458 



THE IRRIGATION AGE. 



Supreme Court Decisions 



Irrigation Cases 



ADVERSE USER OF DITCH RIGHT. 



Adverse user of a ditch right of way over land for one 

 year would not be sufficient to establish an easement therein. 

 Oliver v. Burnett. Court of Appeal, First District, Cali- 

 fornia. 102 Pacific 223. 



CONTROL OF WATER BY STATE. 



The constitution of this state reserves to the state the 

 right to regulate and control the manner and means of ap- 

 propriating the unappropriated waters of the state. Speer v. 

 Stephenson, State Engineer. Supreme Court of Idaho. 102 

 Pacific 365. 



DUTY OF CANAL COMPANY. 



It is the duty of a canal company to turn the water for 

 the consumer out of it's main canal of lateral at such place 

 as will be most convenient for the consumer, and will cause 

 least waste by seepage and evaporation. Niday v. Barker. 

 Supreme Court of Idaho. 101 Pacific 254. 



PRIORITIES. 



The order in which the names of the claimants were re- 

 cited in the decree did not denote a determination of pri- 

 ority among them, especially as Mills' Ann. St. Sec. 2403, 

 expressly allows the statement of claim required to be made 

 by any one of the owners. Park v. Park. Supreme Court 

 of Colorado. 101 Pacific 403. 



LANDLORD'S DUTY TO FURNISH WATER. 



Where a lease provided that the landlord should furnish 

 water to irrigate the tenant's crops at a price to be hereafter 

 agreed upon, and the price was agreed on for the years 1904 

 and 1905, the landlord's obligation to furnish water during 

 those years was complete. Dunbar v. Montgomery. Court 

 of Civil Appeals of Texas. 119 Southwestern 907. 



APPROPRIATION OF WATER. 



At such times as an appropriator is not using the water 

 under his appropriation, and is not applying the water to a 

 beneficial use, such water must be considered and treated as 

 unappropriated public water of the state, and for such period 

 of time is subject to appropriation and use by others. 

 Hutchinson v. Watson Slough Ditch Co., Ltd. Supreme Court 

 of Idaho, 101 Pacific, 1059. 



COSTS OF SURVEY BY STATE ENGINEER. 



The expenses incurred in making surveys, maps, and plats 

 by the state engineer under the irrigation law and in obedience 

 to an order of the trial court is a proper expense to be taxed 

 up against the appropriators and claimants of water who are 

 litigants in the case, and this may be done even though the 

 maps, plats, and report be not introduced in evidence Farm- 

 ers' Co-operative Ditch Co. v. Riverside Irrigating Dist., Ltd., 

 Supreme Court of Idaho. 102 Pacific 481. 



ACTION OF STATE ENGINEER. 



The action of the state engineer in deciding to cancel or 

 in refusing to cancel a permit is not conclusive upon the 

 parties, and may be reviewed in the district court upon appeal 

 or may be questioned in a direct proceeding in the district 

 court, and the court in considering such matter is in no way 

 controlled or concluded by the action of the state engineer. 

 Speer v. Stephenson, State Engineer. Supreme Court of 

 Idaho. 102 Pacific 365. 



OLD AND NEW WATER. 



Under the apportionment of benefits, by reason of the 

 purchase of said canal system, to the lands under it, the bene- 

 fits were classified under two heads : One of "old water," 

 and the other of "new water." The term "old water" refers 

 to existing water rights at the time of the purchase of the 

 canal, and "new water" refers to rights yet to be acquired by 

 the enlargement of the canal, and no benefits under the head 

 of "old water" were apportioned to respondent's land, and it 

 appears that the canal has not been enlarged so as to acquire 

 any "new water" ; and, until such enlargement occurs, or it is 



made to appear that the canal company has water sufficient 

 to supply the demands of respondent without interfering with 

 the rights of prior users, he can not acquire a perpetual 

 water right by the temporary use of water from said canal 

 at times when prior users are not demanding the full amount 

 of water to which they are entitled. Gerber v. Napa & 

 Meridian Irr. Dist. Supreme Court of Idaho. 100 Pacific 80. 



CONTRACT FOR USE OF WATER. 



A contract for the use of water made for a valuable 

 consideration organized for the purpose of supplying water for 

 irrigating land that did not when made contravene the laws 

 or policy of the state may, as between the parties or their 

 successors in interest, be enforced, subject to all reasonable 

 regulations, provided that the rights of other water users 

 are not thereby unlawfully curtailed. Ctague v. Tri-State 

 Land Co. Supreme Court of Nebraska. 121 Northwestern 

 570. 



TITLE TO WATER BY USER. 



If the owner, by his agreement with his brother, or by 

 making his statement of claim for the later water only, waived 

 his right to any earlier water, the agreement with his brother 

 that he was to have half of all water secured by both, fol- 

 lowed by his open and notorious possession and use of it 

 for over thirteen years thereafter for irrigation of his lands, 

 vested the title therein in him, and caused it to go to his 

 grantees with his land ; oral agreements concerning priorities 

 and title to water rights followed by change of possession and 

 application of the water for irrigation by a claimant being 

 valid. Park v. Park. Supreme Court of Colorado. 101 

 Pacific 403. 



USE OF STREAM FOR MECHANICAL PURPOSES. 



The owner of riparian land has the right to use the 

 water in its natural course on the land for generating elec- 

 tric power, though the power is carried away and used on non- 

 riparian land of others ; and he has also the right, if it is 

 more convenient and effective so to do, to turn the water 

 out of its natural channel at the upper ends of his posses- 

 sions, carry it in an artificial channel over the land, use it 

 for generating such power, and turn it all back into the stream 

 within his lands, provided such interference with natural 

 conditions does not unduly injure those who have rights in 

 the water, including the underflow. Mentone Irrigation Co. 

 v. Redlands Electric Light & Power Co. Supreme Court of 

 California. 100 Pacific 1082. 



DITCH RIGHT OF WAY ACROSS HOMESTEAD. 



Under Rev. St. TJ. S. sees. 2339, 2340 (U. S. Comp. St. 

 1901, p. 1437), providing that when, by priority of possession, 

 rights to the use of water for agricultural purposes have 

 vested, the owner thereof shall be protected, and confirming 

 the right of way for the construction of ditches, etc., and pro- 

 viding that homesteads allowed shall be subject to any vested 

 and accrued water rights to ditches in connection therewith, 

 etc., one who completes a ditch across public lands for irriga- 

 tion purposes, and who is in possession thereof at the time 

 another makes his homestead entry on the lands, acquires a 

 right of way across the lands, and the homesteader takes his 

 homestead subject to such right of way. Cottonwood Ditch 

 Co. v. Thorn. Supreme Court of Montana. 100 Pacific 825. 



GRANT OF DESERT LANDS TO STATE FOR RECLAMATION. 



Act Aug. 18, 1894, c. 301, Sec. 4, 28 Stat. 422, as amended 

 by Act June 11, 1896, Sec. 1, c. 420, 29 Stat. 413, and Act March 

 3, 1901, c. 853, Sec. 3, 31 Stat. 11.88 (U. S. Comp. St. 1901, 

 pp. 1554, 1556, 1557), for the purpose of aiding the public 

 land states in the reclamation of desert lands therein and the 

 sale thereof to actual settlers in tracts not exceeding 160 

 acres each, authorized the Secretary of the Interior, upon 

 proper application of a state, and the filing of a map and ap- 

 proved plan of irrigation, to contract with it to donate and 

 patent to such state not exceeding 1,000,000 acres as the state 

 shall cause the same to be irrigated, reclaimed, and occu- 

 pied. The state is authorized to enter into contracts to cause 

 the lands to be irrigated and induce their settlement, to 

 provide for a lien thereon for the actual cost and necessary 

 expense of irrigation, but is required to hold any surplus 

 money derived from their sale, in excess of the cost of re- 

 clamation, as a trust fund, and apply the same to the re- 

 clamation of other desert lands therein. Rev. St. Wyo. 1899, 

 (Continued on page 466.) 



