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REPORT Submitted to His Honour the Lieutenant-Governor by Professor Louis G. Carpenter, of Fort Collins,… British Columbia. Legislative Assembly 1908

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Submitted to His Honour the Lieutenant-Governor by Professor Louis G. Carpenter,
of Fort Collins, Colorado, and the Honourable Frederick J. Fulton, who were
appointed Commissioners to inquire into the irrigation of land in the Province of
British Columbia.
By Command.
Provincial Secretary.
Provincial Secretary's Office,
February 11th, 1908.
Victoria, B. C, February 10th, 1908.
To the Honourable James Dunsmuir,
Lieutenant-Governor of British Columbia,
Victoria, B. C.
Sir,—In accordance with the requirements of the Commission dated the 19th day of
August, 1907, issued to Professor Louis G. Carpenter, of Fort Collins, Colorado, and myself,
empowering us to inquire into the irrigation of land in the Province of British Columbia, as
Chairman of the Commission, I have the honour to report to you as follows :—
Your Commissoners, accompanied by R. F. Child as secretary, left Victoria for the
interior of the Province on the 20th day of August, 1907, and visited the following places,
[viz.: Ashcroft, Kamloops, Vernon, Kelowna, Penticton, Osoyoos and Keremeos, these places
being selected as typical of the general conditions existing in the arid belt of the Province.
Arriving at Ashcroft on the afternoon of the 21st August, we drove out past Judge
Cornwall's ranch almost as far as the Basque Ranch, this part of the country furnishing a
good illustration of the irrigable bench lands of the dry belt. The next day we drove up the
Bonaparte as far as Hat Creek, on the way back calling at the Dominion Ranch, owned by
Mr. Semlin. From Ashcroft we proceeded to Kamloops and spent the afternoon inspecting
the irrigation ditch and works of the Canadian Real Properties, on the west side of the North
Thompson River. This company has had a system in operation since 1904, having a ditch
some seventeen miles long, intended to supply some 5,500 acres of land. The next day we
drove up the South Thompson River and round by Campbell Creek, where a number of small
holdings are being irrigated by separate individual ditches. On the 24th we proceeded to
Vernon and spent two days inspecting the Earl of Aberdeen's Coldstream Ranch and the subdivisions which have been made there ; also the irrigation scheme of the White Valley Irrigation and Power Company, which is intended to supply some 20,000 acres. On the 27th,
accompanied by Mr. Price Ellison, M. P. P., we drove down by Long Lake to Kelowna, noting
during the drive thousands of acres of valuable land which are expected in the near future to
be brought under irrigation. The following day we drove round Kelowna and the Mission
Valley and on to the benches above Mission Creek, and had pointed out to us the wonderful
capabilities of that district. On the 30th we took the steamer down Okanagan Lake to Penticton, and the next day drove round inspecting the irrigation scheme of the South Okanagan
Land Company, which has shown much energy and expended a very large amount of money
in developing its scheme, and is able to show many orchards in splendid condition. On the
following day we drove to Osoyoos, accompanied by Mr. L. W. Shatford, M. P. P., observing
some 12,000 or 14,000 acres which the South Okanagan Land Company intend shortly to bring
under ditch. When this is done, what is now simply pasture land will become most valuable
fruit and garden land. On the 3rd September we drove over to Keremeos and the next day
drove along the valley of the Similkameen, where we looked over the scheme of the Keremeos D 2 Report of Irrigation Commission. 1908
Land Company, which proposes to irrigate some 6,000 acres, and which had its ditch already
partly constructed and a large force of men at work. From Keremeos we returned by way of
Penticton and Sicamous to Victoria, where Professor Carpenter spent some time in examining
the system of water records and the Statutes relating thereto.
Subsequently, in the month of September, I left for Colorado, reaching Greeley on September 23rd, where I was joined by Professor Carpenter. We there met a number of prominent
men who had for years been connected with, and made a study of, irrigation matters, and
discussed many of the leading features in connection with the matters we had been commissioned to inquire into. From Greeley we drove to Fort Collins, taking some two days in that
district examining various irrigation systems, some of which have been in operation for years;
also in interviewing a number of practical and experienced men in such matters. From there
we went to Denver, where we spent a day or two interviewing irrigation engineers and lawyers
and examining the system of State Water Decrees. I left Denver for Victoria on the 29th
The views of Professor Carpenter, in which I fully concur, are set out at length in his
personal report submitted herewith.
I have the honour to be,
Your obedient servant,
(Signed)        FRED. J. FULTON.
Chairman of Irrigation Commission.
In considering the present and desirable laws of British Columbia, I have considered
especially the laws of Colorado and of the other Western States of the Union, with which I
have previously been acquainted, and, in addition, the laws of many other countries, especially
of the various British Colonies. I have been acquainted for a good many years with the
conditions in Western United States, and have seen the development of much of their system,
and of the development of the laws as applicable to their condition. From the examination
of the laws of all the countries, and a knowledge of the general conditions, I come to the
general conviction that those of the Western United States are, as a whole, the ones which
best meet the general conditions that have developed and are likely to develop in British
Columbia.    These will be discussed more at length later in this report.
General Conditions of British Columbia.
The Commission visited the southern portion of British Columbia, especially that between
the Canadian Pacific Railway and the International Boundary. This was because the problem
which had arisen in connection with the irrigation had mostly developed in this section.
Some parts were, therefore, typical of the situation which was arising. A knowdedge
concerning the other portions of the Province (so far as one member of the Commission is
concerned) was obtained through various means—by conversation, by study of reports,
especially of the Canadian Geological Survey and the interpretation of these facts by various
meteorological conditions. It was a great surprise to find the mild climate and the great
possibilities in the growth of fruit, and especially with such crops as peaches. The trials
already made and the experience already acquired show, beyond question, that large areas can
be devoted to the growth of peaches and fruits of like character ; besides the hardier fruits,
like apples.
Speaking generally, this portion of the Province is bounded both east and west by high
ranges of mountains, and the extensive intermediate area with mountain masses of much lower
elevation. These are largely isolated, extending to an elevation of from 4,000 to 7,000 feet,
generally wooded, and form sources of many small streams. The larger streams, like the Fraser,
Thompson and Columbia, are cut down below the elevation of the country and are largely out 8 Ed. 7 Report of Irrigation Commission. D 3
of consideration for use for irrigation. The smaller streams must be the source of water for
irrigation, with slight exceptions. The land in the low mountain masses is separated by
valleys of moderate extent, but of great fertility when supplied by water. The lands then
command a price of from $100 to $200 per acre, and more, almost as soon as water is available—an increase which is remarkable.
The location of the land on benches above the main streams in relatively small tracts
makes the construction of gravity ditches on a large scale almost out of the question, because
of the excessive cost. The natural development is by irrigation from the side streams or by
some system which will take the water from the main streams and use it on a limited tract,
which is naturally some system of pumping. The great increase in the value of land with the
application of water makes a great inducement for irrigation, and is bound to develop to a
very great extent in the immediate future. I think that everyone will agree that it is the
part of wise statesmanship to encourage the development of these natural resources. Of all
sources of wealth, that which depends upon agriculture is the most stable, varies least from
year to year, and furnishes a population whose interest is always on the side of good government, and forms an element which is always in favour of good citizenship.
The communities which depend upon irrigation are particularly stable and of high
character, because the very fact of irrigation reduces even such risks that are inherent in the
growth of crops dependent upon water. It gives opportunities for the exercise of skill and
depends less upon chance, and thus makes the returns much more certain and creates a
contented frame of mind. The difference between such agricultural communities and those
dependent upon mining is noticeable throughout the Western States. While the latter have
brilliant periods of activity, they also have great periods of depression ; the population is
transient; the communities are subject to great extremes, and one who is interested in his
country and his fellowmen cannot but wish for the characteristics of the more stable
agricultural communities. The periods of financial depression emphasise these distinctions, for
even if the returns become small, the agricultural community is largely self-supporting and is
able to tide over a period of depression with very little distress.
The resources of British Columbia in this line are very great.    Undoubtedly, nearly all   \
the valleys and the benches at an elevation less than 2,000 feet may be turned into productive
land of high value, certainly if water can be supplied.    In general, it may be expected that
from three to five acres of watershed will be required to irrigate one acre of land, but the conditions are such that almost no limit can be put  to the future development.    The casual ]
examination of Southern British Columbia would indicate that several hundred thousand acres |
might reasonably be expected to be developed   within a reasonable time.    The question of
development is largely an economic one,  and thus the limit changes from year to year.    Land
which cannot be developed now, under changed conditions, might justify development, as the
tendency is for the values of land to increase and the cost of development to decrease; this
limit is constantly extending.    Moreover, the limit which is set by the available water supply
also tends to increase, because it is a well-known fact that a given amount of water will serve
more land after the land has been irrigated for a few years; this is both because the aridity of
the land has decreased and the skill in the use of water has increased.
It is, therefore, evident that British Columbia is destined to be an extensive area of irrigated land of high price, and which will be divided into small holdings, and thus maintain a '
large population. The part of wisdom, as has been recognised by your people, is to foster this
development. Up to the present time, such development as has taken place has been an
incident in the history of the Province. In that respect it has been parallel to the experience
of almost all other commonwealths. It has reached a point where difficulty has arisen in the j
application of laws that have been on the statute books, and also conflicting interests have
arisen which neither precedent nor law has been able to meet. This has likewise been the case
with almost all other commonwealths. A marked feature of the development for the past few
years in almost all countries is the struggle over water ; the great growth of cities, the development of large manufacturing industries, has made necessity for water one of the important ones.
In earlier conditions and in a more humid country, very little question of this character
arose; but now, with the larger settlements, it becomes a primary question, and the legislatures, parliaments and courts had to meet the question, and communities have found it necessary to go to great expense to bring water for domestic and manufacturing supply. Such
requirements cannot be entirely foreseen, but the general needs can be anticipated and provision
amde for the conditions shown by experience. D 4 Report of Irrigation Commission. 1908
The Evolution of Irrigation Laws.
(Colorado as an example.)
The statute laws, as well as judicial decisions, are generally an outgrowth of conditions,
and there is a marked growth in both to meet changing conditions. Communities under the
same situation are apt to go through periods of development of much the same character. It
is because of this that I take Colorado as an instance, for it has gone through stages of progress in its irrigation development which, it seems to me, are the same as those which British
Columbia is likely to experience. Colorado was the first of the United States to feel the need
of special legislation; the first to feel that the riparian doctrine of the common laws did not
apply, and thus made the first systematic development in its attempt to fit the needs of an
Anglo-Saxon community to the conditions of the arid regions. Its laws have come by steps as
the needs have been recognised; its development has been much more extensive than other
States and, therefore, it is farther in the march of progress. Other States have followed the
same path, have in some cases avoided the difficulties which experience had shown in Colorado,
but, as a whole, have gone through the same periods of development. The application to the
present case is not in recommending their laws as laws to be followed, but by being instructive
instances of progress of development and the conditions which will need to be met, though
with slightly different circumstances of custom and legislative authority. It may be divided
into the following periods of development: —
(a.) That of individual or small development.
(b.) That of co-operative or company period.
(C.) The reservoir period.
(d.) The consolidation.
These periods overlap each other, but, at the same time, the beginning of each period can
be quite definitely stated.
The individual period of development is the first, where individuals are struck with a
desire to take up land and choose the land which can best be irrigated, that is, on the small
streams of large falls where short ditches can be built and then constructed with individual
effort or with the help of only a few.    This is prior to the time when capital is available.
After a time the locations which can be improved by individual effort are largely taken
up, and it is realised that more extensive enterprises are necessary. This means large areas of
land take large capital, and thus either the co-operation of owners of a large tract is required,
or the construction of a canal by combined capital; thus it may be either a co-operative enterprise on a large scale, or a ditch built as an investment. In Colorado, the first of the
co-operative ditches was built about 1871, and the ditch, by the investment of capital, a few
years later. The settlement of the country and the greater pressure on the water supply
Then comes the period when the current water supply is insufficient. Farmers found
that they might grow more profitable crops if water were available at periods when the
streams are low. With a stream of water in its natural state, crops, like grain and forage
crops, may be raised to the greatest extent, but these do not produce the greatest returns, nor
will they keep the lands at work for a large part of the year. They realised that potatoes
were a profitable crop, forced the construction of the first reservoir, and when it was found
that the profits were even greater than anticipated, it brought an immediate demand for a
large increase. Thus, within a dozen miles of Fort Collins, the farmers have themselves
invested some $3,000,000 or more in the construction of reservoirs. It has also revealed the
fact that many supplies of water, which were considered small and negligible, are of great
value when collected in reservoirs.
The consolidation period is one which as yet has been developed but little in Colorado ;
but I think the tendency, however, is evident. The occasion arises from the fact that during
the construction of the early enterprises the projectors had only a small amount of capital;
consequently, they were limited often, and built a ditch whose cost would be within their
means. Perhaps they built a ditch to cover as much land as they thought would ever be used,
but with the development of the country someone else found it profitable to build another
ditch that would parallel the first and cover a larger amount of land ; then, probably, comes
a third enterprise, and may be a fourth, parallelling each other, duplicating their management;
often two or more ditches supplying water for the same tract, and thus proving an economic
waste.    Even after it became evident that economy would result in the combination of these 8 Ed. 7 Report of Irrigation Commission. D 5
ditches and supply the same land, local jealousies often prevented the consideration of such a
question. Such considerations are still effective, but in many ways the tendencies are manifest, and I anticipate before many years that many of these ditches now parallel will unite
their enterprises, and at any rate work in co-operation so that water may be run through the
ditch best prepared to supply a given tract of land. The development which takes place at
present is the natural outgrowth of the situation, and comes mostly from a realisation of the
community of interest.
These periods are such as are being passed through in British Columbia. The condition
of the Province has made the first stage at present the principal one. The physical conditions
render large canals out of the question, but would render experienced enterprises necessary.
The necessity for construction of reservoirs is already upon you ; the streams having low supplies of water in summer, a time when the needs of fruit call for an available supply, and the
great value of the fruit crops force this condition with added emphasis.
While the above give the steps in the development of the law, the laws themselves may
be divided into different classes. The first class may be considered those which have to do
with determining the right to water. In Colorado the rights in general were taken to depend
upon beneficial use, and not upon a record as in British Columbia. This was definitely
established as the basis when the constitution was adopted in 1876. A series of laws was
required to provide means for determining the amount of water to which a claimant was
entitled; while the general principles recognised beneficial use, the first decree based the
appropriation on the size of the canal. Afterwards this was seen to be wrong and it was
changed by Court decision so as to recognise the area which was irrigated or the amount of
water which was used as the measure of beneficial use, rather than upon the amount which
the canal might carry. This was determined after the water had been applied. Subsequently
it has been recognised that this again should be modified, so as to allow some time for the
project to develop.
The laws provided the machinery for establishing the fact of use. These consist
essentially of means to make claim to an intended use, and subsequently to make a final claim
showing the amount of use. The final record is made by the Court and is termed a decree,
and states both the amount of water that is called for and the date of the beneficial use, the
latter being of importance in case of conflict with other claims. There have been made suits
between different claimants to establish the prior claim. The defects that have arisen in
these laws will be pointed out later, the purpose now being to give a summary of the general
A second class which may be recognised are those laws which provide for the public
administration of waters. The public control recognised that all waters in public streams
belong to the public. It was very soon found, as the country developed and as the claims
increased, that water gave rise to very serious disputes very early in the history of the
commonwealth where the germs of a public administration were developed. It was not,
however, until the claims increased in number, and especially until after large canals were
built, that the necessity became acute, and that it became generally recognised that the State
must take the control and distribution of waters into its hands.
The particular occasion for this arose on the Cache la Poudre River. At first the newer
ditches were short, and up-stream above the older ones, so that they had the advantage of
position. Afterwards the lower community joined in large ditches which became up-stream
ditches, and thus the lower community gained the advantage of position. The experence
converted two influencial communities on the same stream, so that they recognised the
necessity of a public distribution of water, and this public management developed into the
present system, although not at once. It has grown and extended as necessity has become
evident from year to year, and undoubtedly will be extended in the future.
The control itself is invested in an officer who is termed a State Engineer. Under him are
five Division Engineers, one for each of the particular water-sheds of the State, and
subordinate to these are sixty-seven Water Commissioners, as they are termed, one in each
district, with deputies as they may need. In general, these commissioners have to deal with
one stream or a small portion of a larger stream. They are employed from ten days to the
whole year, according to the local necessities. Their duty is to distribute water among the
ditches in accordance with the rights of the respective ditches. In that respect they have
summary authority. An appeal lies to the State Engineer from any decision of his subordinates. D 6 Report of Irrigation Commission. 1908
In carrying out his duties as subordinate to this general purpose, the State laws require
measuring flumes or other devices to be put in each canal and to be under the superintendence
of the State Engineer. The State Engineer also determines the quantity of water in streams;
the loss of water by seepage; determination of the capacity of reservoirs; direct supervision
of the amount which is distributed by reservoirs, etc.—all having for their general purpose the
determination of the fairness of distribution and to protect the rights of the respective users.
In general, the control of the State ceases after the water enters the ditch. The Water
Commissioner may reduce the amount entering a ditch in case of waste or excessive use. This
is a delicate power to exercise and is very rarely done, except in such cases of waste as is
evident when water is permitted to run over roads. Excessive use is difficult to establish,
and in general, Water Commissioners do not attempt to exercise this power except in extreme
cases. Their power depends very much upon the tact and good judgment which they display,
and it is found that, with experience and confidence of the community in their judgment, more
power and authority is given them willingly by the community.
Aside from these duties of the State Engineer, which arise from his authority as an
administrative officer, there are other duties which cluster about his office, as for example :
He has jurisdiction over the construction of dams, has power to determine their safety, and to
condemn or fix a safety line for any given dam, beyond which they shall not fill, and to exercise
in general both an engineering and a police supervision.
It is also an office of record, in that all preliminary claims are filed in his office. The
supervision of the construction of State roads and bridges has also fallen to the office, as a
matter of convenience, because there has been no other officer of the State to whom it could
be conveniently given.
A third general class of laws and of court decisions have been in connection with the
development of reservoirs. There has never been any question as to the right to expropriate
land for this purpose. The laws have developed along the determination of the rights to store
any flood or excess water, and in defining the limit of their rights. It was originally stated
that they had no right to store during the irrigation season, and, consequently, that the right
of canals was superior to the right of storage. In the course of years conditions have changed.
The importance of reservoirs has been increasingly evident, and there is a tendency, more
especially noticeable in court decisions, to recognise the right of a reservoir to store at any
time. The recognition of ditches as having superior rights to reservoirs resulted in placing
decrees for ditches, even of recent date, prior to reservoirs that have been built many years,
and as, with the development of the State, the reservoirs are producing more public wealth by
raising higher priced crops, it has been increasingly felt that their prior rights should be
respected. This doctrine is not as yet fully developed, but the tendency, I think, is unmistakable.
The right of a reservoir to use a portion of the bed of a stream as a reservoir was early
recognised in a court decision. Likewise the right to carry water in a stream from a reservoir
to the head-gate of a canal was first an outgrowth of practice and subsequently incorporated
in statute. The right to condemn land for reservoir purposes has always existed, on the same
footing as the right to condemn land for ditch purposes.
There has also developed an important right to exchange water. Sometimes a canal
having an early right of record to the running water of a stream has been situated down
stream. They might not need water at all times, but if their right was recognised as primary,
the reservoirs above would be prevented from storing. Newer canals nearly all start farther
up the streams. They could build reservoirs and fill them through their ditch. By then using
reservoir water to compensate the ditches with earlier rights below, the upper ditches could
take water from the main stream in exchange. This has led to an elaborate system of exchange,
so that in some cases the upper ditches obtain water at their head-gate which is the result of
some six exchanges.
Several of these rights, and especially the last one, are instances of development to meet
local conditions ; a few years ago they might not have been thought necessary. In most cases
the practice has developed in some communities by common consent, in order to meet the
situation which many thought was necessary, and subsequently may have been converted into
statute. These are illustrative of the point I above mentioned, that the law will to a great
extent develop to meet the conditions.
A number of other laws have developed because of the necessity to protect the rights of
others.    These are essentially such as to see that the reservoirs do not store water so as to 8 Ed. 7 Report of Irrigation Commission. D 7
infringe on the rights of others, and to see that the reservoirs do not take advantage of their
position to capture water as it goes by at the expense of others. Some reservoirs have been
prone to do this when the stream ran through their basin. The State Engineer may put in
measuring head-gates, may require gauge rods, and may cause a survey to be made of the
capacity of the reservoir at the expense of the owners when the reservoirs are on a natural
There is a constant tendency to recognise the increasing importance of reservoirs and
their value. It has been found, as a matter of experience, that many insignificant streams of
water become of importance when stored. While the public and the courts have been jealous
to prevent any encroachment on the rights of others, it is now recognised that a canal may
store water which has been used previously in direct irrgation. This is a recognition of the
general right to do almost anything that does not conflict with the rights of others.
Practically, the difficulty in this is that the amount of water which has been previously
used has been so poorly defined and often has been stated in excessive terms, that the result
has often been unjust.
A fourth class of laws is of more recent development. These are the ones relating to
water districts, and modelled essentially on the Australian law. In effect, it gives a community
authority to organise a municipal organisation, and power to construct or build irrigation
works for the benefit of the whole area, to contract indebtedness and to raise the cost by taxation. One of the principal benefits at present is that the land of a community can join together,
and often may be combined in a joint work which would otherwise be almost impossible.
There has been in some cases evidence of a tendency for districts of this character to be formed
to purchase existing works. In most cases this has been so far to purchase reservoirs to supplement a supply which they already possessed.
Besides the laws mentioned in the above classes, there have been innumerable laws and
decisions which scarcely fall into any general class, and are not of particular importance, so
far as indicating the development of the system. For instance, such laws as determine the
method of the payment of the Water Commissioners, or to provide that bridges over canals on
roads should be maintained by the public, and many others, which are matters of minor detail
and practically give a rule of action.
Defects of Colorado  Laws.
The summary given above of Colorado laws is rather to illustrate the development, not to
carry the idea that they are perfect. Some material defects have been evident, but, as a whole,
her system of laws has been recognised as one of the most perfect, because it has fitted the
conditions. Senator Stewart, of Nevada, spoke of them as being the most perfect of any
One of the most serious defects is in the establishment of decrees, corresponding to the
record of British Columbia. This largely arose from the lack of knowledge of water and
ignorance of terms, especially those relating to measurements at a time when water rights
were determined. This led to excessive grants, which have been the source of most serious
troubles which have arisen, and which are not yet ended. This condition has become a serious
one, and while a corresponding situation has developed in British Columbia, it is much easier
to rectify. The difficulties would have been lessened, or possibly entirely prevented, had the
State been represented by a qualified engineer, or had the hearing been before someone
acquainted with water conditions.
A second defect has arisen from the fact of the non-continuity of service of water officers,
therefore, there has been no cumulative experience for the benefit of the public. All subordinate officers have been appointed for a short time. Experience in water matters has not been
a necessary qualification, and the result is that there has been a constant change of officers.
Each officer has had to practically learn the duties of his position and come in contact with
troubles without the aid of the experience of his predecessor; hence it is that some districts
are no farther advanced than they were twenty years ago. Other districts are now meeting
problems that other regions of the State solved to their satisfaction many years since. A very
great progress would have been made could this defect have been provided for.
As a consequence of the system of appropriation and decrees already mentioned, there has
been a very serious over-appropriation of streams. When, in addition to this, there has been
recognised a right to transfer water from one canal to another, a very serious situation has
developed,  especially  from   the  indefiniteness of  the former records and  the difficulty of D 8 Report of Irrigation Commission. 1908
determining the amount to which a claimant should justly be entitled. He may, for instance,
have had a record for 50 cubic feet per second, but have applied it to an area of land that
might not have used more than two or three. When transferred to another canal the physical
limitations are removed, and in court procedure it has been difficult to establish limitations
which have been made otherwise by its physical situation. The excess decrees in themselves
would not be so bad in many cases if the transfers were not admitted, or the transfers would
not be so bad were it not for the excess decrees. The combination of the two, however, has
revealed a weakness that is the subject of much irritation, and must lead to some move to
The law in regard to decrees or records provides that, after the decree of the court has
been rendered, no appeal can be made unless entered within four years. Inasmuch as
the injustice is not generally evident until long after that time, the decrees have become
permanent and there has been no provision to establish abandonment; it has led to many
cases which are manifestly unjust and are contrary to general public interest.
I have given so much space to Colorado conditions because, in many ways, it appears that
the physical development of British Columbia is similar to the development of Colorado. The
fundamental difficulty of the water rights depends on the record made with the Government
officer, and that there is power to modify or amend this grant The situation in British Columbia
is, therefore, freer from more fundamental complications. The development of the irrigated
country has not proceeded to so great an extent as to have caused the establishment of many
vested rights that would cause so much difficulty to modify or re-define; nor is the power of
Government or Parliament limited, as it is in an American State.
A number of miner recommendations may be made, a few more general ones and of greater
importance.    The first of these concern reservoirs and their development.
It is manifest that future development of British Columbia, to a very great extent,
depends upon reservoirs. The small streams heading in the low mountains are apt to become
low at the period of the year when water is most needed ; there is an excess of water at other
seasons. In many of these cases there are splendid reservoir sites, some of which can be
improved at an absurdly low cost. There are other natural lakes which touch upon private
land. Any development of the fruit interests requires water late in the season when the
stream is low. The storage of water becomes, therefore, of extreme importance and of very
great value. Whatever may be its value to the immediate owner, it is of still greater value
to the Province as a whole, and hence, in my judgment, it is of extreme importance to the
Province that improvement of this character should be encouraged, and power be given so
that projects of this character may be facilitated. It seems that under present conditions a
person who wants to store water does not have the right to expropriate land. This power is
a fundauiental one, and the use is properly a public one. It has been found that the benefit
to an individual is an exceedingly small part of the benefit to the public. The present situation, therefore, renders it possible for one man owning a small tract of land to hold up an
enterprise and play the policy of a " dog in a manger." This is exceedingly unfortunate and
contrary to public policy. The power to expropriate does not necessarily mean that it needs
to be exercised. It is found by experience that the fact that it is known that such a power
exists makes it much more probable that an agreement may be reached without the exercise
of the power.
In connection with reservoirs there is also associated the right to use the streams to
transport the water from the reservoir to the canal. There should be no question about this
right. Water, when once stored in the reservoir from flood or other unused water, becomes
more particularly private property. It has been stored and saved by the foresight and at the
expense of the owner of the reservoir. Otherwise it would have gone to waste; his enterprise
should be encouraged. When once stored in the reservoir and saved to a time when needed,
then his right to the water should be recognised as a matter of common justice and a matter
of necessity of development. There are, however, some cases arising in the Province where
such right has not been recognised or at least disputed. If any doubt exists, I should by all
means recommend that it be settled by the inclusion of a clause which specifically recognises
the right to use the natural streams for such purposes.
The natural limitations to the use of a reservoir or to such use of a stream are that the
rights of others shall not be infringed upon, and this means that the owner shall not take out
more than he puts in, and might possibly suffer his portion of the loss of the stream in carriage.
This loss is a question of fact.    It varies under different conditions and provision need to be 8 Ed. 7 Report of Irrigation Commission. D 9
made for its determination and also means taken for determining the amount which is turned
into the stream. Confusion has sometimes arisen in the practical administration of reservoirs
by the difficulty of determining whether the amount turned out of the reservoir is equal to
that which enters, at times when the reservoir is not entitled to store. This difficulty I met
by the use of a gauge rod and by records of the height of water in the reservoir. When the
level of the water remained the same, then it was evident that storage was not going out.
The details of such management would naturally be worked out by the proper officer, and
some discretion should be left him to adopt the best method fitted for the particular case.
Apparently a large part of the development of British Columbia depends upon the ability to
construct such reservoirs of large or small capacity.
A second important defect is that relating to records. In this case the present situation
in British Columbia is very much the same as it has been in Colorado. I have gone over the
records on file in the office of the Chief Commissioner of Public Lands, and specially examined
the records of the early years. The similarity in the character of the records and the early
claims in Colorado are remarkable. They have the same faults and lead to very much the
same case troubles. They are indefinite in character. The land to which they apply is often
poorly defined or not defined at all. The amount of water is not capable of exact definition.
The amount of the record is almost invariably that which the claimant asked for, and not
what he actually needs. In many cases, perhaps in most cases, this has yet led to no great
difficulty, but the system has inherent in it the seeds of future difficulties. On some streams
already there has been serious trouble, and the only reason why it has not been more serious,
or has not been evident on a greater number of streams, is simply because the development
has been slow and thus the pressure has not been very greatly felt. In a few cases the difficulty has been encountered, and is only an indication of what will be met on nearly all the
streams of the Province with future development, unless steps are taken to deal with the issue.
The question is undoubtedly a delicate one, for people whose rights are affected are
jealous of any move which may seem to disturb them, and yet the matter is so serious that it
needs to be faced, and the sooner it can be met and disposed of the less will be the difficulties
and, consequently, the better can the problem be met. The fact that the rights in British
Columbia depend upon the record of the grant from the Government renders it possible for
Parliament to treat the matter better than it could be treated in the States. Great care
needs to be exercised that the rights are not interfered with arbitrarily. Undoubtedly the
users would have a right which might be recognised as a moral right even if it is not fundamentally a legal one, and it would not be recognised as good policy to arbitrarily disturb these
rights or to unsettle them. At the same time, the situation is so fraught with greater difficulties, and the disturbance of rights and of values is so great under the present conditions of
over-appropriation which have grown up under the past situation, that I would very strongly
recommend some decided action that would enable the situation to be met.
The conditions differ on different streams and, consequently, the remedy that might be
suitable on one might quite possibly be unsuited to some other. Hence there should be some
means by which a stream could be taken by itself, the facts investigated as they exist, the
evils that have arisen investigated, some means to determine the amount actually needed
or the amount which has actually been used, and then power to revise the records to correspond. From consideration of this subject, or one almost exactly similar to it, extending over
some eight or ten years, this seems to be the most feasible way to take care of a delicate and
difficult situation which will become worse as time goes on.
This might be done through the court or through some other body like a Commission or a
Provincial expert official, as might be thought best. From observation and experience in this
country and from many discussions with attorneys, I am very strongly of the opinion that a
Commission or an officer of the Government would be the most satisfactory way. The very
fact that he is not confined to the procedure of a court gives a freedom of method which is
almost necessary to get at the facts. It is to a great extent true that the strongest evidence
will be obtained on the ground, and not from the tongues of witnesses, and the Commission or
the expert, if properly qualified, would be able to ascertain the facts and to determine a substantially equitable revision of the records. It would probably be desirable that there should
exist an appeal to the court to avoid manifest injustice or to insure that the finding has been
based upon sufficient care and evidence. If these have been exercised, the finding should not
be lightly disturbed, and should, I believe, remain effective unless lack of such care has been
exercised. D 10 Report of Irrigation Commission. 1908
The management of this problem, as has been mentioned, is a delicate one, for it
involves not only the problem of getting essential justice, but it also involves to a great extent
the problem of creating confidence in the justice of the decision. People are more prone to
dispute over their water rights than over almost any other issue. An interesting relic of this
feeling, even in ancient times, is involved in a word that has come down to us from those
times, and although the word now has a different signification, yet it embodies the sense of a
bitter feeling. This is a word which originally meant the two people who took water from
the same artificial water-course ; in other words, disputants over water rights, and these were
termed " rivals." From that day to this, users of water have been very sensitive over any
question which affected their rights and, consequently, while the essential equity might be
determined by an expert, the other necessity of establishing confidence and acquiescence in the
result as found could probably be obtained by a body of larger number—a Commission. It
has been found in most experiences that the essential elements of water disputes are rather
problems solved by a complete knowledge of facts than a knowledge of law. Our lawyers
themselves in the Western United States recognise the complexity of the problems, and that
they are most apt to be solved rightly when there is a knowledge of the water problems and
some knowledge of law, rather than when there is a great knowledge of law and a small knowledge of water conditions. In most cases, furthermore, an immediate decision is needed and
summary action needs to be taken. Hence there is an increasing feeling in Colorado, at least,
even among attorneys, that there should be a separate water court, with power to pass promptly
upon water questions. If such Commission has such authority to examine into the various
records of older streams, it should have power to examine witnesses, to determine facts on the
ground itself, and be constituted so that it will have the inclination and the power to examine
into the facts as they exist, and then to decide in accordance therewith.
A third matter that will soon become pressing in British Columbia is some form of water
administration. I have personally been reluctant to make such recommendation, but with
much thought given to the various questions that are arising and class of questions that seem
bound to arise, they nearly all lead to the desirability of some form of water administration.
Whether this should be under the charge of the office of Chief Commissioner of Lands, whether
it should be in the form of a Commission, whether it should be a separate office, or in what
particular form, is a matter of secondary moment. It is already manifest that on the streams
where the records exceed the flow of the stream, serious local feeling has developed. It is
common enough in such case for one to take what he can, to build his dam with only such
consideration for the rights of others as he may be forced to give. Then there arises the
tearing out of the offending dam by the injured party and sometimes that occurs by violence;
at any rate, the situation is not conducive to good feeling.
When action is called for by the court, it is one not apt to be adapted to the situation.
The action is apt to be deferred, and is like bringing a ponderous piece of machinery where a
small mechanism would suffice. The condition calls for constant supervision to meet the
varying, fluctuating flow of the stream and to meet the varying conditions from day to day.
No user wants a constant flow. Some one with summary power to act from the situation as
it develops from day to day, or even from hour to hour, is needed on these streams. This, I
believe, will be best accomplished if such men as may be required should be under the general
supervision of some responsible power higher up, who can give general directions and to whom
may be exercised the right of appeal.
Such officer should have the power to cause each canal to construct a suitable regulating
gate, a measuring device, so as to give a means of distributing the water in accordance with
the records.
The expense of such administration would be the greatest objection, but that need not be
large, in comparison with the benefit that would result, and especially when it is realised what
a future lies before the agricultural part of British Columbia. It is only a question of time
when such an officer or office will need to be provided for. The revenues that are received
from the water records are many times the cost of any such administration. The immediate
benefit would probably be to soon increase the revenue more than in proportion to the
additional cost, but at any rate, if it did not do this it would save the public the expense of
enormous litigation or prevent the neighbourhood difficulties that are the source of much
public tribulation. So far as the extension of such administration is concerned, it should
naturally be adapted to growth. The streams which would require supervision are at present
few, and these could be taken up in the order in which administration is most needed.    The 8 Ed. 7 Report of Irrigation Commission. D 11
same thing is true of the investigation and settlement of the excessive records. Such an
officer could allay disputes, could solve difficult problems, and thus smooth the way of the
The points above mentioned are the most important which develop in the consideration
of the situation in British Columbia. There are, in addition, many minor points, many of
them isolated. It is not to be expected that a law can be drawn up at this time that shall bs
perfect or shall meet all future conditions which may arise. It is more important that it
should have within itself the possibility of development; that it should meet the principal
classes of questions; that it should be elastic so as to adapt itself to the growth of the future.
If a law could be made that would perfectly meet all difficulties that now exist, it is
undoubtedly true that within a few years some questions wrould arise which are not now foreseen. The one lesson which it is desirable to draw from the Colorado experience, which is
typical, is that a constant evolution is taking place, and the laws and the decisions and the
administration must develop to meet these as they arise.
Of some minor questions, one is the unit of measurement; a simple matter apparently,
and yet it involves the source of much difficulty. The use of water in British Columbia, as in
the Western United States, has apparently been a development of the early Californian miners'
rights, and thus came the use of some of the many forms of the miner's inch. This has been a
convenient term, but has lacked the essential element of a unit. The characteristic of a good
unit is that it is one which has a definite value at all times and all places, and which can be
repeated or re-measured with certainty. Now, a primary difficulty with any of the so-called
units which is measured by the size of the opening, under a given pressure, is that it is a
varying quantitj'. Ten inches is more than ten times one inch, and one hundred inches is
more than ten times ten inches, when measured under the form prescribed by custom. The
conditions are also such that the amount of water flowing through a given orifice may very
easily be altered. Consequently it is far better to define the quantity of water in all public
records in definite terms, as cubic feet per second. This is a definite quantity, does not depend
upon the manner in which it is measured, and as the necessity arises it can be measured with
a greater degree of refinement. At present the weir is in most cases the best method of
measurement to determine the cubic quantity and cubic feet per second, but no single method
is at all essential, and the objection to the miner's inch may be lessened, if not entirely
removed, by defining as a cubic foot per second.
Another matter of considerable importance which has often been spoken of is the duty of
water, or the amount of land which a given quantity of water would irrigate. This is subject
to such wide variations, according to conditions and to legitimate variations, that I should feel
it would be unwise to fix a quantity unless there was some possibility for a revision in some
cases. In the case of heavy soils and sandy soils, the quantities would differ. In the case of
fruit or grain, in the case of soils underlaid with gravelly sub-soil, or those with impervious
sub-soil, the conditions may vary very much. The records have, however, so often been excessive that it would undoubtedly be beneficial to fix a sum as a guide that should be liberal
enough to cover most cases, and yet giving an opportuity for some variation, if the proper
officer thought best. The record in most cases indicates rather the extreme rate at which the
water may be used at any one time, than the continuous flow. All things considered, for the
conditions of British Columbia no single amount would probably be better than an amount of
75 acres per cubic foot per second. This, if maintained as a continuous flow, would cover a
tract nearly two and a half feet in the course of ninety days. This is more than would be
required or could be used, except for a short period. The tendency of continued irrigation is
to fill the sub-soil, and thus after a few years to decrease the amount of water required. No
one would use such an amount of water for ordinary crops. With hay meadows of the higher
elevations or for meadows farther north, an amount much greater than this would probably
be called for. At present such lands are not under irrigation, and apparently will not be for
many years to come, if they ever are. There are times when the owners of orchards or of other
lands requiring irrigation would want water at this rate, or perhaps even at a greater rate for
a limited time. Hence, as ordinarily used, this amount would be a fair duty to adopt, and if
made the basis of record would be liable to cause very little injustice, especially if there be
some provision for revision or examination by an expert officer in case of appeal.
It is manifest from the general conditions of the Province that there is also destined to be
much development by pumping of water from streams. The questions that arise from this are
much simpler than those which arise from reservoirs.    The same right to expropriate land or D 12 Report of Irrigation Commission. 1908
right to occupy the stream channel with pumps or water wheels, actuated by the current,
should also be encouraged. The same right to expropriate should be given to all structures
of this kind and to all the necessary construction, like pipe lines or electric lines, if power is
to be transmitted electrically.
A fundamental question which has been the source of much discussion is as to whether
water should be appurtenant to the land, or whether it would be separated and transferred
from one use or one piece of land to another. Engineers as a whole have felt that the water
should be appurtenant to the land and not capable of transfer. Through most of my experience
I have shared in this belief, but from later developments and from later experience I think
this should not be absolute. The difficulties that have arisen from the right to transfer have
been such as have come, to a great extent, from excess records, or from the fact that a transfer
often affected the rights of others. It has been manifest, however, that future uses could not
be foreseen. Cities have developed, manufactories have been established that have required
water that could not have been anticipated. If there could not be some way of obtaining
water for such uses, then the development of the community is limited. An important manufactory may give the means of livelihood to hundreds of thousands of families. The amount
of water which it uses may be small and it may become of great public importance that some
means be provided to meet these conditions when they arise. Likewise it may be a
matter of public wealth that water be transferred from land producing coarse product of small
value to other lands which are capable of producing higher products of greater value. The
danger that has been feared is that the water might be severed from its use and fall into the
hands of separate owners. There is also the trouble that has come from excessive records.
Men who have had excessive records have sold a part of their record,'and still retained enough
to supply them with what water they needed. There have also been cases where the needs
of land have been supplied by a seepage, and where the owner has disposed of his whole
record for transfer and still had his land watered completely. These have been abuses.
The first difficulty would be eliminated when the records are made to agree with the actual
use of the water. The other case could be eliminated under the conditions of the record in
British Columbia. I am now convinced that there should be some right to a limited transfer.
This should not be a right open without limitation, and should be subject to enquiry by
competent officers in each case. Evidence taken in court, without reference to the actual
evidence in the field, has been unsatisfactory, and, therefore, in case some administration is
provided for, a better result will be secured by referring this to that office or officer, and his
decision be taken as final, subject to the proper provision that he be competent and the
proper pains be taken.
It would seem to me the proper policy for the Province to pursue is to be as liberal as
is consistent with the general interest. Every company which attempts to develop an enterprise, either for irrigation or power, is running many risks, and the conditions may be very
easily made so onerous that development will be very slow. Unrestrained developments, or
the conferring of rights which ma}' be the subject of extreme speculation, may be troublesome. But, on the other hand, it is proper for the Parliament of a new Province to consider
whether the advantages in the increased settlement and the increased taxable property is a
partial return for liberality in other respects.
The forms of contract made by irrigation companies with its customers should be subject
to some supervision.
A company which starts out in good faith and proposes to initiate an enterprise should be
given a reasonable time for its construction and development. This should be a variable time,
depending upon the magnitude and difficulties of the enterprise. It may easily be three or
five years, and with some enterprises that will undoubtedly be developed in the Province a
longer period. It has been found by experience in the States that the period of settlement, or
of full use of the water of large enterprises, at least may be ten or fifteen years. Many of
these enterprises have been financial failures, one reason being the fact that the condition of
the laws and the interpretations of the courts made it seem necessary for the canals to build
to the full capacity at once, even though a large portion of that capacity might not be called
for for a number of years. Hence, some of the companies have been swamped by the accumulated interest. This is not good policy, for in the long run such extra expense becomes a
charge against the land which it supplies, or, if it is a failure, it reflects upon the community.
The point is to encourage enterprise, made in good faith, surround with safeguards, and not to
load with such conditions as to prevent development. 8 Ed. 7 Report of Irrigation Commission. D 13
Some cases have already developed in British Columbia where water is carried from one
stream across a divide and used on land in another watershed. So far, there are generally
cases where the water is taken from one tributary to another tributary of a larger stream.
Some objection may be made to some of these cases in the future. The practice is a natural
development and in many cases it is to be encouraged. The practice has been very extensive
in Colorado. Some canals have been built at an elevation of over 10,000 feet, long tunnels
have been constructed, and, as a matter of fact, water brought from the Pacific slope to the
Atlantic. The essential element for determination is whether the water is beneficially used,
and whether it injuriously affects the previous rights of others. Where such questions are
properly shown, no difficulty has been made to the carriage of water to another watershed.
In the laws of British Columbia relating to water there is much to commend, and the fact
that nothing has been said of other points does not mean that it is otherwise. Attention has
been given in this report more particularly to the points where supplementary clauses need to
be added, or the Act changed in order that trouble should be prevented in the future. The
conditions of British Columbia are much more favourable for the improvement of conditions
by remedying some of the greatest defects than are the conditions in most of the United States.
I have been particularly encouraged by finding that some of the difficulties which have been
the most serious in American legislations, that relating to riparian rights, has already been
considered by your jurists. In a case many years ago which arose from a controversy in
British Columbia, one of your jurists stated : "It would be useless to expect that the table
lands upon mountainous ranges stretching throughout the Colony should ever attract settlers
upon them, or that the stable wealth of the Colony should ever be worked benefically, if
riparian proprietors of land should be permitted to set up the common laws of England against
the advancement of the material interests of the Colony."
While undoubtedly it would be wise to revise the Water Act, yet the most necessary
changes can be included in a few headings as already indicated, and these may be summed up
as, first, a recognition of the right to store water in reservoirs, to expropriate land for that
purpose, to carry water through natural streams. Second, a means of investigating and handling
the excess records that already exist on streams and to adjust to the situation as found. Foi
this, a Commission would seem to me to be the most likely to establish confidence, as well as to
obtain an equitable decision. Third, a water administration, or the germs of one which could
develop as necessity grows. This could best be with one responsible head, and might be under
such provision as accords with the genius of your institutions. Fourth, most of the other
desirable changes would come as a consequence of these provisions. The water administration
needs to be elastic enough to fit the needs as they develop. The most pressing needs of the
excess records on the streams where the need is already felt should be taken care of now. On
most streams the need is not as yet pressing, but the administration should be provided with
means whereby it could investigate other streams, ascertain needs of those who apply for
records, and should pass upon the records of the future so that the difficulties of these cases
will not arise again.
In closing, the Province should be congratulated upon its great natural resources. While
they are evidently great in many lines, there is no question of their greatness in the lines of
agriculture and fruit-raising, and that this greatness and the difficulties of the future will be
materially affected by the wisdom of the legislation of this and succeeding Parliaments.
It is the evidence of history that a country once irrigated always continues to irrigate and
the practice extends; it is the support of dense populations; it is the principal wealth of a
prosperous and contented community, and though Governments rise and fall, even though
civilisations perish or change, that small and apparently ephemeral structure of irrigation
persists and remains throughout all the changes.
Respectfully submitted,
(Signed)        L. G. CARPENTER.
New York, January 22nd, 1908.
victoria, b. c.
Printed by Richard Wolfendex, I.S.O., V.D., Printer to the King's Most Excellent Majesty.


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