12S 



THE IRRIGATION AGE. 



not constitute "rules'" of the company, 

 such as would entitle these parties to any 

 water rights with the land. 



Giddings v. Land & Water Co., 41 Pa- 

 cific Reporter, 788. 



CONTRACTOR'S LIEN ON IRRIGATION DITCH. 



The Supreme Court of New Mexico holds 

 that, where a contract provides that pay- 

 ment shall be made for the work on final 

 estimate and certificate of an engineer ap- 

 proving the work, and a showing that the 

 work is free and clear of all liens, and after 

 the final estimate is made, and the certifi- 

 cate is procured, the contractor being re- 

 fused, tiles his lien, the fact that subcon- 

 tractors subsequently file liens for work 

 will not defeat the contractor's lien. 



Ford v. Springer Land Association, 41 

 Pacific Reporter, 541. 



DAMAGES TO RIPARIAN OWNER. 



Where the water of a stream running 

 through a farm is taken by a village for its 

 water- works, the owner is entitled, not only 

 to damages from being deprived of the 

 water for farm purposes but, where he has 

 laid out part of the farm in village lots for 

 sale, he is entitled to damages from being 

 deprived of the opportunity to sell water 

 rights to purchasers of the lots. 



Bridgeman v. Village of Hardwick (Su- 

 preme Court of Vermont), 32 At. Rep., 

 502. 



RIPARIAN RIGHTS. 



The right of a riparian proprietor in or 

 to the waters of a stream flowing through 

 or along his land is not the right of own- 

 ership in or to those waters, but is a usu- 

 fructuary right, a right, among others, to 

 make a reasonable use of a reasonable 

 quantity for irrigation, returning the sur- 

 plus to the natural channel, that it may 

 flow on in the accustomed mode to lands 

 below. If his needs do not prompt him to 

 make use of them, he still has the right to 

 have them flow onto and along and over 

 his land in their usual way, excepting as 

 the accustomed flow may be changed by 

 the act of God, or as the amount of it may 

 be decreased by the reasonable use of up- 

 per owners and riparian proprietors. But 

 none of his rights to put the water to legit- 

 imate uses is lost by mere non-user. His 

 rights are not easements, nor appurte- 

 nances to his holding. They are not the 

 rights acquired by appropriation or by 



prescriptive use. They are attached to 

 the soil, and pass with it, and may be lost 

 only by grant, condemnation, or prescrip- 

 tion. With any use or diversion of the 

 water, after it has passed his land, the up- 

 per riparian proprietor, having no owner- 

 ship in, and no longer any rights to it, 

 would have no concern. None of his 

 rights would or could be impaired thereby, 

 and without such an impairment he would 

 be without injury and, consequently, with- 

 out cause for complaint or redress. His 

 right extends no farther than the boundary 

 of his own estate. He cannot complain of 

 the mere facts of the diversion of the water- 

 course either above or below him, if, with- 

 in the limits of his property, it is allowed 

 to follow its accustomed channel. 



Hargrave v. Cook (Supreme Court of 

 California), 41 Pac. Rep., 18. 



The Supreme Court of California holds 

 that a lower riparian proprietor has no 

 right, independent of contract, to go on 

 the land of an upper proprietor to return 

 the stream to its original channel, when it 

 has been diverted therefrom by natural 

 causes. 



Wholey v. Caldwell, 41 Pac. Rep., 31. 



ORAL PERMISSION A MERE LICENSE. 



An oral permission given to divert and 

 use water from a stream is a mere license, 

 which is revocable, and does not vest any 

 estate in the land. There is a clear dis- 

 tinction between the effect of a license to 

 enter lands, uncoupled with an interest, 

 and a grant. A grant passes some estate 

 of greater or less degree, must be in writ- 

 ing, and is irrevocable unless it contains 

 words of revocation; whereas a license is 

 a personal privilege, can be conferred by 

 parole or in writing, conveys no estate or 

 interest, and is revocable at the pleasure of 

 the party making it. There are also other 

 incidents attaching to a license. It is an 

 authority to do a lawful act which, without 

 it, would be unlawful, and while it remains 

 unrevoked is a justification for the acts 

 which it authorizes to be done. It ceases 

 with the death of either party, and cannot 

 be transferred or alienated by the licensee, 

 because it is a personal matter, and is lim- 

 ited to the original parties to it. A sale 

 of the land by the owner instantly works 

 its revocation, and in no sense is it prop- 

 erty descendible to heirs. 



Jensen v. Hunter (Supreme Court of 

 California), 41 Pac. Rep., 14. 



