THE IKRIGATION AGE. 



323 



priorities must necessarily depend upon the dates of the initi- 

 ation of each particular right. 



The right to water, claimed by prior appropriaiors for 

 irrigation purposes, is always limited In quantity by the use 

 for which the appropriation is made, and to which it may, In 

 a reasonable time, be applied, and it is so well settled as 

 almost to become axiomatic that beneficial use and the needs 

 of the appripriators, and not the capacity of the ditches, or 

 quantity first run through them, is the measure and limit 

 of the appropriators. While the quantity to which the appro- 

 priators may be entitled does not necessarily equal the carry- 

 ing capacity of the ditch, the capacity thereof is essentially 

 the utmost limit of such right. Measured by this rule, the 

 plaintiffs, as first appropriators, were limited to the capacity 

 of the ditch, which at the inception of the defendants' rights 

 did not exceed 400 Inches, and to the use of water sufficient 

 only for the proper irrigation of a quantity of lands not ex- 

 ceeding the acreage between the ditch and the stream from 

 which diverted. 



Nearly all the witnesses placed the quantity required 

 for the proper irrigation of lands in that vicinity at one inch 

 per acre, though one witness gave it as his opinion that it re- 

 quires as high as 17 inches per acre for the proper Irrigation 

 of some lands. It is obvious, that a flow of 17 inches of water 

 per acre is never required for the irrigation of any lands, 

 even though it should be but one acre, unless in some ex- 

 ceptional localities, where the soil may contain so much gravel 

 or be so porous as to make its use unprofitable for cultivation. 

 The sincerity of the witness serves only to illustrate the gen- 

 eral lack of knowledge, even among water users, concern- 

 ing the quantity of water furnished by a constant flow of 

 one inch, miner's measurement, and the corresponding unreli- 

 ability of testimony of the character adduced on the subject, 

 amounting merely to an opinion or guess without any actual 

 test as to the quantity actually used and required. 



One inch of water, under six-inch preasure, miner's 

 measurement, isl-40 of a second foot, and furnishes a flow 

 of 675 gallons per hour, which in 30 days would furnish 

 1% acre feet, or 6 acre feet of water for a 4 months' irriga- 

 tion period. A flow of 17 inches therefore would cover an 

 area, equal to one acre, to a depth of 25% feet each month 

 or 102 feet in depth (102 acre feet), during and Irrigation 

 season of four months. The absurdity of such a quantity 

 being essential to the proper Irrigation of lands Is manifest. 

 Four hundred inches of constant flow would cover an area 

 equal to 440 acres, during a like period, 5% feet In depth. 

 The quantity allowed by the government for an irrigation 

 season in similar localities and altitudes, with like soil, is 

 usually about 1% acre feet. It is clear therefore that 10 

 second feet, or 400 Inches, are ample for the irrigation of the 

 plaintiffs' lands under the ditch, and it Is probable that even 

 this quantity is not required at all times during the Irlgation 

 seasons. When not so required, it becomes subject to use 

 by others .on the stream, in the order of their rights. 



As the plaintiffs rely for their water rights on the diver- 

 sion made through the Wham-Whlted Upper ditch, they are 

 limited in their use. under this appropriation, to the lands 

 under that ditch, which may be irrigated by water diverted 

 either through that canal or other ditches under it; and, 

 while not necessarily confined to the same specific tracts 

 upon which the appropriation was perfected at the time of the 

 Inception of the water rights of the answering defendants, 

 which did not exceed 440 acres. 



It may be regarded as well in Oregon that it is only 

 necessary to the maintenance of suits of this character, either 

 that it appear that the defendants claim adversely to the 

 moving party, or, if not asserting a hostile claim, that those 

 made defendants are -necessary to a complete determination 

 of the controversy. 



Supreme Court Decisions 



Irrigation Cases 



RIGHT TO RECOVER DAMAGES FOR DELAY IN FURNISHING 



PLANT. 



Where a buyer of an irrigation plant accepted the plant 

 when completed, and stated in writing that it was erected 

 according to the contract, and he procured an extension of the 

 note for the price, based on his waiver of all damages, he 

 could not recover damages for the seller's failure to deliver 

 tlr: plant in time. Fairbanks Co. v. Stites. Court of Civil 

 Appeals of Texas. 125 Southwestern 636. 

 REPUDIATION OF CONTRACT, 



Where a water company tenders water to a consumer, 

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

 a contract, and the consumer refuses to pay anything, and 

 claims the right to use it without charge, this amounts to a 

 repudiation, by which any rights of his under the contract 

 are ended. Leavitt v. Lassen Irrigation Co. Supreme Court 

 of California. 106 Pacific 404. 

 POLLUTION OF STREAM. 



Where defendant, in the operation of its concentrating 

 mill, with a comparatively small expenditure could take care 

 of the tailings on its own premises instead of discharging 



them into a stream from which plaintiff had appropriated 

 waters for irrigation, defendant was not entitled to continue 

 such discharge on the ground that its mill was absolutely de- 

 pendent on the right to discharge its waste material into the 

 stream. Humphreys Tunnel & Mining Co. v. Frank. Su- 

 preme Court of Colorado. 105 Pacific 1093. 



RIGHTS OF RIPARIAN OWNER. 



Each riparian owner is entitled to a reasonable use of 

 the waters as an incident to his ownership ; his right to be 

 consistent with the rights of the others. McEvoy v. Taylor. 

 Supreme Court of Washington. 105 Pacific 851. 



CHANGE IN POINT OF DIVERSION. 



An appropriator of water for irrigation may not change 

 the point of diversion, the character or place of use, or en- 

 large the same to the injury of other appropriators, but, with 

 this qualification, the right to do so is a vestetl property right, 

 which attaches to the appropriation, and may be made at the 

 will of the appropriator. Dies v. Hartbauer. Supreme Court 

 of Colorado. 105 Pacific 868. 



CHANGE IN POINT OF DIVERSION. 



A change in the point of diversion of water for irrigation 

 and place of use may be made when it can be done without 

 prejudice to the rights of others. Whited v. Cavin. Supreme 

 Court of Oregon. 105 Pacific 396. 



CONSTRUCTIVE TRUST IN IRRIGATION PROJECT. 



Decedent posted notices of appropriation of water intend- 

 ing to acquire the C. canal, a partly completed irrigation canal, 

 for use of distributing the water appropriated. Being with- 

 out sufficient means, he interested defendants; it being agreed 

 that a corporation should be formed to carry on the enter- 

 prise. Decedent conveyed all his rights to defendants in trust, 

 to be conveyed by them to the corporation on its formation. 

 The contemplated corporation was not organized, and de- 

 fendants, to defraud decedent, organized another corporation 

 and acquired independent rights, including a lease of the 

 canal. One of defendants and the corporation posted notices 

 of appropriation at substantially the same place where de- 

 cedent posted his. Decedent's administrator sues to establish 

 a trust in the property, for an accounting, etc. Held, that he 

 could show that the corporation excavated a canal extending 

 from where its notice was posted to the upper end of the 

 C. canal and completed the C. canal ; that the C. canal dis- 

 trict owned a strip of land extending from the upper end of 

 the canal to the river, and covering decedent's water loca- 

 tion, as well as the later locations by defendants and the 

 corporation, and that the land was included in the lease ; that 

 one of defendants, when negotiating for the lease, said that 

 he could and would acquire decedent's right for use in con- 

 nection with the canal, and that those rights were necessary 

 to the scheme he proposed to carry out because they were 

 superior to the right of the irrigation district, and that he 

 intended to post new notices of appropriation to protect those 

 rights, and the administrator could also show the extent and 

 value of the C. canal, notice to the corporation of decedent's 

 rights and of his interest in common with the defendants, 

 and the time elapsed since the district had done any work 

 under its irrigation scheme or toward the completion of the 

 canal ; that the corporation paid the rent reserved in the 

 lease ; and that the line of the proposed canal described in 

 decedent's appropriation notices was identical with the line of 

 the C. canal. Beckivith v. Sheldon. Supreme Court of Cali- 

 fornia. 97 Pacific 867. 



Water flowing in a well-defined water course, whether 

 swale or creek in its primitive condition, may not, except 

 in the exercise of the power of eminent domain, lawfully 

 be diverted and cast upon lands of an adjoining proprietor, 

 where it was not wont to run according to natural drainage. 

 Kane v. Bozt'den. Supreme Court of Nebraska. 123 North- 

 western 94. 



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