the diversion of water from the Dora Baltea or Po.
for irrigation in either of the three districts included within the area
to be served by this association.
IRRIGATION ASSOCIATIONS IN PIEDMONT. 283
The state reserves, however, the right of using the three principal
canals, or either of them or the secondary branches, for the irriga-
tion of other districts, provided this can be done without diminishing
the supply required by the association.
The state also reserves the right of collecting the surplus tlramage
waters from irrigation below the lands of the members of the asso-
ciation, and of re-disposing of them for irrigation in the lower dis-
trict of the Lomellina.
The water is leased to the association for the use of its members,
and not for sale to persons not members, and except in cases of
urgent demand when a casual watering may be given the lands of
some outsider, the association is prohibited from taking more water
than its members require, and from delivering it to others than
members for use.
In the event of the government authorizing or causing a canal to
be built from the river Po, so as to command the districts to which
the agreement related, the association wTas to have the privilege of
taking the waters of the Po, in place of those of the Dora Baltea, at
an advanced rate of payment, as elsewhere spoken of.*
MAXA<;KMK\T OK THK WATERS.
The management of the diversion of the waters from the rivers,
and of the upper portions of the canals down to the point of gauging
in each, was to be wholly in charge of the government agents; the
gauging was to be in charge of the government engineers, and thence-
forward in the canals the association was to take charge of the flow
of the waters and their distribution, except as might be necessary in
effecting repairs to works, as will hereafter be seen.
The unit of measurement in the distribution as well as the original
delivery of the waters, was to be the module defined and legalized by
article 643 of the (Sardinian) civil code, and equivalent to 2.047 cubic
feet per second.
The association was to apportion and deliver to the holders of the
old water-rights the quantities of water due each, to the aggregate
volume of 387 modules during summer, as they had been delivered
in the past, and according to a schedule annexed to the agreement.
Should the association fail to deliver these waters, the state reserved
the right to take charge of the works, and deliver them.
MANA<;KMKNT AND MAINTKNANCK OK WORKS.
The state, at its own expense, was to preserve and protect the three
principal canals and all structures immediately connected with them.
Such a canal was afterwards built, as will be shown in the next chapter.
284 ITALIAN IRRIGATION LEGISLATION.
The works of ordinary maintenance and repairs, on all irrigation
works, was to be performed by the agents and engineers of the state,
yearly, at the expense of the association.
The state assumed the responsibility of managing the main works
only to an extent sufficient to deliver the waters at the points of main
distribution.
Beyond that, the association was to conduct the operations and bear
the expense of every kind necessary for delivering, distributing, and
employing the waters leased, and also the expense of maintaining
proper drainage facilities to save the surplus waters after use.
WATKR-POWBB AM) MIl.l.s.
The state also accorded the association the use of the royal estab-
lishment and mills of Salasco, to be used by it in the administration
of the works, and in cleaning and handling the grain, rice, and other
produce paid by the irrigators for water rents.
The society was to keep the establishment in repair, and be respon-
sible for loss by fire or otherwise.
The water-power of the canals, beyond that necessary for the above
named establishment, and beyond that necessary for the existing or
new mills of the members of the association, devoted for their own
private use, was reserved to the state.
[The introduction of new machinery into the Salasco establish-
ment by the state, and its use by the association, was also the subject
of articles of agreement, but these it is unnecessary to summarize
here.]
KKVKM'K AM) RENTS.
The annual dues from the holders of old water-rights were to remain
as before, payable to the state.
All other income from the use of the waters delivered to the associa-
tion, except that which might be derived by the state from the use
or disposal of water power, as elsewhere explained, was to be to the
benefit of the association.
The association was accorded full power to fix its rates for water to
be delivered to its members as consumers.
In return for the use of the waters, the association was to pay the
state for the water used by it during the summer season, at the rate
of about $80 per cubic foot per second. Payment to be made before
the thirty-first of December of each year, and to be collected the saun-
as taxes.
IRRIGATION ASSOCIATIONS IN PIEDMONT. 285
GENERAL CONDITIONS.
All the waters, rights, etc., were turned over to the society as they
existed, the society assuming all responsibility in their management,
except as stipulated to the contrary in the agreement; and onlyjnjthe
case of their proving profitless by reason of absolute failure of water,
or a raging plague, or a war being waged in the locality, could the
association have recourse against the state for a remission of its dues.
The state by its engineers was to prepare and cause to be published
at the joint cost of itself and the province of Vercelli, a hydrographic
map in detail of the whole region covered by the agreement.
The state reserved the power to appoint a special commissioner to
represent it in the councils of the association, and to care for its inter-
ests generally under the agreement. This commissioner was not to
have any vote in the assembly or syndicate, but was simply to have a
voice to speak for the state when necessary.
The association was required to deposit a money bond equivalent
to about $60,000, to be held by the state as a guarantee of the good
faith of the association and the payment of its dues.
But for the first year the association was to be permitted to use this
sum for working expenses if necessary; or in after years in case of
great necessity, of which the state administration was to be the judge,
and upon an agreement made at the time to return it within a lim-
ited period.
[There were other provisions about the extension of the works by
the state, and the use of such new works by the association, which it
is unnecessary to summarize here.]
SECTION III.
ORGANIZATION OF IRRIGATION ASSOCIATIONS.
THK PRESENT LAW KOR ALL ITALY.
The Sardinian code did not contain any provision for the forma-
tion and management of irrigation associations.. A law similar to
that of the former kingdom of Italy, promulgated at the order of
Napoleon, and hereinbefore transcribed as the law of Lombardy,
made such provision in detail for Piedmont, and, as we have seen,
the great irrigation association of the country was recognized by a
special law sanctioning the lease of the waters of the crown canals to
be used under its management.
When, in 1865, the code for all Italy was formed, however, there
286 ITALIAN IRRIGATION LEGISLATION.
was incorporated into it a number of articles whicli declared tbc lib-
erty and power of forming associations specially for such purposes
as irrigation and drainage, and formulated the principles to be ob-
served in the management of their a Hairs. (See, Appendix II.)
These are to be found in articles 057 to 660, inclusive, under the
title, "In what way servitudes are to be exercised." and in articles 07:i
to 684, inclusive, under the title, "Of community property." There
results from these rulings the following application for our case in
hand:
\ Ol,r.\ T AKY ASSOCIATION" OK I.ANI>HOLI>KKS.
Where in a natural irrigation, reclamation, or drainage district, a
community of interest exists such as to clearly render <-o(>pcration
amongst the landholders advisable, in order to effect the desired
purpose of irrigation, reclamation, or drainage, as the ease may he.
these owners may form an association to jointly act in the matter.
For such free association it is only necessary that the assent of the
members be had in writing, and that the by-laws under which they
propose to operate be similarly recorded. (Art. o.">7.)
Such organizations are governed by the action of a majority of their
members, who represent at the same time a majority interest in the
common property and benefits of the association. Thus, to constitute
a majority there must be, not only more than half of the parties at
interest, but these parties must represent more than half of the total
interest merged in the association itself. (Arts. o.">s and 07s.)
The resolutions and determinations of such a majority are binding
upon a dissenting minority in the association. Assessments may be
levied, which become a lien on all the property represented in the
association and collectible the same as taxes. (Art. 07S.)
If at any time a majority, as already defined, cannot be had for or
against a proposed measure, or if the determination of a majority
may threaten detriment to the interests at stake, the judicial authority
of the province may look into the matter, and. if necessary, appoint
some one to administer the affairs of the association, i Art. 07s. )
No one can be compelled to remain a member of such an associa-
tion; but lands which have been entered as represented cannot be
withdrawn during the period for which they are entered, up to a
limit of ten years. Thus, any person joining such an association is
admitted as the representative of his certain specified property in the
district, and thereupon is entitled to representation as an individual,
and also as the owner of a certain interest, proportioned to the whole
as may have been agreed on. He may thereafter himself withdraw:
he may sell, lease, or hypothecate his interest to others, who may
IRRIGATION ASSOCIATIONS — ITALIAN LAW. 287
represent it in the association, or he may leave it without representa-
tion; but the property itself is held to the agreement for at least ten
years, unless the judicial authority, 011 due hearing, may be shown
the justice of releasing it. (Arts. 681 and 679.)
Furthermore, no individual owning a part of a property—iltus
merged in common interest can be allowed to withdraw, even by the
courts, if the part so withdrawn is such as to defeat the purpose of
the association. (Art. 683.)
Each individual member of such an association may proceed
against each other individual member, and compel him to contribute
his share towards the proper maintenance of their common interest,
unless the directory of the association releases those proceeded against,
or they release themselves by an abandonment of their interest. (Art.
()"(>.) But no individual can make any change in the property owned
in common, no matter how much to the advantage of all it may
appear to be, unless the others consent. (Art. 677.) The proper
preservation of a common interest does not necessarily imply a change,
however; so that each individual can be held to sustain the acts of
every other individual associate, wherein it can be shown that such
acts are necessary for the preservation of their joint interest.
Such an association can only be dissolved at the end of the time
for which it was formed, or by resolution of a majority exceeding
three fourths, or when a dissolution may be effected without serious
detriment to the interests involved.
In the first case, when such associations are formed for definite
periods of time, the fact of formation binds all the property for that
time; and, hence, until its expiration, except in the cases which
follow, the association cannot be dissolved.
In the second case, the majority required is not only more than
three fourths the individuals of the association, but, also, a represen-
tation of more than three fourths the interest involved.
In the third case, the question — as to serious detriment to interests
involved — is always to be decided by the courts; so that, an associa-
tion being formed, to dissolve it before the time an application has to
be made by parties interested, and the courts have to be shown that
no interests are to suffer by the dissolution, before it is authorized.
(Art. 660.)
eo.Mi't:r,souY FORMATION' OF ASSOCIATIONS.
Such is the general idea of a free association, where all the parties
voluntarily join in the movement.
But the law does not stop here: We find in article 659 that the
"judicial authority" — that is, the judges of the superior court of the
288 ITALIAN IRRIGATION LEGISLATION.
province (an appeal being open to a higher tribunal) — "when it is a
case of the exercise, the preservation, or the defense of a common
right, of which it is impossible to make a division without serious
injury," may order the formation of an association of all owners of
lands in any such district, when a majority of them shall have de-
manded such organization, and the others shall not, on being heard,
have been able to show good reason why the action should not be
taken.
Now, "a case of the exercise, the preservation, or the defense of a
common right, of which it is impossible to make a division without
serious injury," may be presented in an irrigation district, and it is
almost always presented in a drainage or reclamation district. These
points are judged of by the courts, and, as I have in several places
heretofore explained, the courts are guided in their decisions on such
matters by the opinions of engineering experts, limited in number
under the orders of the courts, nominated by agreement, if possible,
amongst the parties interested, or, in default of such agreement, then
appointed by the court itself.
Here, then, we have a result: Where a community of iuterest
exists in a district of country such that in order to manage its irriga-
tion or effect its reclamation or protection from floods, it is necessary,
in justice to each owner and each parcel of property, that all com-
bine in an association for the common protection or the exercise of a
common right, if a majority of the owners of the property, represent-
ing a major part of the property owned, make application to t he-
proper tribunal to have an order issued for the purpose, and, after a
due hearing of all parties, it appears to the court that the interests
should be combined, an order will be issued compelling such combi-
nation. The minority can be forced into the association; and, being
in, as we have seen, the minority are subject to the rulings of the
majority; but in the cases where associations are thus formed under
orders of a court, the resolutions of the majority are subject to revision
by the court, (Art. 659.)
Here we have a result parallel to that which we have before noted
as an established principle in France. The principle of compulsory
action where an interdependence of interest clearly demands it in
order that a common good may be subserved.
As has been said, reclamation districts almost always present such
cases. The French apply the rule only in cases where " the water i> a n
enemy." The Italian law is somewhat broader in its wording, so that a
proposed irrigation district, even, might present the conditions which
IRRIGATION ASSOCIATIONS — ITALIAN LAW. 289
would warrant the compulsory association of the owners of its lands,
on the petition of a proper majority of them.
AUTHORITIES FOR CHAPTER XIV.
In the preparation of this chapter I have consulted and compared the following named
authorities :
Moncrieff. — [Work cited as an authority for Chapter VII.] See, Chap. XV, and appendix D.
Smith.— [Work cited as an authority for Chapter IX.] See. Vol. II, P. 4, Ch. 1, Sec. 5; Ch.
II, Sec. 5, and elsewhere.
Marsh. — "The evils, remedies and compensations of irrigation;" by Geo. P. Marsh (U. S.
Minister to Italy). See, Report, Department of Agriculture, 1874, pp. 362-381.
Italian Code. — [Work cited as an authority for Chapter X.] See, Articles 657 to 660 and
673 to 684.
19 2l
CHAPTER XV— ITALY'7';
IRRIGATION ENTERPRISE.
SKCTION I. — forms of Enterprise — Examples of Canal Construction.
The Association Principle not Applied.
Ancient and Modern Enterprises.
The Great Modern Work— Cavour Canal.
Organization — Management — Failure of the Company.
SECTION II. — Confessions to Capitalized Companies — Cavour CanaL
The Cavour Canal Concession.
Obligations of the Company.
Condition of the Concession.
Privileges to the Company.
Benefits to the Company.
SECTION III. — Governmental Policy and Encouragement.
General Policy as to Public Works.
Prize Competition in Irrigation Practice.
Hydrographic Survey of Italy.
SECTION I.
FORMS AND EXAMPLES OF CANAL ENTERPRISE.
THK ASSOCIATION 1' H I NC I i' I. K NOT A 1'1'M ED. ':|:'
Although, as I have endeavored to show in the chapter preceding,
the principle of association has been very fully developed and
applied in northern Italy, in the matter of organization for the use
of water in irrigation; it has not been thus availed of for the order-
ing of enterprise in canal works. The property owners, both poor
and rich — the peasantry and gentry, and even the nobility — have par-
ticipated in the formation, and now maintain the organization of
associations, almost all over irrigated Lorn bard y and Piedmont, hav-
ing for their object the leasing in bulk, and distribution among their
members, the waters of the canals. But the canals themselves are
almost without exception the property of the State, of municipali-
ties, of ecclesiastical bodies, of corporations, of (in each instance) a
few rich and powerful noble families or wealthy landholders.
* See, De Buffon, generally; acknowledge, also, letters from lion. Geo. P. Marsh.
FORMS OP CANAL ENTERPRISE. 291
The association principle, of which I speak, in northern Italy, was
born of and derived its strength from the necessities of the people
for protection: on the one hand, protection from the floods of water
which, spreading out from the great rivers, have so freo^ently
devasted the lower parts of the fair valley of the Po; and on the
other hand, protection from water monopoly which long ago became
implanted on the higher lands, and spread its blighting influence
even more widely than did the floods theirs.
It was early realized that association, unification of effort— if not
voluntary, then by compulsion — was absolutely necessary in the low
lying districts, in order to compass a respectably efficient resistance to
the spreading of the army of flood waters which the Alps and the
Apennines periodically sent forward towards the sea. The march of
these floods was just as much an invasion of the country as was the
advance through the fields of any of the armed and ruthless hordes
of men, which northern and middle Europe have so often in historic
times sent trooping over the plains of the basin of the Po.
As organization was necessary to resist the human flood (but, alas,
Italy, because disorganized, has not always effectively interposed such
resistance), so organization on a broad scale was necessary to control
the march of waters, in this same country. That the object of this
organization has not always been accomplished is a matter which need
not concern us here. The facts are recognized, that many thousands
of acres of a most productive country have been cultivated for centu-
ries, under the protection of works controlled and maintained by dis-
trict organizations of the people, under government supervision, that
the country could not have been inhabited otherwise than by a suc-
cessful defensive war against the invading armies of waters, and that
experience shows the general scheme of organization, and operation,
so far as the political problem goes, to be the best ever adapted to
measurably free people; and we can well understand its increased
degree of adaptability under social and political conditions grounded
on an advanced position of freedom and intelligence of the masses.
Commencing, probably, in this necessity for protection against
floods, associations of landholders in districts were formed for pro-
tection against the exactions of the owners of the waters and rights
to use waters in irrigation on the higher lands; and the very fact of
the application of the principle of this form of organization being
made all over the country for the purpose of unifying in districts the
interests of the many irrigators, and thus treating for and managing
the waters, is sufficient proof of the antecedent fact of the necessity
for such action — the ownership of the canals and waters by those who
r\ i rl -n/~»f f V» £M-»-> ool TrCkO VICO m* T\O POrkTT O 1 1 \T f\ 1 t'fir^i- "fl^nTr" o i \i il i nn -fi /-vi-i
292 ITALIAN IRRIGATION LEGISLATION.
As a natural consequence of this turn in events the proprietors . if
the canals have themselves organized in the several districts, and
great clashings and conflicts of interest have resulted; but when
opposing interests are thus locally organized they are easier to deal
with by third parties, and so the government is the mediator in this
instance, and through these organizations, formed under general laws,
it exercises that supervision which now keeps comparative quietude
and admits of a corresponding degree of prosperity.
CANAL WORKS AM) KNTKKIM: i
With very few important exceptions, the main canal works of north-
ern Italy were built so long ago and under political and social condi-
tions so different from those which are present in our country, and
even in Italy at this day, that we find but little of a positive nature,
in the forms of enterprise under which they were carried out, by the
study of which we may profit. There was, at the dates of early works,
no legislation with respect to irrigation enterprise, and no administra-
tion worthy of the name.
The following notes will convey an idea of the origin of the givat
works of the country:
Lombardy. — Eleventh century — Ancient works of the Romans in
and about Milan, restored and extended.
Twelfth century — Further extension of these works. The monks of
Chiaraville obtained rights to the waters of the Vettabbia, and util-
ized them. Construction of the great canal of the Ticino; of the
canal of Battaglia. and of Reno, and of many others. This was a
period of great activity in the construction of works.
Thirteenth century — The great canal — Naviglio Grande — even yet
the largest in Lombardy, was completed. The canal Muz/a and other
great works carried out.
Fourteenth century — The Naviglio Cavico, deriving its supply from
the Oglio, constructed. The great canal from Pavia to Milan built.
Fifteenth century — The canal Martizana commenced and finished
within a few years — an exceptional case. The canal Bregnardo also
promptly carried out in a reasonably short time.
Sixteenth century — The great lines of irrigation were extended,
and many minor and secondary works built. The canal of Paderno,
the only main work of importance, commenced; but it was not finished
until late in the eighteenth century.
Seventeenth century — Dominion of Spain over the country from
*See, De Buffon, Vol. I., Ch. I, and, also, pp. 123, 134, 153, 162, 180, 196, 227,- also. Smith,
Vol. I., pp. 100-102, and 196-202.
EXAMPLES OF CANAL ENTERPRISE. 293
the last century. Great activity in irrigation works of detail, and
systemization of practice; but no new large works.
Eighteenth century, and to the middle of the nineteenth — No new
large works of irrigation in Lombardy, except the new canal of Pa via,
executed in the time of the former kingdom of Italy, in the early
part of this century, by order of Napoleon.
Piedmont. — Fourteenth century — Most ancient existing canals built.
Early part of century: The Roggia or Gattinara canal built. The
canal Busca and Santirana, from the Sesia, and the canal Langosco,
from the Ticino, built in the latter part of the century.
Fifteenth century — The canals Rotto and Dorea, from the Dora
Baltea, built. Also, the canals Commune of Gattinara, Mora, and
Sforzesca, had their origin in this period.
Sixteenth century — The only important work due to this century,
in Piedmont, is the canal Coluso.
Seventeenth century — The canal Ivrea restored, after having been
destroyed.
Eighteenth centurj^ — The canal of Cigliano, with its branches, was
constructed.
Nineteenth century (early part) — The canal of Charles Albert con-
structed.
With one important exception, which is to be written of in the
next paragraphs, the canals above named constitute almost all of the
important works in the great irrigated region east of the Po, for
although there are very many secondary and branch canals, and an
immense number of distributaries, the main works are not numerous
but large. The topography of the country has not admitted of cheap
works, and the early policy of the government did not encourage
opposition.
THK GREAT MODKRN WORK CAVOUR CANAL.*
Remembering what has been said in the introduction to the ninth
chapter of this report, about the form and size of the valley of the
Po and the distribution of its water-ways, we are prepared to see at
once the bearing of the Cavour canal problem.
There had been a number of canals brought from the rivers which
enter the valley of the Po from the Alps and course across the great
plain of Piedmont to the main stream running easterly at its foot,
but previous to 1844 the idea of calling upon the Po itself to con-
tribute a portion of its waters to this field of irrigation industry, it
appears, had not been seriously entertained. The probable great cost
* See, Moncrieff, Ch. XIV.
294 ITALIAN IRRIGATION LEGISLATION.
of the work had deterred even an examination of the project, so it
was not fully realized until about the date mentioned, that.the scheme
was even feasable.
A canal on this route would have to cut across the natural drainage
lines and, also, other canals of the country, and these were so formidable
as obstacles to a great artificial water-way, that it probably appeared
to be an undertaking beyond reach. It was as though a canal as
large as the six largest in this state combined in one, was proposed to
be constructed from Red Bluff on the Sacramento river, around the
eastern margin of the Sacramento valley, crossing the Feather, Yuba,
and Bear rivers, and the intervening creeks magnified into torrents,
and also half a dozen or more other large canals and any number of
medium sized and small ones. This was about the aspect of the
Cavour canal project. The water-way was to give passage to 3,885
cubic feet of water per second, and diminishing in capacity at suc-
cessive main points of distribution, it was to extend from the To at
Chivasa, at the head of the main valley, as it were, around the north
side of the valley to the Ticino, one of the principal rivers entering
the plain from the north.
When in 1854 the project had been quite thoroughly examined and
estimated upon, it was the intention of the Sardinian government to
carry it out as a public work, seeing that a large part of the country
which it would command was already partly supplied by government
canals, yet the supply of water was short and a great demand existed
for an additional amount. But the Crimean war crippled the re-
sources of the government, so that when a company of English capi-
talists proposed to take the matter in hand, the government assented,
and, hence, resulted the concession to the Company General of Italian
Irrigation in 1862, of which an abstract will be given in the next sec-
tion of this chapter.
The principal object of the work was to supply water to the great
canals already existing, particularly at the season of low stage of the
rivers from which they drew their supply, at which season the Po had
a surplus of water to spare.
The originally estimated cost was $7,070,000. The contract for the
canal was let for $8,875,000. Contingent expenses, damages, and other
matters raised the total estimated cost to $10,660,000. The purchase
of the crown canals — a part of the agreement, as will hereafter be
seen — and expenses accruing before income was realized, brought the
total sum to be paid out by the company up to $16,600,000. The nom-
inal capital of the company was $16,000,000, but although the gov-
ernment guaranteed the interest at 6 per cent on that amount, from
THE CAVOUR CANAL ENTERPRISE. 295
the time the work was opened, the stock of the company never went
nearly to par, its actual resources never exceeded $12,200,000, so that
it failed, and the works were thrown back oh the hands of the gov-
ernment.
Nevertheless, and although the project had so sad an outcerm^for
the stockholders, the canal was built, and is a most noble work, and
the original transaction between the government and the company
affords an instructive example of government policy towards irriga-
tion enterprise.
SECTION II.
CONCESSIONS TO CAPITALIZED COMPANIES.
THE CAVOUR CANAL CONCESSION.*
The history of irrigation in Italy does not afford many examples of
concessions for purposes of irrigation in such form that they can be
studied in details from the standpoint of the political economist. The
general ideas of the policy of the Italian governments have been
already outlined in this report, but there is no such stock of practical
examples to be drawn from for illustration in detail, as we have found
in France. Nevertheless, there have been some concessions of late
date worthy of mention and analysis, but with the exception of that
to the Company General of Italian Irrigation, for the construction of
the Cavour canal, there is no data at hand in a form which enables me
to make use of it in the necessarily hurried preparation of this report.
This Cavour canal concession was embodied in an agreement
between the government ministers of finance and of agriculture, and
six individuals standing for the company, and in a law bearing date
of August 25, 1862, sanctioning this agreement.
I have made an analysis of these documents, and grouped their
principal points under headings as follows: (1) Obligations of the
company; (2) Conditions of the concession; (3) Privileges to the
company; (4) Benefits to the company; and in this form the matter
is now presented.
An Analysis of the Concession for the "Company General of Italian Irrigation" to Construct the
Cavour Canal— 1862.
(1) OBLIGATIONS OF THE COMPANY.
The grantees became obligated as follows:
(1) To form a company for the construction and working of a canal
by which should be diverted constantly from the river Po a quantity
* See, Moncrieff, Appendix C.
296 ITALIAN IRRIGATION LEGISLATION.
of water not less than 110 cubic metres (3,885.2 cubic feet) per second
(supposing such a discharge to exist in the river).
(2) To combine the waters of said river with those of the Dora
Baltea, for the irrigation of the Novarese, Lomellino, and Vercellese
districts, in accordance with the law of third July, 1853.
(3) To comply with the project of the government engineers in every
respect.
(4) To have the headquarters of the company at Turin.
(5) To organize within two months from the promulgation of the
law approving of the agreement.
(6) To submit the regulations of the company to the government
within a month from the promulgation of the law.
(7) To construct, entirely at its own expense, the said canals, with
all the works belonging to, in connection with, or dependent on them,
for taking into and passing along the canals the constant discharge of
water mentioned above.
(8) To commence the works within six months from the promul-
gation of the law.
(9) To complete the canals in every way, within four years from the
commencement of the works, providing for every occurrence, and
preparing for every event, ordinary or extraordinary, even of the
greatest influence, without having power to exempt themselves from
the liabilities assumed, and without having any claims to compensa-
tion or indemnity.
(10) To observe the contracts made by the government with the
Association General of irrigation to the west of the Sesia, and ih<»s<'
which are in force with other parties, and to satisfy the burdens,
cares, responsibilities, liabilities, and obligations belonging to the said
canals and property, the state considering itself relieved from every
species of annoyance that may arise therefrom.
(11) To respect existing grants of motive power for the service of
industrial establishments.
(12) To carry out, at the request of the government, the construc-
tion of catch- water and branch canals, even as far as beyond the
right bank of the Po, near Casale, on the basis and guarantee, and
with the advantages agreed on for the principal work.
(13) To obtain possession of canals, springs, water-courses, and por-
tions of water, in the same manner and under the same terms.
(14) To raise a capital for the execution of the works, of eighty
millions of liras ($16,000,000), of which fifty-three million four hun-
dred thousand ($10,660,000) are reserved as a fixed capital for the
construction of the new canal, inclusive of interest during the con-
THE CAVOUR CANAL CONCESSION. 297
struction; twenty millions three hundred thousand ($4,060,000) shall
be laid out on the payment of the price of the grant of the crown
canals derived from the Dora Baltea and Sesia, and the remaining
six millions three hundred thousand liras ($1,260,000) on the pur-
chase of canals and volumes of water of private property, aTnd: on
the formation of other canals.
(15) To submit for the approval of the government the projects of
all the new works contemplated in the grant.
(16) To execute the supplementary works at its own expense, which
the government deems necessary to ensure the constant supply of the
main canal, and also to pay all expenses in connection with the gov-
ernment inspection, superintendence, and approval of the works.
(17) To be responsible for the preservation of the effects included
in the grant, with all things pertaining thereto, in the manner and
terms laid down in the list.
(18) To hand over to government all of the above mentioned
effects at the end of the grant, in a proper and fair state of repair.
(19) To gauge the waters of the canal to be derived from the Po, and
carried beyond the Sesia, above the head of the first outlet of said
waters, by means of a hydrometer, made according to the best
hydraulic rules, and referred to bench marks, in order to give a dis-
charge of not less than ninety cubic metres (3,178 cubic feet) per sec-
ond, except when there is a deficiency in the waters of the Po, in
which case, the company shall make up the difference with the waters
of the Dora Baltea.
(20) To lease out when called upon, to a general association of
proprietors west of the Sesia, all the water which flows past the
gauge above mentioned, at a price to be determined on by the gov-
ernment in concert with the society.
(21) To supply with the waters which are not thus leased out, the
parishes, small associations and proprietors, at a price fixed by gov-
ernment.
(22) To retain in its service on the crown canals, of which it shall
be given the use, at whatever salary the government shall establish,
those officials employed on the direction and care of the said canals,
who shall be specified in a list, and also to pay the annual salary of
those on the reserve or retirement list, in terms of the laws in force in
such matters.
(23) To provide the volume of water necessary for the irrigation
of that piece of land in the Lombardiaii territory lying above the
Grand canal of Milan, to its left, provided the government sees fit
to prolong the canal beyond the Ticino.
298 ITALIAN IRRIGATION LEGISLATION.
(24) To pay to the widow and descendants of the late surveyor.
Francesco Rossi, who first pointed out the possibility of utilizing the
waters of the river Po, for the Vercellese and Lorn el lino territories,
the reward that was promised to him while alive, namely, the sum 0f
50,000 liras ($10,000), in the manner and terms which shall be fixed
by government.
(25) To deposit in the state treasury as a guarantee, within fifteen
days from the day of the publication of the law ratifying the grant,
a million of liras ($200,000) in paper of the Italian national debt, at
the par value; this deposit to remain until there shall have been
executed works for the construction of the canal, to a value of ten
millions of liras ($2,000,000).
(26) To observe all the conditions and securities necessary to
develop and harmonize the essential terms of the grant, and to guar-
antee as far as possible the reciprocal interests of the state and the
company.
(2) CONDITIONS OK THE CONCESSION.
(1) That if the company uses the royal canals which the govern-
ment grants them, it must pay for the same canals and property
20,300,000 liras ($4,060,000), to be paid to the treasury in three equal
portions, within twelve months of the promulgation of the law, by
means of bills on banks approved of by government, payable at six,
nine, and twelve months, which may be discounted on the exchange
of London.
The payment of the said bills should be made to the treasury
immediately upon the promulgation of the law.
(2) That at the end of the said fifty years, the whole property and
free disposal of the canal shall fall into the possession of the state.
without any sort of compensation being due to the company.
(3) That the additional works carried out by the company at the
request of the government, and the contracts for purchase, be ap-
proved of by law.
(4) That the expenditure on the formation of new canals, besides
the main one, shall be fixed by general consent, or by means of arbi-
tration, and that the cost of purchasing them shall be according to
what is agreed on with the sellers.
(5) That the company accepts as definite the sum of 53,400,000 //Vr/x
($10,660,000), as an estimated cost, and assumes in consequence, entirely
at its own risk and peril, whatever expenses there may occur in excess
on the construction of the works necessary to ensure the constant sup-
ply and the constant passage of the volume of water stated in article
THE CAVOUR CANAL CONCESSION. 299
1, excepting the provisions with regard to the cost of maintenance and
repairs.
(6) That the coupons of the bonds issued by the company shall be
countersigned by a government commissioner. The sum raised by
the bonds shall be deposited in the public treasury, to be issued to the
company according to the actual requirements of the undertaking.
(7) That the company provide in due time the necessary sum on
which the government guarantees the interest, and that it pays to the
said treasury a commission of 2 per 1,000.
(8) That the bank in London through which the government pays
the interest shall give notice of, fifteen days before they fall due, the
coupons or bills which may have been presented for payment.
(9) That the government has the right of superintending the execu-
tion of the works, and of approving them before they are carried out.
(10) That the government has the right, within four years from the
commencement of the work, of prescribing all the supplementary
works which may be necessary to ensure the constant supply of the
main canal.
(11) That the government has the right of watching over the proper
execution of whatever forms a part of the present concession ; as, also,
of inspecting the management of the company in its financial affairs.
(12) That stock shall be taken by the government commissioners,
in contradistinction to the company, of all the effects included in
this grant, immediately after the company have undertaken the exe-
cution of it, in order to establish an efficient control over them.
(13) That the amount of water-rate and the price of water-power,
except where otherwise specified by government, shall be fixed by
agreement between the company and the government, and that the
price must not be varied without consent of the government.
(14) That the final alienation of the water which the company has
the right to carry across the Sesia must be approved of by law ; and
that in this case the profits of the sale shall be deducted from the
capital of the company, and the state shall pay it the interest agreed
on for the rest of the capital.
(15) That the obligation of the government guarantee is only con-
ditional, and shall only take effect when the net income does not
amount altogether to the sum necessary to make good the guaranteed
interest and refund. (The net income consists of the revenue of every
description, including the rents and the returns of the canals and of
the property handed over by the state, deducting all the charges for
maintenance and repairs, both ordinary and extraordinary, besides
those for administration.)
300 ITALIAN IRRIGATION LEGISLATION.
(16) That government reserves to itself the power of prolonging the
new canal beyond the Ticino, to benefit that portion, hitherto unirri-
gated, of the Lombard territory lying above the grand canal of Milan
to its left, giving the preference of the grant of it to the present com-
pany on equal conditions.
(17) That all questions arising between the company and the gov-
ernment, on the meaning and execution of the present contract, the
decision shall be referred to three arbitrators — the one chosen by the
company, the other by government, and a third l>y the president of
the court of appeal sitting in Turin. The decision, provided it does
not exceed the limits agreed to by the contending parties, shall be
final and obligatory.
(18) That after twenty years of the occupation have transpired, it
shall be in the power of the state to redeem the grant, paying to the
company the capital corresponding to the mean net annual income
of the last three years, at the rate of five per cent, with a deduction
of the sum already refunded by the guarantee paid by government.
(19) That the general approval of the plans are to be given by gov-
ernment, within the year of the commencement of the canal.
(21) That the agreement be strictly limited to the expenditure of
bare capital of 80,000,000 of liras, and that it have its full effect only
when the sum in excess of the two capitals of 53,400,000 liras, and
20,300,000 liras, is being advantageously laid out on the works, and on
the purchase of those works mentioned before, as being supplementary
to the canal.
(3) PRIVILEGES TO THK CUMI'ANY.
On the foregoing conditions, the company shall have privileges:
(1) To introduce from abroad all materials necessary for the con-
struction and maintenance of the canal, with a reduction of 50 per
cent on the customs duties, and to introduce free of customs duties those
instruments and implements of work which the company may need
to carry out the various operations of the canal, under compliance
with the conditions, which, for the security of financial interest, may
be established by the minister.
(2) To be exempt from all registration duties on deeds and contracts,
arising from an execution of the grant, and subject only to the fixed
duty of one lira.
(3) To use the royal canals derived from the Dora Baltea, with the
branches of the same, and everything connected with, or depending
on them, including the factories, mills, thrashing mills, and every
other workshop there belonging to the state.
(4) To enjoy the use of the said state canals from January 1st,
THE C A YOUR CANAL CONCESSION. 301
1883, up to the end of the grant, and after that date, the state shall
resume full and free disposal of the same.
(5) To enjoy the use of the new canal to be constructed for fifty
consecutive irrigating years, beginning from the year in which the
newly constructed canal shall commence working^, if opened: before
the middle of April.
(6) To raise the capital required for the execution of the grant,
partly by means of shares for the fixed sum of 25,000,000 liras, and
partly by bonds bearing interest at six per cent, to the amount of
55,000,000 liras.
(7) To take the place of the state in carrying out the objects of the
grant, and to insist on the observance of all rules in force.
(8) To alienate, with the consent of the government, all or part of
the waters carried beyond the Sesia.
(9) To recover all rents of every kind due the company, in the same
way, and with the same privileges as the law directs for the public
taxes, by the appointed collector.
(4) BENEFITS TO THE COMPANY.
(1) All works in connection with the canal are declared of public
utility.
(2) The profits of the new canals, besides the main one, shall
belong exclusively to the company for the whole period of the con-
cession.
(3) On the cost of construction of the canal, and on the sum raised
according to agreement, government guarantees to the company:
(a) An annual interest of 6 per cent to be paid only for the objects
of the grant, from the day in which the fifty years begin to be counted.
(b) A refund of .3444 lira per cent on the sum expended on the
canals to be derived from the Po, and on the royal canals derived
from the Dora Baltea and Sesia, and on the other items of the balance
of the capital, a refund in proportion to the number of years not yet
elapsed, of the grant.
(4) Government engages to prohibit the opening of new fontanili
(springs) along the projected canals for a distance of 300 metres from
the main canal, 200 metres on the principal supply canals, and of 100
metres on the main branches taken off the said canals by the conces-
sionary company.
(6) Government engages to provide that the communes, provinces,
and responsible bodies be authorized to take that number of shares
and bonds of the company that they may see fit, contracting loans to
meet the payment of said shares and bonds, and mortgaging their
302 ITALIAN IRRIGATION LEGISLATION.
income for three years ahead for the payment of the interests, and
for the repayment of the capital, if it should necessarily exceed the
natural limits of their special taxes.
SECTION III.
GOVERNMENT POLICY AND ENCOURAGEMENT.
GENERAL POLICY AS TO PUBLIC WORKS.*
The Italian government, although of late years advancing rapidly
in the scale of enterprise, and upon a line of policy looking directly
to the development of the agricultural resources of its territory, has
not to this time gone nearly so far as has that of France in the way
of encouraging irrigation enterprise.
Italy owns more great works of irrigation than does France. But
the present government has fallen heir to them from the govern-
ments and other constructors of long ago. Where irrigation is most
demanded in Italy works were already constructed when the prc^-nt
government came into power a few years ago.
Other great interests were demanding attention, so that the improve-
ment of rivers and construction of great drainage works has l>e< -u
more in the line of government effort of late years than has the
extension of irrigation facilities.
PRIZE COMPETITION IN IRRIGATION PI! ACTICK.^
One step made quite recently is worthy of special mention. It will
be remembered from a reading of a former chapter,f that, in 1874,
the French government, by decree, offered prizes for the best exam-
ples of irrigation practice, as an encouragement for the economical
use of waters, and a means of acquiring information about irrigation,
to spread abroad amongst its agriculturists.
The Italian government followed closely in this line of policy, and
by a decree issued in 1879, offered prizes not only for the best exam-
ples of irrigation practice, but also for the best examples of agri-
cultural drainage, of colmatage,J and of drainage and irrigation
combined. The following is the full text of the decree:
* Letters from Hon. Geo. P. Marsh.
^Documents from Hon. George P. Marsh.
fSee, pp. 145-148, ante.
j Colmatage; see, foot-note, p. 82, ante.
ENCOURAGEMENT TO IRRIGATION PRACTICE. 303
Royal Decree, which opens a prize competition for works of Drainage, of Irrigation, and of Drain-
age and Irrigation, combined. June 19, 1879.
HUMBERT I,
By the grace of GOD and the good will of the NATION,
KING uf ITALY.
In accordance with the resolution of the council of agriculture, at
its session of 1879, which provides for the arranging of a prize com-
petition for works of drainage, of irrigation, and of colmatage;
Conforming to the proposal of our minister of agriculture,
We have decreed, and do decree:
ART. 1. There is opened a competition, with the following prizes:
Two of 4,000 lire (1800) and a gold medal; two of 3,000 lire, one
with a silver medal; and three of 2,500 lire and bronze medals, or
a work of art of equal value, in favor of a private individual, or an
association that executes in the interest of agriculture, and with
good results, creditable works of :
(a) Drainage.
(b) Irrigation.
(c) Drainage and irrigation combined, using for irrigation the
drainage water collected'.
(d) Colmatage, alternating with cultivation.
ART. 2. Drainage, sub-letter (a) of the preceding article, must
embrace an area of marshy land not less than fifteen ettari.
Irrigation, sub-letter (6), an area not less than twenty ettari.
Drainage and irrigation combined, sub-letter (c), an area not less
than thirty ettari.
Colmatage, sub-letter (d], an area not less than ten ettari.
ART. 3. Drainage may be accomplished with open ditches or any
system of drain-pipes, but must be so complete as to make the land
well cultivable for winter wheat.
ART. 4. Irrigation must be done according to rule, abundant dis-
tributing ditches must be provided, so that water may percolate with-
out too great resistance.
ART. 5. Abater derived from drainage works may be conducted
for irrigation, to lands at a considerable distance, but it must be done
in a regular canal which will not obstruct its flow.
ART. 6. Crops irrigated may be diversified to suit the character of
the lands.
ART. 7. The explanations of the works entering into competition
must be transmitted to the minister of agriculture, industry, and com-
merce no later than March 30, 1880. The work must not have been
commenced before the present date, and it must be competitive work,
excepting colmatage in progress, of which the following article (8)
treats.
ART. 8. The work, sub-letters (a), (6), or (c), must be completed
no latter than March 31, 1882.
Those, sub-letter (d), are divided into two classes:
(1) Colmatage in progress, by means of which (the colmatage itself
having been executed with good result) for two years at least, pre-
ceding the time specified in article 7, a crop has been raised each sea-
son after the drying.
(2) Colmatage not commenced at the time of the publication of the
competition, but regularly carried on with satisfactory result to the
date specified in the preceding paragraph of this article.
304 ITALIAN IRRIGATION LEGISLATION.
ART. 9. The minister of agriculture, haying received the state-
ments of the work to be entered in competition, will have the condi-
tion of the land examined.
ART. 10. The work finished in accordance with article 8, the min-
ister himself shall order another examination to ascertain whether
the competitor has satisfied the conditions of the competition.
ART. 11. The results of the competition shall be presented in
proper form to the council of agriculture, which has power to award
the prizes.
A.RT. 12. I order, that this decree, provided with the seal of state,
be inserted in the official collection of laws and ordinances of the
kingdom of Italy, and command that every one interested observe it
and cause it to be observed.
Dated at Rome, June 19, 1879.
HUMBERT.
This action is one in the interest of the individual cultivators, and
shows the Italian government to be alive to the importance of the
agricultural development of the country, and to realize the part
which irrigation, drainage, and colmatage must play in such work.
The object is, of course, in so far as irrigation is concerned, to incite
irrigators to thoroughness and system in the preparation of their
lands, and to care and economy in the use of waters, that it may
become known what can be effected by such means, and thus not
only new irrigations be encouraged but old ones remodeled and the
better managed.
HYDIUNJK.Vl'Hir sritVKY OF ITALY.
Finally, the Italian government has in progress probably the most
thorough study of its water-courses and water supply system that
has ever been attempted for any country. So that it is in a position,
which is continually being bettered, to deal with its waters and
streams in a business-like way. Knowing what waters there are.
what claims there are against them, what use is made of those
diverted to satisfy such claims, and what eaii be effected, the govern-
ment of Italy is in a position to advance its agricultural interests.
with a full understanding of the outcome of every proposed move;
and to prevent by exposure of error those movements which must
result only in litigation and loss.
It treats such questions as every prudent business man would those
of his affairs.
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