THE IBRIGATION AGE. 



481 



(Continued from page 465.) 

 RIGHT TO APPROPRIATE. 



The right to use waters on the public domain for a 

 beneficial purpose may be acquired by mere appropriation, 

 ind the first appropriator takes against the world to the 

 extent of his established appropriation, though at the time 

 of his application to the state engineer he has no present 

 right in the lands bordering the source of supply nor in 

 the lands to be benefited; he being entitled to conduct the 

 water across intervening public land to irrigate lands held 

 bv him or others or to dispose of it for a beneficial pur- 

 pose on lands held or owned by them. Sowards v. Meagh- 

 tr. Supreme Court of Utah. 108 Pacific 1112. 



IRRIGATION PROJECT. 



Where, by a contract between the United States and 

 landowners tributary to a federal irrigation system, such 

 landowners agreed to pay to the United States the charges 

 duly levied against their lands for the construction and 

 maintenance of the system, they were only liable for such 

 reasonable charges as the government was authorized to 

 collect, proportionate to their shares of the cost of main- 

 taining and operating the system, and not such as might 

 be arbitrarily fixed in advance by such secretary or other 

 governmental officer. United States v. Contrail. U. S. Cir- 

 cuit Court, District of Oregon. 176 Federal 949. 



RAILROAD RIGHT OF WAY. 



That the United States may in the future reasonably 

 require rights of way for ditches, in furthering a recla- 

 mation project, in addition to those now occupied by exist- 

 ing canals, and that it may be entitled to reserve land 

 therefor under General Appropriation Act, Aug. 30, 1890, 

 c. 837, 26 Stat. 391 (U. S. Comp. St. 1901, p. 1570), providing 

 that, in all patents for land thereafter taken up under the 

 United States land laws on entries west of the one hun- 

 dredth meridian, land shall be expressly reserved for a 

 right of way for ditches and canals constructed by the 

 authority of the United States, did not prevent a railroad 

 company from occupying lands in prsesenti legally conveyed 

 to it within a reclamation reservation by a homestead 

 entryman. United States v. Minidoka & S, W. R. Co. U. S. 

 Circuit Court, District of Idaho. 176 Federal 762. 



RIGHT OF WAY FOR IRRIGATION. 



Rev. St. 1895, art. 3126, granting to corporations 

 formed for irrigation purposes a right of way not exceed- 

 ing 100 feet in width over public lands, with the use of 

 the rock, gravel and timber on the right of way for con- 

 struction purposes, and authorizing such corporations to 

 obtain a right of way over private lands, and also land for 

 dam sites and reservoirs, grants over public lands only the 

 right of way with the use of materials therein for con- 

 struction purposes, and does not grant the right to appro- 

 priate such lands for dam sites and reservoirs, and the fact 

 that the use of public lands for a reservoir may be indis- 

 pensable to the project as designed by a corporation does 

 not justify it in taking public lands for such a purpose. 

 Jayne v. Imperial Irr. Co. Court of Civil Appeals of Texas. 

 127 Southwestern 1137. 



PRESCRIPTION. 



Defendant owned a ranch bordering on a stream and 

 used the waters thereof for irrigation by a ditch to carry 

 the waters to portions of the ranch adjoining the ranch 

 of a third person, who by the consent of defendant ex- 

 tended the ditch to his ranch and used a part of the water. 

 Plaintiff, owning an adjacent ranch, extended the ditch 

 to his lands, and used the waters with the consent of the 

 defendant. Defendant had complete control of the waters 

 and of the ditch so far as it extended over his ranch, and 

 plaintiff never used the waters under a claim of right. 

 Held that plaintiff did not acquire any right to the waters 

 by prescription, notwithstanding a special finding that the 

 waters were used by the interference of plaintiff. Davis v. 

 Martin. Supreme Court of California. 108 Pacific 866. 



APPROPRIATION OF WATER RIGHTS. 



Mills' Ann. St. section 2268, provides that the owner of 

 a meadow watered by the natural overflow of a stream 

 may, when such flow is diminished by the construction 

 of irrigation ditches by others, construct a ditch for the 



irrigation of the meadow. Section 2434 authorizes a 

 claimant of an irrigation priority within four years from a 

 final decree in a statutory adjudication proceeding to 

 bring any suit hitherto allowed by the proper court to de- 

 termine the priority. Section 2435 provides that after four 

 years from a final decree all parties whose interests are 

 affected shall be deemed to have acquiesced in it, and 

 thereafter all persons shall be forever barred from setting 

 up any claim to priority adverse or contrary to the effect 

 of the decree. Held, that the claimant of a right under sec- 

 tion 2268 in favor of a ditch constructed subsequent to a 

 general adjudication decree could not, more than four 

 years after such decree, maintain a proceeding to establish 

 his right relating back to a date prior to the rights adju- 

 dicated in the general decree. Broad Run Inv. Co. v. Deuel 

 & Snyder Improvement Co. Supreme Court of Colorado. 

 108 Pacific 755. 



APPROPRIATION. 



The rule that, where rights to lands across which a 

 stream flows are acquired or initiated prior to any appro- 

 priation of the waters of the stream, the rights of the 

 riparian proprietors are determined by the rules of the 

 common law governing riparian proprietors in force in the 

 state, and not by any rule of prior appropriation, applies 

 to springs existing from time immemorial, or of new 

 creation, and they may only be appropriated if existing 

 or appearing on the land to which no title has been ac- 

 quired from the government, or initiated looking to such 

 acquirement; and, where an owner'of land made no appro- 

 priation of the waters of springs until long after initiatory 

 steps had been taken by others to acquire title to the land 

 on which the springs appeared, the latter could hold the 

 springs and claim the waters as against any claim of prior 

 appropriation. Mason v. Yearwood. Supreme Court of 

 Washington. 108 Pacific 608. 



RIGHTS OF APPROPRIATOR. 



Where a prior appropriator of surplus and flood 

 waters in a gulch had previously maintained a dam below 

 a subsequent appropriator, which dam had been de- 

 stroyed, and, at the time the subsequent appropriator had 

 initiated his rights, was making no use of the water flow- 

 ing to the lower dam, and had not reconstructed the dam 

 at the time his action was brought to be decreed entitled 

 to all the water in the gulch, and though, from the evi- 

 dence, it could not be said that he had abandoned his 

 rights to use the water at the lower dam, yet a further 

 failure to use it might entail such result, the court could 

 not practically fix a time within which he should resume 

 its use or suffer its loss, and adjust the parties' rights 

 growing out of the prior appropriation of water to be im- 

 pounded by his lower dam, because of the many circum- 

 stances that might arise in connection with the rebuilding 

 and maintenance of the dam. Sullivan v. Jones. Supreme 

 Court of Arizona. 108 Pacific 476. 



APPROPRIATION. 



Plaintiff's intestate in 1901 took possession of land 

 surrounding springs on arid and unsurveyed public land, 

 erected a cabin, constructed a corral, and fenced in a few 

 acres. Until his" death in 1905, he maintained the corral 

 and fences, and a portion of time each year lived in the 

 cabin, and while living there used the water for culinary 

 purposes and to water a team and saddle horse, but never 

 used it for irrigation. Prior to 1901 sheep and cattle men 

 used the water, and thereafter intestate occasionally re- 

 quired the sheep men to pay for the water while the cattle 

 men used it without, but neither disputed nor interfered 

 with intestate's right to use the water. Defendant, a cattle 

 man, watered his cattle at the springs for a number of 

 years. Held, that intestate, although he might have been 

 a trespasser on the land, acquired the right to use the 

 quantity which he used, and,, although he posted no .notice 

 that he intended to appropriate the water in accordance 

 with the law in force in 1901, the notice and record thereof 

 being merely prima facie evidence that the person giving 

 the notice was applying the water to some beneficial use, 

 ,so that plaintiff had the right to use the quantity of water 

 'used by intestate, and even if he had no right in the land 

 surrounding the springs, he could divert it to some other 

 place, if possible. Patterson v. Ryan. Supreme Court of 

 Utah. 108 Pacific 1118. 



