250 



THE IRRIGATION AGE. 



Enos Clarke, out of court minus the irrigation by 

 which he had sought to restrain the Cambridge 

 and Arapahoe Irrigating and Improvement Com- 

 pany from using water from above his mill-dam. 

 In view of the great injury or inconvenience that 

 the public might suffer, the Supreme Court re- 

 fused to allow Clarke his injunction holding that 

 he had been guilty of laches in allowing such a 

 public work to proceed in construction, without 

 raising his hands to interfere or prevent. 



George W. Shields, of Omaha, in discussing the 

 decision says: " This case was decided without 

 respect to the validity of the irrigation law. I 

 doubt if anybody in the State, aside from the 

 lawyers who were fighting Clarke's case, believed 

 he had any show for his contention. He was a 

 mill owner, and had for years been using water 

 from the stream. He had acquired a vested right 

 to its use. That was a common law right. When, 

 later, the irrigation company in question stepped 

 in and interfered with that right without making 

 compensation, it took away a right granted to 

 Clarke by the constitution to enjoy his prosperity 

 unmolested. The passage of a statute could not 

 take away this common law right, because it was 

 anterior to the rights conferred upon the irriga- 

 tion company, and which existed only after the 

 passage of the statute. So, although the irriga- 

 tion company filed its water lien after the passage 

 of the law, and after Clarke had for years used and 

 exercised his rights, it could not divest him of 

 them. The Supreme Court simply held that a 

 riparian right at common law is a vested right, yet 

 the only remedy it gave Clarke was to sue for 

 damages. He had waited too long to get an in- 

 junction, since this was a public work he was at- 

 tempting to stop the progress of. The outcome of 

 the case, I have no doubt, is regarded by the irri- 

 gation company as a victory. 



" The further question arises whether or not the 

 irrigation company could not have condemned the 

 vested right of Clarke by the right of eminent do- 

 main and bought it. It could, without doubt, if 

 irrigation canals are public improvements. That 

 is the whole question at issue at this time. That 

 is the question we will attempt to settle iii the 

 Alfalfa Irrigation District case in order to make 

 our bonds good, and that is the question which 

 will more or Jess directly be called up for decision 

 in another irrigation case now pending before the 

 Supreme Court, entitled the Paxton & Hirshey 

 Irrigating Company against the Farmers' and Mer- 

 chants' Irrigating Company. The latter case 

 arises more especially under the 1889 and 1891 

 law. 



"Just the moment that question is decided, the 

 Globe Loan and Trust Company and other finan- 

 cial,institutions are willing to buy these irrigation 

 bonds issued by irrigation districts. The Globe 

 Loan and Trust Company, which is a defendant 

 in the Alfalfa district case, has gone into the suit 

 to determine this very issue. 



" One can readily see that such a question was 

 not in issue in the Clarke case, because Clarke had 

 rights in existence before the passage of the 1891 

 law. If the 1895 Jaw abolishes the common law 

 rule that a riparian right is a vested right, that is 

 another question, and affects only those, at the 

 most, whose rights accrue subsequent to the pass- 

 age of the law. However, I do not really think 

 that the decision is of great importance any way, 

 because there are so few mills in this State depend- 

 ing on a water supply, that there is likely to be 



I. A. FORT, OF NORTH PLATTE, NEB. 



PRESIDENT OF THE NEBRASKA IRRIGATION ASSOCIATION. 



little conflict between the. mill owners and the 

 irrigating companies. If, as we contend, irriga- 

 tion is a public improvement, and as we think our 

 Supreme Court will hold, why, then, this matter of 

 damages is a matter capable of adjustment by con- 

 demnation proceedings." 



GREAT SUCCESS IN COLORADO. 



One of the editors of the Manhattan (Kan.) 

 Homestead recently visited the San Luis Valley in 

 Colorado. The following is an extract from an in- 

 teresting account of the trip which appeared in 

 that paper: 



" We passed miles and miles of standing grain 

 for the harvest is about two weeks late. Wheat of 

 a style we never saw before. Tall and sturdy and 

 with full heads. Oats stood in the uncut fields 

 fully as high as an ordinary man's head. We 

 proved the height by having one of the workmen 

 step into the standing grain. It was above his 

 head, and an ordinary man could easily get lost 

 from view in the standing oats. Just think of oat 

 straw six feet long, and these bore well-filled 

 heads of oats that weigh out forty pounds to the 

 bushel." 



THE WRIGHT LAW. 



The Los Angeles Times says: " Farmers in this 

 section were much disappointed at learning that 

 the irrigation cases testing the Wright law, which 

 were to have been tried last month by the Supreme 

 Court, have been postponed until January, 1896. 

 It is to be hoped that there will be no unnecessary 

 delay in this matter. It is most important that 

 some decision should be reached. While the 

 matter is unsettled it is impossible to proceed 



