beds, basins or channels for such purposes and uses: Provided, That no such diversion shall interfere with, diminish or divert any prior vested right of appropriation without the due legal condemnation of and compensation for the same; and natural lakes and ponds of surface water having no outlet shall be deemed parcel of the lands whereon the same may be situated, and only the proprietors of such lands shall be entitled to draw off or appropriate the same." "§ 5566. All waters flowing in subterranean channels and courses, or flowing or standing in subterranean sheets or lakes, shall belong and be appurtenant to the lands under which they flow or stand, and shall be devoted, first, to the irrigating of such lands in aid of agriculture, subject to ordinary domestic use; second, subject to such use, may be devoted to other industrial purposes: Provided, however, That nothing herein contained shall in any way affect appropriations heretofore made."

THE RECORDING OF WATER RIGHTS.

In Kansas, water rights, or proof of the appropriation of water, is recorded only in the county in which such appropriation is made. Under the law, a person, company or corporation wishing to appropriate water must post a notice at the point of diversion, stating the amount of water the appropriator claims and the means by which he intends to divert such water. He must also, within ten days after he has posted such notice of appropriation, post a copy of it in the office of the county clerk, and a copy must be recorded by the register of deeds in a book to be kept for that purpose. The purpose of the law is to protect the appropriator who has spent money in the construction of works for the diversion of the water, against a subsequent appropriator who might deprive him of his water supply, since the law declares that between appropriators the first in time is the first in right. The intent of this procedure, then, is to enable the prior appropriator to establish his priority without the expense of a process at law and the examination of many witnesses. In most instances the acquired water right adds much to the value of the land to which it is appurtenant, and oftentimes the value of the water right is as great as that of the land itself. Considering this, it would seem that the record of appropriation would be preserved with utmost care, but an examination of the records of water rights in several counties shows that such is not the case.

In one county visited by the irrigation commissioner he found the notices of appropriation, sent to the register of deeds for record, tacked upon the wall around the room, and no record at all made of such appropriations. Although this officer would not think of tacking upon the wall a deed or mortgage sent him for record, he thought nothing of placing an equally valuable document where, if it fell on the floor or was blown out of the window, all record of it would be lost. In another county the register of deeds had acquired the practice of placing such notices of appropriation in a pigeonhole in the vault in lieu of recording them. While this method is manifestly safer than posting on the wall, such records could be taken from the vault, and in this manner all public record of them lost. In only a few instances was it found that such records were properly recorded as required by law.

Most states in which the right to appropriate water is recognized have long since abandoned this method of acquiring water rights, and the irrigation commissioner has been forced to the conclusion that some other method must be adopted pro-erly to safeguard the appropriator of water in this state.

In the past the state has exercised no control over the amount of water which may be appropriated. The appropriator has only to name the amount of water he claims, regardless of the amount of land on which he expects to use such water. Ten cubic feet per second may be appropriated for ten acres of land, or the appropriator may claim one second foot for one thousand acres. No one with proper authority or knowledge checks the application; and since it is the duty of the register of deeds only to make a record of the appropriation, he is not interested in the amount. This method has resulted often in excessive appropriations being made by early appropriators, with the result that while the whole amount of water is not used, subsequent would-be appropriators are reluctant to file because of the fear that they cannot assert their right to the water.

The irrigation code needs modification in other ways to properly encourage, and at the same time regulate, irrigation development, but many of these things require time and study. The irrigation commissioner therefore wishes to recommend that, as a step in this direction, sections 5665, 5727 and 5728 of the General Statutes of 1915 be amended to read:

"5665. Record of appropriation of water to be kept by the irrigation commissioner. That upon the passage and taking effect of this act, the register of deeds of any county wherein has been provided a record of appropriation of water and proof of the posting of notices thereof, as required by section 5665, article 1, chapter 57, General Statutes of 1915, shall within six months thereafter turn over to the irrigation commissioner a certified copy of all such records on file in said counties; and upon the passage of this act the register of deeds of any county in which water for irrigation is appropriated shall thereafter record only such records as have been officially issued by said irrigation commissioner."

"S5727. Appropriation of water; water rights granted by the irrigation commissioner. Any person, company or corporation desiring hereafter to appropriate water shall make application to the irrigation commissioner for a water right. Such application shall state, in cubic feet per second, the quantity of water desired, and shall be accompanied by a statement showing and describing the proposed point of diversion, the area to be irrigated, and giving a description of the proposed irrigation works, ditches and other appliances to be used in diverting and utilizing the water. Whenever application shall be made to the said irrigation commissioner for a water right under this section, it shall be the duty of the irrigation commissioner to examine the application without delay, and as soon as possible thereafter to issue the water right, if in his judgment the water required for beneficial use is available and remains unappropriated for irrigation purposes. The date of the appropriation, if granted, shall be coincident with that of the time the application was first received in the office of the irrigation commissioner. The water right shall be officially issued in duplicate, one copy of which shall be filed with the irrigation commissioner and the other recorded in the office of the register of deeds in the county where the diversion is made."

"§ 5728. Time within which claimant must commence excavation or construction of works for such appropriation; rights of subsequent claimants. Within six months after a water right has been granted the claimant must commence the excavation or construction of the works in which such claimant intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion unless interrupted by stress of weather or other unavoidable circumstance. By compliance with the above, the claimant's right to the use of water relates back to the time the application was first received in the office of the irrigation commissioner. A failure to comply with the above conditions shall deprive the claimant of the right to the use of the water as against a subsequent claimant who complies therewith."

ARTESIAN WELLS.

The General Statutes contain a very extended act regulating in great detail the use of artesian wells, and storage reservoirs, ditches, etc., connected therewith. The first section of this act (section 5674) limits the application of it to artesian wells more than 400 feet deep. As far as is known, there are no wells in the state over 400 feet deep, and many of them are less than 200 feet deep. This act, therefore, is inapplicable to artesian wells in Kansas, and, it would appear, should either be amended by striking out the clause limiting it to wells more than 400 feet deep or should be repealed entirely.

DAM LAWS.

An examination of the laws relating to the building of dams reveals the fact that different requirements are made for the construction of dams by different interests, although no reason seems to exist why this should be. A dam constructed for the purpose of storing water for irrigation creates no greater menace to the public safety than one of like dimensions constructed for a milldam; nevertheless the requirements for the safety of the structure are quite different in the two cases.

Section 6248 of the General Statutes of 1915 requires that if a dam more than ten feet high be constructed for "irrigation purposes," the plans shall be drawn by a reputable engineer, who is required to give a bond for its safety as long as the structure is in use.

Section 6248 of the General Statutes of 1915 gives any person the right to construct a "milldam” on his own land across any stream, but puts no limit on the height of the dam and requires no guarantee for the safety of it.

Chapter 82 of the General Statutes of 1917 says that anyone wishing to construct a dam across a navigable stream shall submit his plans to the Public Utilities Commission for approval, after which he may proceed with the construction of it. No bond is required for the safety of the dam.

Sections 8841 to 8849 of the General Statutes of 1915: "Dams either of earth or masonry may be constructed by counties, townships, etc., as a part of the public highway." There appears to be no requirements regarding the qualifications of persons designing such dams, nor any provisions made to guarantee the safety of them.

The effect of these laws is to discriminate against irrigation projects. Much of the irrigation development along central and western Kansas streams depends upon the construction of dams for the storage of water. For the most part these dams are constructed by individual farmers for the irrigation of single farms. In such cases the farmer can ill afford to spend as much money in the construction of the dam as could an industrial enterprise, but notwithstanding this, a greater burden is imposed on him. The result of this is not only to throw an obstacle in the path of irrigation development, but to make it difficult for many farmers to develop at all and comply with the law.

Most Western states require that the plans for a dam be submitted to the state engineer, or some competent engineering board, for approval, after which the dam may be constructed, and no bond is required. The structure, of course, can be condemned and removed at any time it is deemed to be unsafe. Kansas has a law (sections 5656 to 5661, General Statutes of 1915) providing

for the condemnation and abatement of dams deemed unsafe. This, together with the requirement that the plans for any dam must be approved by some competent commission, should be sufficient without the requirement of a bond. In any event, we should have a uniform law for the designing and safety of dams, whether they are used in connection with irrigation projects or industrial enterprises.