200 



THE IRRIGATION AGE. 



mechanical purposes, and provided that 

 said water should after such use be re- 

 turned by appellants to the natural channel 

 of the river above the mouth of appellees 

 ditch. This requirement was, of course, 

 in strict conformity with the provisions of 

 the common law relative to riparian rights, 

 and upheld the doctrine that water after 

 being used by any person to the extent 

 permitted by common law must be re- 

 turned to its original channel not per- 

 ceptibly diminished in quantity and un- 

 deteriorated in quality. 



The Supreme Court held that the com- 

 mon law had no application whatever to 

 the use of water in Arizona. And in the 

 case at Bar it held that an injunction 

 would not lie at the instance of a prior 

 appropriator of the water of a river through 

 an irrigation ditch to restrain a subsequent 

 appropriator further up a stream from 

 diverting water from the river and after 

 using it returning it into complainant 1 s 

 ditch, where it appears that the water is 

 turned into such ditch above the point 

 where it was to be used by complainant 

 and where the complainant had the same 

 quantity as he would have had if de- 

 fendant returned the part used by him to 

 the river. 



Judge Bethune, who rendered the 

 opinion of the Supreme Court, in the 

 course of his remarks said: " It seems to 

 be admitted that there could be no ob- 

 jection to the use by a subsequent ap- 

 propriator of the waters of a stream 

 already appropriated, should the water be 

 returned uninjured to the channel above 

 the point of diversion of the prior appro- 

 priation. But, as we have seen, this rule 

 springs from the common law, which, as 

 already stated, has no application in 

 regulating our water rights. We cannot 

 perceive any reason why, under our 

 system of the use of water, a person en- 

 titled to the use of a certain quantity of it 

 should receive it at oae place, instead of 

 another, provided his rights are in no way 

 affected or curtailed. The appellees 

 claim a certain quantity, of water for the 

 irrigation of their lands and to run Hay- 

 den's Mill. If they get it, why should 

 the manner in which they get it matter to 

 them, especially when one may add useless 

 burdens upon the exercise of absolute 

 rights of the appellants, and either way 

 would equally subserve the rights of ap- 

 pellees ? 



"In our view of the case, no rights of 

 appellees are invaded by reason of the 

 delivery of the water claimed by them 

 into their ditch above the point of 

 use by them. The evidence fails to 

 show that any damage has accrued, or 

 will accrue, to them by having their 

 water delivered to them at the point to 

 which appellants were delivering it at the 

 commencement of this action, or that their 

 remedies against appellants for a failure 

 to so deliver the quantity of water, to 

 which appellees are entitled, or for any 

 damages otherwise suffered, would be in 

 any manner different from those appellees 

 would have should appellants be required 

 to deliver the proper quantity back into 

 the channel of the. riv^r. We are of 

 the opinion that the appellants were 

 exercising an absolute right in the use of 

 the water, of course subject to any penalty 

 they may incur by the use of such right. 

 We therefore do not think this is a case 

 for an injunction, but that the appellees 

 have ample modes of redress at law for 

 any damages which may be occasioned by 

 an improper action of appellants in the 

 use of the water, or in delivering it back 

 to appellees. The judgment of the lower 

 court is reversed, and the cause remanded 

 for a new trial." 



The case of appellees was simply 

 another example of the selfishness of man. 

 Not injured in any manner themselves they 

 wished to prevent Mr. Chandler and his 

 associates from using the water and thus 

 preventing the greatest good to be done 

 to the greatest number, and the further 

 development of the country. 



But the district judge who granted the 

 injunction, what shall I say of him ? His 

 audacity is only equaled by the district 

 judge of Idaho who rendered that remark- 

 able decision upon the theory of "equitable 

 division " of waters in the case of Hillman 

 vs. Hardwick and others (reported in the 

 28 Pac. Rep., 438). In that case the 

 evidence was that there were about eighty 

 to 100 inches flowing in a certain stream, 

 and the plaintiff claimed by virtue of a 

 prior appropriation 125 inches of water. 

 But in spite of the fact that his claim to 

 this amount and his actual application of 

 all of the water for the purpose of irriga- 

 tion were both proven, the trial court ren- 

 dered a judgment giving the defendants 

 permission to divert something like 800 

 inches over and above the amount claimed 



