SOME RECENT COURT DECISIONS. 



ADVERSE POSSESSION ABANDONMENT. 

 BY CLESSON S. KINNEY, OF THE SALT LAKE CITY BAR. 



IN the case of Smith et al vs. Hope Min- 

 ing Company, the Supreme Court of 

 Montana held that the defendant's use was 

 not adverse to plaintiffs' right, where in a 

 compromise settlement as to water rights 

 between two mining companies it was 

 agreed that the defendant had prior rights 

 to fifteen inches of water, and that it should 

 take the same through plaintiffs' ditch, 

 and that it should also have the use of a 

 further amount of water which was over 

 and above the water necessary for plaintiffs' 

 mill. The evidence disclosed the fact that 

 plaintiffs closed their mill in 1883, and 

 from that time to 1893 used no water; de- 

 fendant, as it might under the contract, 

 during this period, using all the water con- 

 veyed into the ditch. Also the defendant 

 gave no notice by word or deed that it 

 claimed otherwise than under the contract. 

 And also in the same case, when plaint- 

 iffs' mill was shut down, a man was em- 

 ployed to drain all the pipes and oil the 

 machinery, and during the whole period of 

 non-use some one had charge of the prop- 

 erty, a watchman being on the premises 

 and caring for them most of the time. 

 The water was not used simply because 

 the machinery of the mill was not in mo- 

 tion. The count held that there was no in- 

 tention to abandon the mill, and hence none 

 to abandon the appurtenant water right. 



COKPORATIONS. 



In the case of the Consolidated Canal 

 Company vs. Peters, decided by the Su- 

 preme Court of Arizona, 46 Pac. Rep. , 74, 

 it was held that a contract between a canal 

 company and the shareholders in an unin- 



corporated joint stock association, whereby 

 the former party of the first part agrees to 

 furnish water to the "respective parties" 

 of the second part, and the latter agrees to 

 rent their "respective" shares in the asso- 

 ciation to said first party in a several con- 

 tract, and either of the second parties may 

 maintain suit for damages occuring to him 

 thereunder, without joining the others. 



Also in the same case, where the Utah 

 Canal Company rented their shares to de- 

 fendant, a corporation, the latter agreeing 

 to deliver water to said parties " at and on 

 the basis rate of not less than three shares 

 for the necessities of a quarter section, said 

 water being in the river. * * * It 

 being understood that, in case of low wa- 

 ter, defendant is to deliver that amount of 

 water that the Utah canal could or would 

 deliver if they were in full control." A 

 complaint by one of the shareholders who 

 entered into said contract alleged that de- 

 fendant refused to deliver water in suffi- 

 cient quantities to irrigate the crops when 

 there was water flowing in the river suffi- 

 cient for such purpose, and, at periods of 

 low water, had refused to deliver to plain- 

 tiff the amount of water that the Utah Ca- 

 nal Company would or could deliver if it 

 were in control. However, the complaint 

 did not allege that plaintiff ever requested 

 defendant to deliver water to him, and did 

 not state how much was necessary nor the 

 the quantity actually delivered, and there 

 was no averment as to the amount that 

 could or would have been furnished by the 

 Utah Canal Company. The court held 

 that the complaint did not state a cause of 

 action. 



151 



