approved February 21, 1879, and all other acts and parts of acts in conflict or inconsistent with the provisions of this act, are hereby repealed.

SEC. 11. This act shall take effect and be in force from and after the passage thereof. Approved February 10, 1881.

DEVELOPMENTS OF MINES.

Rights-of-way and easements.

AN ACT

TO AMEND AN ACT ENTITLED, "AN ACT CONCERNING
RIGHTS-OF-WAY, EASEMENTS AND OTHER NECES-
SARY MEANS FOR THE DEVELOPMENT OF MINES,"
APPROVED JANUARY 12th, 1877.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. Section two of the act concerning rightsof-way, easements and other necessary means for the development of mines, approved January 12th, 1877, is amended to read as follows:

SEC. 2. Whenever any mine or mining claim, shall be so situated, that for the more convenient enjoyment of the same, a road, railroad or tramway therefrom, or a ditch or canal to convey water thereto, or a ditch, flume, cut or tunnel to drain or convey the water or tailings therefrom, or a tunnel or shaft may be necessary for the better working thereof, which road, railroad, tramway, ditch, canal, fiume, cut, shaft or tunnel, may require the use or occupancy of lands or mining ground, owned, occupied or possessed by others than the person or persons or body corporate, requiring an easement for any of the purposes described, then shall the owners of the mine or mining claim first above mentioned, be entitled to a right-of-way, entry and possession, for all the uses and privileges for such road, railroad, tramway, ditch, canal, Hume, cut, shaft, or tunnel, in, upon, through and across such other lands or mining claims, upon compliance with the provisions of this act.

SEC. 2. This act shall take effect from and after its passage.

Approved January 7, 1881.

WATER-RIGHT TO USE OF.

AN ACT

3-367-370,2840

TO REGULATE THE RIGHT TO THE USE OF WATER FOR
MINING, AGRICULTURAL, MANUFACTURING, AND
OTHER PURPOSES.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. The right to the use of water flowing in a river, creek, cañon, ravine, or other stream, may be acquired by appropriation, and as between appropriations How may be priority in time shall, subject to the provisions of this acquired. act, secure the priority of right.

must be in

SEC. 2. The appropriation must be in good faith, for Appropriation some useful and beneficial purpose, and when once per- good faith. fected, may be converted or changed to any other beneficial use than that originally designated, or for which it

may have been employed.

may change

sion.

SEC. 3. The appropriator, or his or their successors in 425 × 10 38, 22 = interest, may change the place of diversion, if the rights Appropriator acquired by others are not thereby interfered with, and place of diver no injury to others therefrom results, and may also extend any ditch, canal, flume, pipe, or other conduit, to points or places beyond such as may have been designated or first used, saving the rights which may have accrued prior to such extension.

SEC. 4. A person, company, or corporation, desiring

to appropriate water, must post a notice in writing in as Notice of ap
conspicuous a place as possible, at the point of intended propriation.
diversion, stating therein: First, the quantity of water
which is intended to be claimed and diverted, giving the
number of inches, measured under a four-inch pressure,
and accurately describing the point of its diversion.
Second, the purpose for which the same is claimed and
intended to be used, and the point or place of such in-
tended use. Third, the means which are designed to be
employed for diverting and conducting such waters, and

Record of notice.

Fees for cording.

Appropriator

to commence work.

the size or dimensions of the ditch, canal, pipe, flume, or other conduit therefor. A copy of the notice must, within the time allowed in case of a mining claim, be furnished for record to the officer of the county or district whose duty it may be to make record of mining claims; which said officer shall be entitled to the same fees for recording such notice as may be fixed by law for recording notice of a mining claim; Provided, that when the notice of such claim to water is accompanied by a descriptive survey of the proposed work, or by a map of the same, such officer shall be entitled to the same fees as shall be fixed by law for recording deeds of con

veyance.

SEC. 5. Within sixty days after the notice is posted, the claimant or his or their successors in interest, must commence the making, digging, or constructing, of the ditch, canal, flume, or other conduit, by means of which it is intended to divert and conduct the waters claimed; and the work for the complete diversion and conducting Continuance of of said waters shall be prosecuted diligently, and without unnecessary interruption; Provided, that when such work cannot be carried on by reason of unavoidable natural causes, such as the state of the weather or the action of the elements, the saine shall be resumed as soon as practicable after such causes of delay are removed.

work.

What is complete diversion.

propriations.

SEC. 6. By "complete diversion," as used in the last section, is meant the conducting of the waters claimed to the place of intended use, as described in the notice, or to such other place as may have been adopted, and an actual beneficial use thereof made.

SEC. 7. By a compliance with the above conditions Perfected ap and requirements, the appropriation is perfected, and the right to the use of the waters claimed, which the ditch, canal, flume, or other conduit is capable of conducting, is hereby declared to relate back to the time of the posting of notice of claim. Provided, that nothing in this section contained shall be so construed as to ren

Effect of.

Ditches, etc., heretofore made.

3-370

der any person, or party, liable to damages, or to make compensation to any appropriator for any waters used prior to the time of a "complete diversion" thereof, as defined in the last preceding section.

SEC. 8. All ditches, canals, and other works heretofore made, constructed or provided, and by means of which the waters of any stream have been diverted and applied to any beneficial use, shall be taken to have secured the right to the waters claimed, to the extent of

the quantity which said works are capable of conducting, and not exceeding the quantity claimed, without regard to, or compliance with, the requirements of this act.

sion heretofore

SEC. 9. In case where any person, company, or corporation, have heretofore made claim to divert the waters claim to diverof any stream, and the same has not been forfeited or made. abandoned, and have not cut, excavated, made or constructed the necessary ditch, canal, flume, or other conduit to carry such waters and apply the same to a beneficial use, such claimant must within four months from and after the date of the approval of this act, commence work in pursuance of the requirements hereof, and carry the same to completion, or at the expiration of the said time, or upon failure to prosecute the work in the manner herein required, such claim shall cease to be of any validity as the foundation of a right to the waters of any such stream.

owners.

entitled to right-of-way.

SEC. 10. All persons, companies, and corporations, Right of land owning or claiming any lands situated on the banks or in the vicinity of any stream, shall be entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed. SEC. 11. When any such owners or claimants to land Land owners have not sufficient length of frontage on a stream to afford the requisite fall for a ditch, canal, or other conduit on his own premises, for the proper irrigation thereof, or where the land proposed to be irrigated is back from the banks of such stream, and convenient facilities otherwise for the watering of said lands cannot be had, such owners or claimants shall be entitled to a right-of-way through the lands of others, for the purposes of irrigation; Provided, that in the making, constructing, keeping up, and maintenance of such ditch, canal, or conduit through the lands of others, the person, company, or corporation proceeding under this section, and those succeeding to the interests of such person, company, or corporation, shall keep such ditch, canal, or other conduit in good repair, and shall also be liable to To keep conthe owners or claimants of the lands crossed by such repair. work or aqueduct, for all damages which may be occa- Liable for damsioned by the overflow thereof, or result from any neglect ages. or accident (unless the same be unavoidable), to such ditch or aqueduct.

duit iu good

SEC. 12. In case of the refusal of the owners or claim- When right-ofway is refused. ants of any lands through which such ditch, canal, or to petition the other works are proposed to be made or constructed, to county comallow the passage thereof, the persons, company or cor

missioners.

Commissioners

to give notice

tition and ap

poration desiring the right-of-way, may present to the County Commissioners of the county, a petition describing the lands to be crossed, the size of the ditch, canal, or works, the quantity of land required to be taken, and setting forth the names of the owners or parties interested in the lands to be crossed, and praying for the appointment of three appraisers to ascertain the compensation to be made to such owners or parties interested. Upon the filing of said petition, the County Commisof hearing pe- sioners shall give notice, by publication in a newspaper, if there be any printed in the county, or if there be none, by posting such notice in three of the most public places in the county, one of which shall be at the county seat, that at a time and place specified in said notice, said petition will be heard, and such appraisers appointed, unless good cause be shown by the parties adversely interested, why the said petition should be denied. Said notice shall be published or posted for not less than thirty days prior to the hearing thereon, and the expenses of the publication or posting of the same shall be defrayed by the petitioners.

pointing of appraisers.

Oath of appraisers.

hear proofs

and make certificate.

SEC. 13. The said appraisers shall, before entering on the duties of their office, take an oath to faithfully and impartially perform the duties as such appraisers, and make a true and just award of the amount of the compensation to be paid for the right-of-way over and use of the lands to be crossed by such ditch, canal or other conAppraisers to duit. They shall hear the allegations and proofs offered by the respective parties, and after viewing the lands and premises, shall ascertain and certify the compensation which in their judgment it is just and proper to make to the parties owning or interested in the lands to be crossed for the use of the same, and for damages, if any, on account of injury to other portions of the tract of land of any owner or interested party, after making allowance and deduction for real and direct benefits which such owner, or party interested will derive from the making of such ditch, canal or other works. The appraisers, or a majority of them, shall subscribe such certificate, and the same shall be recorded in the office of the County Recorder, and upon the payment of the compensation and damages, if any, or the tender thereof to the proper parties, or in the absence of such parties from the county, then, upon deposit of the amount in the County Treasury to the credit of the said party, persons, company, corporations, petitioners shall have the right of entry upon and of way for the proposed ditch, canal or other works.

Subscription

and recording of certificate.

the

or