THE IEEIQATION AGE. 



Recent Legal Decisions on Irri- 

 gation and Related Rights 



CONSTITUTIONALLY LIMITED AND ASSURED WATER 

 RIGHTS POSITION OP AFPROPRIATOR MEASURE 

 OP BIGHTS VALIDITY OP CONTRACT, PREFER- 

 ENTIAL AND PERMANENT BIGHTS. 



The supreme court of California says, in Leavitt vs 

 Lassen Irrigation Co., 106 Pacific Reporter, 404, that, for the 

 plaintiff, the most favorable view which could be taken of the 

 evidence was that he made an appropriation of waters for the 

 public use of sale, rental, and distribution under the constitu- 

 tion of 1879; that by means of the same canal and ditches he 

 made a private appropriation of waters for use upon his indi- 

 vidual land; and that when he came to sell his irrigating 

 system he withheld from the sale the waters so privately 

 appropriated. It could not be said that there was anything 

 illegal in these acts. 



But, treating Leavitt's appropriation as being wholly and 

 entirely for public use, he, the owner of the system, was but 

 an instrumentality for the distribution of the waters which 

 he gathered to such members of the public as might apply 

 for them and pay to him the legal charge for the service that 

 he rendered. As the agent of such a public use, he had no 

 power whatsoever to reserve to himself for his private pur- 

 poses any part of this water. If he could reserve a part, he 

 could reserve all, and thus, by his ipse dixit (he himself has 

 said), convert a public use into private ownership, or, if he 

 could reserve a part for himself, he could with equal author- 

 ity give away parts of the supply to others, and by this 

 method destroy what the constitution itself has declared shall 

 remain forever a public use. 



Therefore the only tenable ground upon which he could 

 stand would be that, with his appropriation for public use, 

 he became a private appropriator of water upon his ranch. 

 If this was so, then his rights to water would be measured 

 as are the rights of every other private appropriator not by 

 the amount which he took, not by the amount which he 

 claimed, not by an amount sufficient thoroughly and properly 

 to irrigate a thousand acres of land; but it would be measured 

 by the amount which he had been actually taking and apply- 

 ing to a beneficial use upon that land. His right to priority 

 in the use of water would also be measured by and limited to 

 this quantity. 



Another question was: Can a corporation, which has 

 appropriated water which the constitution has declared shall 

 forever be devoted to a public use, contract with A., B., and C. 

 to supply them in perpetuity with a given quantity of water, 

 and then, by assigning in turn to A., B., and C. its rights under 

 these contracts, confer upon A., B., and C. a private right 

 superior to and destructive of the public use? If this may be 

 done with one, it may be done with many, and water which 

 has thus been appropriated for public rental, distribution, and 

 sale may, by this legerdemain of the law, be transferred into 

 private ownership and use. This may not be done. 



The fundamental and all-important proposition then is 

 this: That a public service water company which is appropri- 

 ating water under the constitution of 1879, for purposes of 

 rental, distribution, and sale, cannot confer upon a consumer 

 any preferential right to the use of any part of its water. 

 All are equally entitled to share in the use of the water who 

 pay, or offer to pay, the legal rate and to abide by the reason- 

 able rules and regulations of the company. 



It does not follow that a water company may not make 

 specific contracts with individual consumers which are within 

 the purview of the constitution and within valid legislative 

 enactments regulating the public use. This is precisely as 

 decided by Fresno Canal Co. vs. Park, 129 Gal. 437. But, as 

 decided in Crow vs. San Joaquin Irrigation Co., 130 Cal. 309. 

 immediately following the Park Case, such a contract, even 

 if violated by the consumer, could not operate to deprive 

 him of his constitutional right to the water furnished by the 

 public service corporation upon tender to it of the legal rate. 

 For the breach of the consumer's contract, the water company 

 must seek other redress than that of depriving the consumer 

 of his share of the supply. 



The foregoing statement that a water company, or person 

 in charge of water devoted to public use, cannot confer a 

 preferential right upon one consumer over another, is not to 

 be understood as denying the right of such company or per- 

 son in possession of a limited amount of water to devote that 

 amount to the irrigation of a given area of land. The court 

 is not to be understood as saying that the company may not 

 fix the limits of this territory, and lawfully agree to supply 

 Its waters, first, to the lands within that territory, and to 

 supply to outsiders only such surplus as there may be after 

 the needs of the original territory for which the water was 

 procured are satisfied. This would, not be in derogation of 

 the public trust, but would be a mere regulation of use in 

 the performance of the trust. 



Permanent rights, in a limited sense, consumers may 

 acquire. That is to say, having once been supplied by the 

 company, they are entitled to a continuation of such supply, 

 unless their amount shall be diminished by a shortage for 

 which the water company is not responsible, or a shortage 

 by reason of the increased demand of added consumers. In 

 such cases the duty of the water company is to supply such 

 water as it has, fairly apportioned between its consumers. 

 If it be conceived that section 552 of the civil code is designed 

 to confer upon any particular consumer any special, per- 

 manent, and preferential rteht above what is here stated, that 

 effort, being plainly vlolative of the constitution, would be 



held void. The same declaration applies to the provision of 

 the act entitled "An act to regulate and control the sale, 

 rental and distribution of appropriated waters in this state 

 other than in any city," etc., approved March 12, 1889, and 

 the amendment to that act approved March 2, 1897. 



In this case there was no refusal on the part of the com- 

 pany to furnish water. The plaintiff was tendered the water 

 first, at the rate fixed by law, and, second, at the rate fixed 

 by a contract assigned to h'im. But he refused to pay any- 

 thing for the water, and insisted upon his right to take it 

 and use it without charge. This right he did not have. The 

 utmost for which he could contend was the right to the use 

 of water (in consonance with the foregoing principles) upon 

 the tender of payment of the contract rate. His conduct was 

 an intentional breach and repudiation by which, whatever it 

 may have been conceived they were, his rights under the 

 contract came to an end. 



VALIDITY AND CONSTRUCTIOS OP GRANT OP "FREE 

 AND PERPETUAL USE OF WATER." 



Where a landowner conveys a tract of land lying under 

 his canal and susceptible of irrigation therefrom, and includes 

 in the conveyance a grant of the "free and perpetual use of 

 water" from the grantor's canal sufficient to irrigate the land 

 conveyed, the supreme court of Idaho holds, Nampa & Merid- 

 ian Irrigation District vs. Gess, 106 Pacific Reporter, 993, 

 that the grant of such free and perpetual water right does 

 not obligate the grantor or his successors or assigns to per- 

 petually bear and pay the expense and cost of maintaining 

 and protecting the canal and the water right and delivering 

 the water to the consumer. In such a case the contract con- 

 veys a free and unincumbered right and title in and to the 

 waters of the canal, and carries with it an unqualified right 

 to the extent of the quantity of water conveyed in the 

 appropriation itself and the right to have the water flow 

 through the canal, and the grantor perpetually abandons and 

 foregoes the right to ever thereafter charge, collect or 

 realize any profit or rental for the use of the water con- 

 veyed. 



The court has no doubt but that the grantee acquired his 

 right and interest in the appropriation of the volume of 

 water which was carried through the canal, and that he 

 might, at any time the majority owners of the canal failed or 

 neglected to protect the appropriation and keep the canal in 

 repair, go himself upon the property, protect the appropria- 

 tion, maintain the diversion, and carry the water through the 

 canal to the extent of the quantity necessary for the irriga- 

 tion of his tract of land. In such a case, the actual expense 

 of maintenance and delivery to the extent of his use would 

 fall upon him, but he would be liable to no one for water 

 rentals. 



If a contract of this kind is to be held valid, it must rest 

 upon the assumption that the ditch company originally 

 received a sufficient consideration for the contract to Justify 

 it perpetually thereafter abandoning and foregoing the right 

 to realize a profit or rental for the delivery of the quantity 

 of water sold under the contract. Such an assumption is by 

 no means unreasonable or illogical. A canal company at a 

 time of financial need might receive a sufficient consideration 

 for a perpetual water right that the annual income from such 

 consideration would equal the annual water rates that might 

 thereafter be established in conformity with law. The com- 

 pany cannot, however, sell and dispose of free water rights, 

 and thereafter claim a sufficient water rate from other con- 

 sumers to pay it a profit on the free water rights thus dis- 

 posed of. That is the question specifically determined and 

 passed upon by the federal court in the case of Boise City 

 Irrigation & Land Co. vs. Clark. 131 Fed. 415. 



TIME POR COMPLETION OF DITCH AND ATTACHMENT 

 OP RIGHTS MEASURE AND LIMIT OP WATER 

 RIGHTS QUANTFTY AND MEASUREMENT OF WATER 

 REQUIRED FOR PROPER IRRIGATION. 



The supreme court of Oregon says, in the case of Whited 

 and others vs. Gavin and others, 105 Pacific Reporter, 396, 

 brought to determine the right, as between the plaintiffs and 

 the defendants, to the use of the waters of the south fork 

 of Burnt river in Baker county, that arrangements were made 

 in 1883 whereby the plaintiffs joined in the enlargement of 

 the ditch begun by Whited in 1881. and the work of enlarging 

 and extending it, to cover their lands, was diligently prose- 

 cuted until its completion, which was accomplished within 

 four years from the commencement thereof. This, the court 

 believes, in view of the difficulties encountered in its con- 

 struction and other circumstances disclosed by the record, 

 was within a reasonable time. Under such circumstances, 

 by the well-settled rule in Oregon, the plaintiffs' rights re- 

 lated back to the commencement of their work in 1883 and 

 Whited's rights attached at an earlier period. 



The next point was that, taking all of the testimony into 

 consideration, it was reasonably safe to infer that the carry- 

 ing capacity of the Wham-Whited Upper ditch had, since 

 1887, been increased about 30 per cent, and that, at the time of 

 the location of the appealing defendants' water rights, it was 

 about 10 second feet, or 400 inches, which, the supreme court 

 finds, was the quantity to which the plaintiffs, as against all 

 the defendants, are entitled, west of the channel of the creek 

 and below the Wham-Whited Upper ditch for a sufficient time 

 during each irrigation season to properly irrigate their lands. 



Other points, of general interest, decided are: That a 

 change in the point of diversion and place of use may be made 

 when it can be done without prejudice to the rights of others. 



Any person or number of persons may have an interest 

 in or become the exclusive owner or owners of, different water 

 rights, each of which may have had their inception at dif- 

 ferent times, and in such cases the order of their respective 



