256 



THE IRRIGATION AGE. 



Recent Legal Decisions on Irri- 

 gation and Related Rights 



PROVISION FOR APPEAL IN CALIFORNIA IRRIGATION 



LAW IS UNCONSTITUTIONAL. 



In the case of Chlnn and others vs. the Superior Court of 

 San Joaquin County, 105 Pacific Reporter, 580, growing out 

 of the board of supervisors of the county granting the appli- 

 cation made for the formation of an irrigation district in said 

 county to be known as "the South San Joaquin Irrigation 

 District," in which certain parties objected to having their 

 lands included, appealing from the action of the board to the 

 superior court, the supreme court of California holds that the 

 superior court was correct in its view that the portion of the 

 irrigation act attempting to authorize an appeal to the super- 

 ior court from the order of the board of supervisors was 

 unconstitutional and void. The explanation of this is that 

 under the state constitution the legislature can provide for 

 an appeal to the superior court from a court only, such as a 

 justice or other inferior court, and not from any other tri- 

 bunal. 



POWER Of COURT TO COMPEL BOARD TO ACT EN RE 



CLAMATION MATTER. 



The supreme court of California says, in Inglin and others 

 vs. Hoppin and others, 105 Pacific Reporter, 582, that this 

 was an application for a writ of mandate or mandamus direct- 

 ing the board of supervisors of Yolo county to set aside a 

 specific order theretofore given by them in the matter of the 

 petition of the plaintiffs to have certain lands situated in 

 reclamation district No. 730 of said Yolo county set off and 

 erected into an Independent district, by which order the peti- 

 tion was denied, and to enter- an order granting the petition. 

 A demurrer to this application was flled, presenting the ques- 

 tion whether, accepting as true the facts stated in the appli- 

 cation, any ground was shown for the issuance of the writ 

 asked. 



While, of course, it is the general rule that mandamus 

 will not lie to control the discretion of a court or officer, 

 meaning by that that it will not lie to force the exercise of 

 discretion in a particular manner, still cases cited here In the 

 court's opinion abundantlv show, it says, that mandamus will 

 lie to correct abuses of discretion, and will lie to force a par- 

 ticular action by the inferior tribunal or officer, when the law 

 clearly establishes the petitioner's right to such action. Such 

 was the case presented here by the pleadings. 



Where a question of fact Is doubtful or disputed, the court 

 will not interfere with the determination of the supervisors; 

 but if it be established before the superior court, as alleged 

 in the petition, that the evidence before the supervisors was 

 uncontradicted, competent, and sufficient to prove satisfac- 

 torily all matters required by the political code, it will become 

 the clear duty of the superior court to issue its mandate to 

 the board of supervisors to accord to the petitioners the right 

 which the statute clearly gives. The hearing will be had 

 upon the same evidence presented to the board of supervisors. 



RIGHTS OF APPROPRIATOR FOR IRRIGATING PURPOSES 

 AS AGAINST KIIIiI. OWNER POLLUTING STREAM 

 RIGHTS OF JUNIOR APPROPRIATOR OF OVER- 

 APPROPRIATED STREAM. 



The supreme court of Colorado says that the case of Hum- 

 phreys Tunnel & Mining Co. vs. Frank, 105 Pacific Reporter, 

 1093, which was really begun by the said Prank, was shown 

 to be like this: A mill owner who had acquired the right 

 to the use of waters artificially developed in the working of 

 mines used it for milling purposes in concentrating ores, and 

 after it had become impregnated with poisonous and noxious 

 substances discharged it. in the form of tailings and slimes, 

 Into the channel of a natural stream, to the injury of a land- 

 owner who had made an appropriation of the waters of the 

 stream for irrigating purposes long before the rights, if any, 

 of the millowner attached. 



The millowner (company) set up a number of defenses, 

 but. In brushing these all aside, and affirmine a judgment in 

 favor of the landowner (Frank), the supreme court declares, 

 upon general principles of law, it was entirely clear that the 

 millowner was liable in damages for this pollution of the 

 stream which injured the landowner. 



It having been found on uncontradicted evidence, even 

 from the admission of the millowner's president, that it was 

 entirely practical and feasible for it. with a comparatively 

 small expenditure and within a few weeks' time, to take care 

 of the tailings and waste material upon its own premises, 

 it should do so, and not cause needless injury to another im- 

 portant industry. 



The fact that the millowner In operating its mill used 

 waters which were not .a part of the natural flow of the streim 

 did not give it the absolute right to discharge into that stream 

 the waste water mixed with hurtful slimes, or absolve it 

 from liability for resulting injuries to third persons who had 

 lawfully acquired prior rights to use the waters thereof for 

 any beneficial purpose. 



It was contended that the millowner, In operating its 

 mill, was hut the agent of the mineowners whose ores its 

 treated under contract, wherefore they, and not it, should 

 have been sued, but it could not escape liability, if Its own 

 act contributed to the landowner's injury, even if others had 

 participated In the wrong. 



Another objection to the landowner's recovery of a judg- 

 ment was that the natural waters of the stream were appro- 

 priated up to its full capacity, during the ordinary flow, by 

 other appropriators whose rights attached before his ap- 

 propriation was made, and as the prior appropriations ex- 

 hausted the entire ordinary flow, there was no water left in 

 the stream with which he could irrigate his lands; therefore 

 he could not have sustained any damage as the result of the 

 millowner's acts, because he had no right that was thereby 

 infringed. This was a fallacious contention. The landowner 

 acquired valid rights as the result of his direct appropriation 

 from the stream, and to the overflow of the stream for his 

 meadow lands, and these rights were vested before the mill- 

 owner began the construction or operation of its mill. His 

 rights were, of course, paramount to any rights the mill- 

 owner had in the waters of the stream. His rights were 

 subject only to the rights acquired by prior appropriators of 

 the water for some useful purpose, and his right, as well as 

 theirs, as against the millowner, was to have the natural 

 waters and all accretions come down the natural channel 

 undiminished in quality as well as in quantity. 



Though other appropriations, to the full capacity of the 

 stream during its ordinary flow, were made before this land- 

 owner's rights accrued, this did not prevent him from build- 

 ing a ditch and diverting and using its waters whenever his 

 seniors did not need it. Floods often occur, and the natural 

 flow of the stream is thus augmented. No appropriator uses 

 water all the time. It is well known that many streams of 

 this state are overappropriated; yet appropriators whose rights 

 accrue after the ordinary flow is fully appropriated have, 

 nevertheless, acquired valuable rights, and often enjoy the 

 use of water for their lands, which rights the law protects 

 against trespasses of others. When the demands of the senior 

 upon the stream cease the right of the junior attach, and, as 

 against a wrongdoer like the millowner, the junior is entitled 

 to protect the stream from pollution, the same as if he were 

 the senior appropriator. If the acts of the millowner inter- 

 fered with such rights of this junior landowner, as they did, 

 it must be held responsible for the resulting injury. 



LAND NOT NECESSARILY NONIRRIGABLE CONCLU- 

 SIVENESS OF DETERMINATION OF COUNTY BOARD 

 PROCEDURE FOR DETACHING LAND FROM DIS- 

 TRICT. 



The supreme court of Nebraska says that the case of 

 Sowerwine and others vs. Central Irrigation District, 124 

 Northwestern Reporter, 118. was brought for the purpose of 

 having certain lands detached from the irrigation district. 

 It was alleged that the lands in question were low, wet, 

 swamp, and totally unfit for irrigation. But the court does 

 not think that a finding that during three months of the year 

 a slough running through the land was practically full of 

 water, and a part of the land involved was more or less wet 

 and spongy, and at different places had standing water holes 

 of greater or less dimensions, while during the low-water 

 period extending through the other nine months of the year 

 the slough was practically dry and the land involved was 

 dry, could be held to be equivalent to a finding that the lands 

 were "totally unfit for irrigation." 



Such a finding as first stated clearly showed that the case 

 came within that class which is for the determination of the 

 county board. The court could not say, as a matter of law, 

 that the land was nonirrigable. 



In order to defeat the jurisdiction of the county board. It 

 must be clearly shown, and in like manner found by the court, 

 that the lands embraced within the district are in fact non- 

 irrigable. If, under the facts as found b-" the court, there 

 is any doubt on that subject, such doubt must be resolved 

 in favor of the jurisdiction of the board, and the parties left 

 to the remedy provided by statute. This being, therefore, 

 a case for the consideration of the board, then its order pst" 

 lishing and defining the boundaries of the district was conclu- 

 sive, at least in this collateral proceeding, on the question 

 whether the lands included would be benefited by irrigation. 



After an irrigation district has been duly organized, the 

 statutory procedure prescribed for detaching lands, other than 

 those which cannot from some natural cause be irrigated, Is 

 exclusive. 



Where the owner of land proceeds in a suit in equity to 

 have the same detached from an irrigation district. In order 

 to defeat the jurisdiction of the county board it must be 

 clearly shown, and in like manner found by the court, as 

 before stated, that the land embraced within the district Is 

 in fact such that, from some natural cause. It is nonirrigable, 

 or is expressly exempted by statute from the operation of 

 the law providing for the organization of irrigation districts, 

 and the taxing of lands within the boundary of such district 

 for irrigation purposes. 

 PLIGHT or PURCHASER UNDER WARRANTY DEED OF 



"BOUGHT WATER" WHICH COMPANY REFUSES TO 



FURNISH. 



A man named Starbird gave a deed with full covenants 

 of warranty to a Mrs. Jacobs for 20 acres of land, with one 

 share of stock in an extension ditch and reservoir company, 

 and also TA inches of "bought water" from said ditch. The 

 term "bought water," Is was agreed, was a right in Starbird 

 to have, during each irrigating season, from the ditch com- 

 pany, upon the payment of a fixed annual stipend therefor, 

 the use of 7% inches of water for the partial irrigation of 

 the land sold. 



Subsequently, when demand was made on the company 

 for delivery of the "bought water" for the season, and a 

 tender of the agreed annual rental therefor, the company 

 declined to deliver the same on the ground that Starbird had 

 no such right as he claimed, or any right to have and receive 

 this water. Thereupon Mrs. Jacobs brought an action against 



(Continued on page 275.) 



