RECENT DECISIONS UPON THE SUBJECT OF 



WATER RIGHTS. 



BY CLESSON S. KINNEY. 



IN a recent case decided by the Court of 

 Appeals of Colorado, the court held 

 that where deeds of water rights provide 

 that, when the grantor (an irrigation com- 

 pany) sells a number of water rights equal 

 to its estimated canal capacity, and two- 

 thirds of those rights are paid for, the title 

 to the canal shall pass to the grantees, and 

 the company received payment for more 

 than two-thirds of all the rights sold, if it 

 sold rights in excess of the capacity of the 

 canal, so that the consumers could not 

 receive the quantities of water purchased, 

 the grantees are entitled to have the title 

 to the canal conveyed to them. And the 

 court further held that the fact that the 

 company's reservoirs might increase the 

 capacity of the canal to furnish water did 

 not excuse the company from executing its 

 contracts in such deeds. 



(La Junta & Lamar Canal Co. v. Hess, 

 42 Pac. Rep. 50.) 



In another case the same Colorado court 

 held that a deed containing no reference 

 to a ditch which supplies water to the 

 land conveys no interest in the ditch. 



(Child et al v. Whitman et al, 42 Pac. 

 Rep. 601). 



In the case last above mentioned the 

 appellees offered no evidence of any trans- 

 fer or deed conveying the interest other 

 than a deed to the land on which the 

 water had been used. The conveyance 

 contained no reference to the ditch, nor 

 were there any apt words of alienation in 

 it. Mr. Justice Bissell in rendering the 

 opinion said: "It is well established that 

 an interest in a ditch is property, which 

 may be transferred or conveyed subject to 

 the same limitations and restrictions which 

 attend a conveyance of real property. A 

 conveyance of land without mention of a 

 water right cannot be taken to transfer an 

 interest in a ditch, although the water car- 

 ried may have been used upon the land. 

 In this State it is regarded as an independ- 

 ent right, which may be the right of sub- 

 ject of sale and conveyance, but a technical 

 transfer is essential to vest in the trans- 

 feree a title to the water." 



APPKOPKIATION OF WATER-FOKFEITUBE BY NON- 

 USER. 



The Supreme Court of California held, 

 in a case decided November 19, 3895, that 

 under the Civil -Code of California, 1411, 

 declaring that an appropriation of water 

 must be for some useful or beneficial pur- 

 pose, and that when the appropriator 

 ceases to use it for such a purpose the 

 right ceases, not only to the water rights, 

 but also to the rights of way for ditches, 

 given by the Eev. Stat. of the TJ. S. 

 2339, 2340, over land which at the time of 

 the appropriation belonged to the public, 

 are lost by non-user for five years, the 

 period for obtaining the prescriptive title, 

 or losing the prescriptive right by non- 

 user. 



(Smith et al r. Hawkins, 42 Pac. Rep. 

 453.) 



This seems to the writer to be a correct 

 construction of the sections of the statute. 

 But it seems as though the statute was ex- 

 ceedingly liberal upon this subject. In 

 this western ' country where water is the 

 very life of agricultural development, five 

 years seems to be a long period of time to 

 wait before a water right, which the prior 

 owner has to all intents and purposes 

 abandoned, can be declared forfeited by 

 his non-user of the same. 



In the opinion the court said : " In this 

 State five years is the period fixed by law 

 for the ripening of an adverse possession 

 into a prescriptive title. Five years is 

 also the period declared by law after 

 which a prescriptive right depending upon 

 enjoyment is lost for non-user; and, for 

 analogous reasons, we consider it to be a 

 just and proper measure of time for the 

 forfeiture of an appropriator' s rights fora 

 failure to use the water for a beneficial 

 purpose. Considering the necessity of 

 water in the industrial affairs of this State, 

 it would be a most mischievous perpetuity 

 which would allow one who has made an 

 appropriation of a stream to retain indefi- 

 nitely, as against other appropriators, a 

 right to the water therein, while failing to 

 apply the same to some useful or bene- 



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