they may be used in connection with a nucleus of irrigated lands. If, therefore, we have a system of interstate law, or any act on the port of Congress or of the Federal Government that consolidates the uses too much at any one point, then we are to that extent preventing that diffusion in the use of water that makes available the dry lands, which otherwise could be associated for use with the wet lands.

Mr. SINNOTT. Right there, is there or is there not enough water to supply a 500-foot dam and the use demanded in the upper States? Mr. BANNISTER. I really can not answer that.

Mr. SINNOTT. I meant, from what you had heard about that? The CHAIRMAN. Well, you answered that a little while ago, when you made reference to the Southern California Edison Co.

Mr. BANNISTER. No. He has in mind the use of water in the lower States, too, for irrigation. I have heard the Edison company say publicly that they knew there still would be enough water for power use even if the uses in the upper States for irrigation were entirely unlimited instead of being limited as they are by the compact.

The CHAIRMAN. This question involves also the lower States?
Mr. BANNISTER. Yes, sir; I thought it did.

Mr. SINNOTT. It is the full use of the dam. Is there not enough water for the full use of the dam, and also for the upper States? Mr. BANNISTER. Well, after the upper States obtain the 7,500,000 acre-feet, I do not know whether the remaining 7,500,000 acre-feet to be delivered to the lower States at Lee Ferry will require a dam that large or not, or whether the dam should be smaller; I am not prepared to say. Flood control, as well as irrigation and power, is a factor to be taken into consideration.

The other point, with respect to this principle of interstate priority, which is the one that I think the committee should takeMr. RAKER (interposing). Well, if the Edison people could do that, why could not the Federal Government do it?

Mr. BANNISTER. I think so. The Federal Government ought to be able to do whatever that company can do, or any other company. And yesterday I said that personally I favored the Government owning the dam, I did not say why, but there are three reasons that seem to me good ones.

Mr. RAKER. What are they?

Mr. BANNISTER. In the first place the Federal Government has lands in California and Arizona, and it ought to control the agency by which the reclamation is to be made. In the second place, if private companies are to be the owners and operators of private plants at the dam, the ownership by the Government of the dam would be a means of exercising proper supervision and control over those operators in order that their service to the public will be what it ought to be.

And, in the third place, if the Senate and the President should conclude a treaty with old Mexico with respect to the waters of the river and allow Mexico a part of them, then the Government should be in control of or be the owner of the reservoir in which the water is to be stored, so that obligation may be met.

So I think there are those three reasons for saying that the Government ought to be the owner of the dam.

Now, comparing again those two principles of equitable division and interstate priority, or priority regardless of State lines, with respect to the point I have in mind.

As I see it, the Wyoming decision has killed the reclamation of lands in the arid West; that is, on interstate streams, except where these States on such a stream enter into compacts. And here is the reason: If the qualified principle of interstate priority laid down in that case is to be the governing law between the States, then every State which secures

Mr. SINNOTT (interposing). What principle do you mean?

Mr. BANNISTER. The principle of interstate priority; the one that you spoke of a moment ago. If that is to be the governing principle, then every State which gets a project from the Federal Government would be acquiring a priority of right against the later users in the other States, and we may therefore expect that the Senators and Representatives of those other States will resist the action of the Federal Government, or the contemplated action, in giving to the one State a project which would carry with it a priority against the other States.

Mr. RAKER. Well, they would have to have a priority, or it would be perfectly improper to invest money until they did get a priority, would it not?

Mr. BANNISTER. Under the compact, no, it would not be improper. In both basins the people who live therein know how much water each basin is to have, and in making their investments, and the Government in making its investments, knowing fully well in advance the quantity of water, will know how to adapt their enterprises to that quantity.

Now, returning for just a moment to another point: If you are going to have this other principle of "dog eat dog," then we may expect every State except the State that is to get the project to oppose that project here in Washington in Congress. The States could not take any other course; it is necessary to their very life; and they will not take any other course; and it will not be difficult for the objecting States to win approval of other Senators and Representatives from States not on the stream at all.

Why? Because the Senators and Representatives from the Atlantic States already have serious doubts about the wisdom of the Government making reclamation investments; and the Senators and Representatives of the great Mississippi Valley States have serious doubts about the wisdom of further agricultural competition.

Therefore, if we precipitate conditions under which States upon an interstate stream fight other States upon that stream, as I see it, it may be expected that the Federal Government will not build a project.

But if you will require in advance-and that is the point I want to make to this committee-if whenever an interstate stream is involved, you will require in advance, before voting money for the Federal project, that the States shall agree upon a division of the water, then reclamation can, as it ought to do, go ahead-for God knows the West needs it.

Now, in that connection, the reclamation association met in Salt Lake City in October

Mr. SINNOTT (interposing). In most of the States that is more or less of an academic question, is it not, because interstate streams have generally plenty of water-except in Colorado?

Mr. BANNISTER. No, indeed, they do not have plenty of water; not in the section in which these six States are. We commit murder where water is involved in these Western States.

Mr. SINNOTT. As between States?

Mr. BANNISTER. I think no murder has been committed as between States; but it is done within the boundaries of the States-citizen will murder citizen for violation of water rights; it is one of the favorite grounds of debate.

Mr. RICHARDS. And there is not much water to fight over, at that. Mr. BANNISTER. I started to say that that reclamation association is a western association, composed of delegates from all of these States. The particular purpose of that association is to further the work of the Federal Government. And yet in October, in its platform, what resolution did it adopt? It adopted a resolution to the effect that, before there should be any more Federal reclamation there should be the requirement of a compact between the States in which the project was to be situated.

Mr. RAKER. I can not follow your reasoning on that, somehow; perhaps it is my fault.

Mr. BANNISTER. No: the fault is mine, if I do not make myself clear.

Mr. RAKER. No. I thought the water was to be used by the first claimant, if he could show a beneficial use, and not let it run to waste and unused because somebody else, 10 or 15 years later, might figure on some other use of it. I have always thought that that was the real principle of using water.

Mr. BANNISTER. The appropriators do have a right to use water in the order of their appropriations, and if all the water has not been appropriated at any given time no one can hold the water up just for spite, because that would be a waste.

Mr. RAKER. Well, would not that be the effect of your theory of the States controlling it? If there was a stream of water running along a State line that was not used by the upper States, and there was no immediate prospect that the upper States could use it——— Mr. BANNISTER (interposing). Then the lower States could use it and, if interstate priority is the governing principle, could continue to hold it.

Mr. RAKER. And, therefore, they would use it for a beneficial use: and they ought to be permitted to do that, rather than have it saved for some imaginary use in 50 or 100 years, and let it run to waste in the meantime.

Mr. BANNISTER. Under the compact, the lower States could use the water allotted to the upper States by that document until the time comes for the upper States to use it; and the upper States could do the same thing as to water allotted to the lower States. The rule works both ways.

Mr. RAKER. Then it would be a very bad state of affairs for a man to put in $50,000,000 or $100,000,000, and then have somebody above him take the water and destroy his works later on.

Mr. BANNISTER. That man before putting in his $50,000,000 or $100.000.000 should see to it that he knows what the quantity of water will be that his State will enjoy. And he should not be allowed to use more than that, and his State should not be allowed--whether it is my State or some other State-more than that quantity at the sacrifice of the economic future of another State.

Mr. RAKER. Is that not contrary to the decisions and the doctrines that have been laid down in many of the Western States?

Mr. BANNISTER. Why, no.

Mr. RAKER. If the water is unused, the first man that makes application gets the right to use it, against all subsequent comers, does he not!

Mr. BANNISTER. Within the boundaries of a single State, yes.

Mr. RAKER. I know; but the courts have held that the boundaries do not prevent that rule

Mr. BANISTER (interposing). They have not held that. There are only two decisions on that subject, Judge Raker; that is the Kansas case and the Wyoming case: and the Kansas case says that priorities are not to obtain as between States: that the principle of equitable division is to obtain. The other case says that, with the certain modifications I have mentioned, the principle of priority, within State lines-or intrastate priority, as I call it-shall obtain. But both decisions say that when the controversy is between an appropriating State and a State that fundamentally is a riparian-law State, the principle of equitable division shall apply; and that is the reason-California being fundamentally a riparian-law State, and the other States being fundamentally appropriation States, the principle of equitable division applies to the Colorado River. California is to be one of the users of the river for irrigation and

power.

Mr. Chairman, I was asked yesterday to submit some figures.
Mr. SINNOTT. You say California is a riparian State?

Mr. BANNISTER. California is fundamentally a riparian State. Mr. SINNOTT. Well, that is modified; it is not the eastern doctrine of riparian rights.

Mr. BANNISTER. It is fundamentally a riparian State. I beg your pardon, are you from California?

Mr. SINNOTT. No; I am from Oregon.

Mr. BANNISTER. Well, Oregon and Washington are the same as California; they are all fundamentally riparian States. And in California, the great case was the case of Lux v. Haggin.

Mr. SINNOTT. What do you mean by being "fundamentally a riparian State"? Do you mean having the water flow down undiminished and unpolluted?

Mr. RAKER. It is the common-law doctrine of riparian rights.

Mr. BANNISTER. The common-law doctrine of riparian rights. All of those States, California, Oregon, and Washington hold that prior to their statehood the Federal Government had in their areas riparian-water rights that were attached to their lands. And by the way, the right of the lower owner on a stream was not to have all of the water come down undiminished in quantity. He had to take it subject to such diminution as resulted from reasonable use above. That has been recently held in one California case, and I think it is the law everywhere.

Mr. SINNOTT. Is it you view that Oregon has the riparian doctrine?

Mr. BANNISTER. Oregon, as I understand it, is fundamentally riparian. But let me say this: That when the year 1866 came along and the Federal Government by act of July 26, 1866, provided that approprations could be made, then from that date on in Californiain your State, and in California and in Washington and in a few other Western States where the California system of hybred-water law prevails (but not in six of the States in the Colorado River Basin) wherever you had two litigants, one of them being a prior grantee of riparian land from the Federal Government claiming against a subsequent appropriation from the same stream, there the riparian grantee got the riparian rights and the subsequent appropriator got nothing.

Mr. SWING. Is that because the riparian owner had had a prior beneficial use?

Mr. BANNISTER. No; it was because he held a prior grant of riparian land. In those States the appropriator and the riparian owner alike-I am speaking now of the California system States, including Oregon-in those States the appropriator and the riparian owner both have rights by grant from the Federal Government; the appropriator's grant is not in a deed, it is the act of 1866; the riparian owner's grant is the grant contained in his patent or deed. Therefore, in those States, if you have a prior appropriator and a subsequent riparian grantee, on the one hand, your prior appropriator gets the water because he is the first grantee; but if, on the other hand, the riparian grant is prior and the appropriation is subsequent, the riparian grantee gets the water.

Mr. RAKER. Well, the prior appropriator gets his rights by virtue of the Federal Government saying that he should have it?

Mr. BANNISTER. He gets his right by virtue of the Federal Government saying he should have it, in effect, out of the riparian right owner by the Federal Government prior to statehood. In other words, in that act of 1866 the Government practically says, "Whatever is the law of your local community we make our law; and if the local community says that the appropriation right shall exist, we say it shall exist and it shall be carved out of our property; that is, our riparian right."

But in these Colorado system States, where the riparian rights do not exist, the appropriation rights come, not from the Federal Government, but by the law of the State, which says that a water right may be obtained if certain things be done; and then that water right is of the appropritaion variety.

Mr. SINNOTT. I understand the Oregon doctrine to be that the riparian right is abolished, except as to a very limited domestic use?

Mr. BANNISTER. Yes. We can go further. Before there were any statutes in Oregon and California the riparian right was not abolished; it was a fundamental law. Originally there were 10 California system States: and, out of those 10, 5 have now, by statute, made further encroachments upon the riparian system, and Oregon, as I recall it, is 1 of those 5.

Mr. RAKER. Well, Oregon made hers riparian, and it is applicable, by virtue of the act of Congress.