THE IKEIGATION AGE. 



559 



Supreme Court Decisions 



Irrigation Cases 



NECESSITY OF OWNERSHIP OF LAND. 



A person seeking to claim water for irrigation purposes 

 by appropriation must own the land sought to be irrigated, 

 or must have a possessory interest therein. Avery v. Johnson. 

 Supreme Court of Washington. 109 Pacific 1028. 

 DIVERSION OF WATER. 



When a riparian owner gives permission, even gratu- 

 itously, to divert water from the stream, he cannot recover 

 damages for such diversion, made before revocation of the 

 permission. Merritt v. Houlton Water Co. Supreme Judicial 

 Court of Maine. 76 Atlantfc 951. 

 SUIT BARRED AFTER FIVE YEARS. 



That certain artesian wells in a water course were left 

 uncapped, in violation of St. 1877-78, p. 195, c. 153, did not 

 constitute a special injury to plaintiff entitled to water from 

 the stream, where the water from the wells did not go to 

 waste during the irrigation season. Hudson v. Dailey. Su- 

 preme Court of California. 105 Pacific 748. 

 RIGHT TO DIVERT. 



The owner of land through which flows a running stream 

 of water in a well-defined channel has a right to divert 

 the stream from the channel upon his own land, provided he 

 returns it unimpaired to the channel upon his own land. 

 Johnston v. Hyre. Supreme Court of Kansas. 109 Pacific 

 1075. 

 EFFECT OF NOTICE OF APPROPRIATION. 



The filing of notice of appropriation of waters merely 

 shows an intent to appropriate, and does not establish an 

 appropriation nor determine the time or amount thereof; the 

 necessity for the use, actual diversion, and use being essentials 

 to the acquisition of title. Ison v. Sturgill. Supreme Court 

 of Oregon. 109 Pacific 579. 

 IRRIGATION CANALS. 



It was no defense to a suit by a reservoir company, to 

 enjoin interference with its water flowing in the canal of an 

 irrigation company, that there was a large volume of water 

 in the source of supply, available under the irrigation com- 

 pany's appropriations. Hackett v. Larimer & II' eld Reservoir 

 Co. Supreme Court of Colorado. 109 Pacific 965. 

 CONVEYANCES. 



A grantee's acceptance of a deed containing a reservation 

 to the grantor of a priority or appropriation of water for a 

 certain reservoir, when no priority or appropriation had been 

 secured, did not estop the grantee to claim an appropriation 

 of its own for such reservoir. Windsor Reservoir & Canal 

 Co. v. Lake Supply Ditch Co. Supreme Court of Colorado. 

 98 Pacific 729. 

 DIVERSION. 



Other appropriators of waters of the creek above the 

 lands of the parties need not be made parties to an action to 

 determine whether defendants shall be enjoined from wrong- 

 fully diverting waters to the damage of plaintiffs. Peck v. 

 Bono. Supreme Court of Washington. 110 Pacific 13. 

 TRANSFER OF UNUSED WATER. 



The owner of a mill race, entitled to appropriate a certain 

 quantity of water has no right to transfer to another any por- 

 tion of such quantity not actually used to operate the mill, 

 as against approprintors prior in risrht to the tansferree. 

 Windsor Reservoir & Canal Co. v. Hoffman Milling Co. 

 Supreme Court of Colorado. 109 Pacific 422. 

 RIGHTS OF PARTIES. 



One entitled by grant to use an irrigation ditch to convey 

 waters in excess of the amount required for_ the use of the 

 grantor has no right to commit an act occasioning injury to 

 the grantor, and the latter need not see that sufficient water 

 is flowing in the ditch to supply the needs of the grantee. 

 Carnes v. Dalton. Supreme Court of Oregon. ]10 Pacific 170. 

 PERMITTING EXPENDITURES. 



A riparian owner who knowingly stands by while a public 

 service corporation con~tructs and completes at great expense 



a s,ystem of works designed for public use is estopped from 

 invoking the aid of equity to restrain the diversion of water 

 necessary for the works, and his remedy is at law for dam- 

 ages. Miller & Lux v. Madera Canal & Irrigation Co. Su- 

 preme Court of California. 99 Pacific 502. 

 RIGHTS OF PARTIES. 



The fact that a co-owner of an irrigation ditch with the 

 contract right to appropriate a certain quantity of water from 

 the ditch elected to take less than such quantity did not 

 justify a complaint by one to whom the owners had granted 

 the right to use the ditch to convey waters in excess of the 

 quantity to which the owners were entitled. Carnes v. Dalton. 

 Supreme Court of Oregon. 110 Pacific 170. 

 PARTIES TO SUIT. 



Under the rule that those having no interest in the subject : 

 matter are not proper parties, an irrigation company was not 

 a necessary party to a suit by a reservoir company to enjoin 

 interference with its water, flowing in a canal of the irriga- 

 tion company, where the issue was whether plaintiffs or de- 

 fendants owned the water. Hackett v. Larimer & Weld 

 Reservoir Co. Supreme Court of Colorado. 109 Pacific 965. 

 INJURIES FROM OVERFLOW. 



Mills' Ann. 'St. 2272, making the owners of reservoirs 

 liable for all damages from leakage or overflow of the wa- 

 ters or by floods caused by breaking of the embankments was 

 not impliedly repealed by Laws 1899, c. 126, entitled "An act 

 in relation to reservoirs," as the latter act expressly relates 

 only to reservoirs of a certain capacity and dams having 

 certain dimensions. Garnet Ditch & Reservoir Co. v. Samp- 

 son. Supreme Court of Colorado. 110 Pacific 79. 

 ORGANIZATION OF IRRIGATION DISTRICTS. 



"The holders of title or evidence of title," or entrymen 

 "on lands under any law of the United States or of this state," 

 who have received receipts or other evidence of their rights 

 as such entrymen, are competent and proper persons to sign 

 a petition for the organization of an irrigation district under 

 the provisions of section 2372, Rev. Codes, and such peti- 

 tioners may be counted in computing the requisite number of 

 signers or holders of title or evidence of title to lands sus- 

 ceptible of irrigation under a common system of irrigation. 

 Gem Irr. Disf. v. Johnson. Supreme Court of Idaho. 109 

 Pacific 845. 



CONVEYANCE OF WATER RIGHTS. 



Plaintiff sold defendant land, together with a half interest 

 in an irrigation ditch which conducted water to the land, and 

 the contract provided that in case defendant should not be 

 satisfied with the ditch plaintiff would transfer to him a share 

 ; n a water company in lieu of the interest in the ditch. De- 

 fendant improved the ditch, and obtained an additional supply 

 of water, but thereafter became dissatisfied, and, as a com- 

 promise, a certain amount was deducted from the purchase 

 price in lieu of the ditch and water right. Held, that all im- 

 provements of the ditch and the supply of water secured 

 thereby reverted to plaintiff. McElravy v. Brooks. Supreme 

 Court of Colorado. 109 Pacific 863. 

 NECESSITY OF BONA FIDE SETTLEMENT. 



The appropriation of the waters of a stream for irrigation 

 purposes by one occupying public lands could confer no right 

 on such occupant prior to his assumption of the status of an 

 actual bona fide settler under the homestead laws, and the 

 absence of a bona fide intention to settle on the land is suffi- 

 ciently evidenced by the act of the occupant in failing for 

 nearly two years, and while the land had been surveyed and 

 was open to entrv, to file in the land office a relinquishment 

 received bv him from a prior trespasser. Avery v. Johnson. 

 Supreme Court of Washington. 109 Pacific 1028. 

 RIGHT TO DITCH LAND. 



A landowner has a right to dig a ditch upon his own land 

 along and adjoining the land of another, so lone as the effect 

 thereof is such as not to interfere with the lateral support of 

 his neighbor's land; but if the lateral support of his neigh- 

 bor's land is removed, and damage results therefrom, without 

 fault on the nart of the neighbor, he is responsible therefor; 

 bi't if the neighbor by any act. or acts, assembles quantities 

 of water and casts them into the ditch in such manner as 

 to increase the injurv to his own land, and the amount of 

 iniury done bv each is not aooortionable. he cannot recover. 

 Jnhnston v. Hyre. Supreme Court of Kansas. 109 Pacific 

 1075. 



