1G8 



THE IRRIGATION AGE. 



Supreme Court Decisions 



Irrigation Cases 



RIGHT TO STORE WATER. 



The right of a riparian owner to the water of a stream 

 for irrigation purposes is not confined to a use of the water 

 as it flows by, and while it is so flowing, but he may store 

 the water in reservoirs for future use after it has ceased to 

 flow so far as is consistent with the rights of the lower owners, 

 but such use of the water by one owner as will prevent a 

 lower owner from storing water for irrigation is not reason- 

 able. Stacy v. Delery. Court of Civil Appeals of Texas. 122 

 Southwestern 300. 



USING STEAM AS CONDUIT. 



Persons who use a stream, the waters of which have 

 been appropriated, as a conduit for other waters, can take 

 out only what they put in, making allowance for natural 

 waste and evaporation and for cutting off or drying up any 

 original tributaries of the stream. Miller v. Wheeler. Su- 

 preme Court of Washington. 103 Pacific 641. 

 DIVERSION. 



GOVERNMENT IRRIGATION WORKS. 



The fact that an irrigation scheme projected by the 

 government under Irrigation Act June 17, 1902, c. 1093, I 1, 

 32 Stat. 388 i(U. S. Comp. St. Supp. 1907, p. 511), contem- 

 plates the irrigation of private lands, as well as a large tract 

 of government land, and that the owners of the private lands 

 are assisting and co-operating therein, does not render the 

 project illegal, nor deprive the Secretary of the Interior of 

 the power given by the act to condemn lands necessary to 

 carry it out. United States v. Burley. U. S. Circuit Court, 

 Idaho Central District. 172 Federal 615. 



LIABILITY FOR FLOWAGE. 



An irrigation company which negligently constructed the 

 intakes from the Colorado river into its canal without head- 

 gates or other means of controlling the flow, by reason of 

 which in a time of flood the water flowed through in such 

 volume as to wash away the river bank and overflow the 

 lands of others, is not relieved from liability therefor by the 

 fact that the flood was extraordinary. The Salton Sea Cases. 

 California Development Co. v. New Liverpool Salt Co. U. S. 

 Circuit Court of Appeals. 172 Federal 792. 



CONTRACT TO SELL LAND. 



Plaintiff contracted to sell to defendants a tract of land, 

 with water therefor to a certain amount, the price to be part 

 cash and part deferred payments. The contract also pro- 

 vided that plaintiff should furnish the water between certain 

 dates of each year. Held, that the provision as to the time 

 for furnishing water was an independent continuing covenant, 

 upon which the promise of defendants to pay did not depend, 

 and when plaintiff had delivered possession of the land it was 

 entitled to payments as agreed. Spokane Canal Co. v. Coff- 

 man. Supreme Court of Washington. 103 Pacific 1106. 



DEED TO ENTRYMAN. 



A deed executed by an entryman before he is entitled to 

 a receiver's final receipt and purporting to vest the grantee 

 with a right of way over, and the privilege of constructing 

 and maintaining a reservoir upon the lands of the entryman. 

 will not vest the grantee with any right against a subsequent 

 entry of the land under the acts of Congress, unless such 

 grantee, before the last entrv. shall have constructed said 

 improvements, and was using them under such circumstances 

 as to entitle him to protection under the laws of this state. 

 Rasmussen v. Blust. Supreme Court of Nebraska. 122 North- 

 western 862. 



ACQUISITION OF RIGHTS IN PUBLIC LANDS. 



One who has constructed upon the vacant public lands 

 of the United States a system of reservoirs and ditches for 

 the distribution of water anpropriated by him for irrigation 

 purposes, and has secured the approval _ of his plan and 

 appropriation by the state board of irrigation, and was using 

 his .said reservoirs and ditches for the storage and distribu- 



tion of such waters before said lands are entered, has a 

 vested and accrued right within the meaning of sections \i:'M 

 and 2340 of the Revised Statutes of the United States (U. S. 

 Comp. St. 1901, p. 1437). Rasmussen v. Blust. Supreme 

 Court of Nebraska. 122 Northwestern SG2. 



APPROPRIATIONS ABANDONMENT. 



The overflow or waste, after use on defendants' land, of 

 waters which they appropriated and brought there, was n.;; 

 abandoned, so as to be subject to the use of others, unless 

 there was a concurrence of intent to abandon and an actual 

 relinquishment. Miller v. Wheeler. Supreme Court of Wash- 

 ington. 103 Pacific 641. 



"ABANDONMENT." 



The mere temporary nonuse of water during one ytar 

 subsequent to its appropriation, without intent to abandon the 

 appropriator's right is insufficient to establish an "abandon- 

 ment." Land v. Johnston. Supreme Court of California. 

 104 Pacific 449. 



CONTRACTS FOR SALE OF WATER. 



The owner of certain lands and water rights constructed 

 a canal to carry the waters from his land to lower lands, 

 and entered into contracts with the owners of such lands by 

 which he sold and conveyed to each a certain quantity of 

 water, measured at the canal. The contracts provided that 

 "it is understood and agreed * * * that water as above 

 stipulated has been actually delivered to the vendee, and that 

 said delivery and this conveyance are accepted by vendee in 

 full satisfaction of all obligations of vendor to vendee." All 

 of them also provided, in effect, that "vendee hereby covenants 

 and agrees to bear his proportionate share of taxes and all 

 expenses of maintaining and operating said canal system and 

 all water sources and water rights and structures that may 

 . be connected therewith." Held, that such contracts must be 

 construed to require the vendor to furnish continuously the 

 stipulated quantity of water, and the covenants of the vendees 

 to bear a proportionate share of the expenses related to the 

 expenses of delivery only, and did not bind them to contribute 

 to the expense of producing the water, or procuring additional 

 sources of supply, when by reason of drouth the original sup- 

 ply became inadequate to fill the contracts. Riverside Trust 

 Co., Ltd., v. East Riverside Water Co. U. S. Circuit Court 

 of Appeals. 173 Federal 241. 



FAILURE TO FILE MAP. 



The failure of the irrigator to file a map in the land of- 

 fice and to secure the approval of the secretary of the interior 

 in accordance with the act of Congress approved March 3, 

 1891 (Act March 3, 1891, c. 561, 18, 26 Stat. 1101 [U. S. 

 Comp. St. 1901, p. 1570]), entitled "An act to repeal timber- 

 culture laws, and for other purposes," and the acts supple- 

 mentary thereto, does not destroy the privileges protected 

 by sections 2339, 2340, Rev. St. U. S. (U. S. Comp. St. 1901, 

 p. 1437.) Rasmussen v. Blust. Supreme Court of Nebraska. 

 122 Northwestern 862. 



CONDEMNATION BY UNITED STATES. 



In a proceeding by the United States to condemn land for 

 reservoir purposes under Irrigation Act June 17, 1902, c. 

 1093, 1, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 511), 

 whether a more feasible plan of irrigation than the one 

 adopted might be devised, or some other site selected for the 

 reservoir, is immaterial ; the determination of the proper gov- 

 ernment authorities being conclusive. United States v. Bur- 

 ley. U. S. Circuit Court, Idaho, Central District. 172 Fed- 

 eral 615. 



OVERFLOW THROUGH A BREACH. 



Defendant by the negligent construction of the works 

 by which it diverted water from the Colorado river into its 

 irrigation canal caused an overflow through a breach in the 

 bank, creating a lake in the Salton Basin, which covered and 

 practically destroyed the value of complainant's property sit- 

 uated in the basin. In a suit by complainant it vras awarded 

 damages for the injury, and also an injunction restraining 

 defendant from diverting water from the river in excess of 

 the substantial needs of the people dependant on its canal, 

 from permitting any waste water to flow on or over complain- 

 ant's land, or into the lake in such amount as would "sub- 

 Continued on page 181.) 



