THE IRRIGATION AGE. 



85 



Supreme Court Decisions 



Irrigation Cases 



NEGLIGENT ALTERATION OF CHANNEL. 



Where defendant negligently constructed and maintained a 

 river cut-off, so as to cast the waters with the excavated 

 material on contiguous lands in greater volume and with more 

 injurious consequences than the water naturally flowing, he 

 was answerable for the damages sustained, whether he con- 

 structed the cut-off as owner of the land or as a licensee. 

 f Neumeister v. Goddard. Supreme Court of Washington, 

 113 Northwestern 733. 



BROKER NOT ENTITLED TO COMMISSION ON TRANSFER. 



Where, to acquire means of irrigating for lands so as to 

 make them salable, they were transferred to a land and irri- 

 gation company, the owners taking stock and bonds therefor, 

 the transaction was a consolidation of interests, and not a 

 sale of the lands within a contract entitling plaintiff to com- 

 missions for services in effecting sales of the lands. 



Close Bros. & Co. v. Browne. Supreme Court of Illinois, 

 82 Northeastern 629. 



NOTICE OF WATER BEING REQUIRED. 



Where an irrigating contract contains a stipulation to 

 the effect that the contracting company "shall be entitled to 

 a written notice of not less than 10 days before water will be 

 required on the premises," which shall be served on a par- 

 ticular officer "and shall state, as nearly as may be, the num- 

 ber of acres to be irrigated at that time," no damage can be 

 recovered for failure to furnish water, in the absence of 

 allegation and proof that the notice so required was given, 

 unless it be satisfactorily shown that the inability of the com- 

 pany to furnish water was admitted. 



Mattiieu v. North American Land & Timber Co. Su- 

 preme Court of Louisiana, 44 Southern 721. 



LIABILITY OF IRRIGATION COMPANY. 



In the (rice irrigation) contract before the court, the 

 irrigating' company (defendant) is made the sole judge as to 

 when the water shall be furnished, and in what quantities, 

 and it is otherwise stipulated that it shall not be liable for 

 failure to furnish water, when such failure is caused by de- 

 ficiency of water at its source of supply, accidents to machin- 

 ery, injuries to canal, or other failures or accidents over 

 which it has no control. Held, that the control vested in the 

 defendant- is accompanied by a corresponding measure of 

 liability, and is exercised at its peril, arm that the allegation 

 that, having control of the water, it failed to furnish same, 

 on proper demand, under the contract, and that plaintiff 

 thereby lost his crop, would disclose a cause of action, and if 

 sustained by proof would entitle plaintiff to recover, unless 

 defendant could show that its failure to furnish the water 

 was attributable to one or more of the causes exempting it 

 from liability in such case. 



Mathieu v. Nortkh Am. Land & Timber Co. Supreme 

 Court of Louisiana, 44 Southern 721. 



MEASURE OF DAMAGES FOR OBSTRUCTION OF FLOW. 



In a suit for the obstruction of the flow of water for 

 irrigation to which plaintiff claimed himself entitled, by rea- 

 son of which his crops were damaged, the measure of dam- 

 ages was the difference between the amount realized from 

 the crops and the amount that would have been realized had 

 water been furnished, less the cost of raising, harvesting, 

 marketing, etc. 



Tubbs v. Roberts. Supreme Court of Colorado, 92 Pa- 

 cific 220. 



APPROPRIATION OF WATER. 



D., having excavated an irrigation ditch drawing water 

 from a natural stream, abandoned the land, of which de- 

 fendant subsequently took possession, after which defendant 

 made use of water flowing in the ditch by the construction 

 of certain laterals. Held, that defendant having made no 

 appropriation of water from the stream, and having ac- 

 quired no rights from D. by conveyance, appropriation, or 



otherwise, his right to water was measured by the quantity 

 he diverted from the ditch through the laterals constructed 

 and applied to a beneficial use before plaintiff's appropriation 

 of water in the stream for the irrigation of his land. 



Tubbs v. Roberts. Supreme Court of Colorado, 92 Pa- 

 cific 220. 



WATER RIGHTS OF UNITED STATES GOVERNMENT. 



The action of the Secretary of the Interior or other de- 

 partmental officer of the government in approving the maps 

 of location of irrigation canals or ditches over public lands 

 or reservations, as provided for by Act March 3, 1891, c. 561, 

 18, 19, 26 Stat. 1101, 1102 [U. S. Comp. St. 1901, pp. 1570, 

 1571], cannot give the companies constructing the same any 

 right to appropriate the waters of a stream, nor estop the 

 United States to assert a priority of right thereto, where it 

 exists, against either such companies or users who may be 

 supplied by them. 



United States v. Conrad Inv. Co. Circuit Court, District 

 of Montana, 156 Federal 123. 



WATER RIGHTS IN BLACKFEET RESERVATION OF MONTANA. 



The Blackfeet Indian reservation was created by a con- 

 vention with the Indians, as shown by Act May 1, 1888, 

 c. 213, 25 Stat. 113-129, by which the land was assigned to 

 them for their exclusive use and occupancy that they might 

 be assured of permanent homes, and with the design that they 

 should ultimately take allotments in severally. The reserva- 

 tion is in part bounded by the center line of Birch creek, a 

 considerable stream, and while a considerable part of the 

 land is capable of being used for farming, it is arid, and 

 requires irrigation. Held, that the creation of the reservation 

 operated as a reservation of so much of the waters of the 

 creek as might at any time in the future be required and 

 could be utilized in carrying out the purposes of the treaty; 

 that, so long as the government was administering the affairs 

 of the Indians, it had the right to determine as an adminis- 

 trative question the quantity of water required and to take 

 the same when and where it deemed necessary, the rights 

 of any others to appropriate water being subject to such 

 paramount right. 



United States v. Conrad Inv. Co. Circuit Court, District 

 of Montana, 156 Federal 123. 



FIVE YEARS' USE OF WATER. 



The burden is on one claiming the right to use water 

 by prescription to establish such right, but is discharged by 

 showing continuous occupancy and use of the water, as 

 though he were the owner, for more than five years, where- 

 uoon it devolves on the other party to show that the use 

 was permissive or without his knowledge. 



Gurnsey v. Antelope Creek & Red Bluff Water Co. Court 

 of Appeal, Third District California, 92 Pacific 326. 



PRESCRIPTIVE RIGHT TO WATER. 



Where a right is granted to take water for certain pur- 

 poses, and grantee uses the water as thereby permitted, and 

 also in a manner or for a purpose which is an enlargement 

 of or an addition to the use granted, he may nevertheless 

 acquire the right to such other use by prescription, as if there 

 had been no express grant to take for any purpose. 



Gurnsey v. Antelope Creek & Red Bluff Water Co. Court 

 of Appeal, Third District California, 92 Pacific 326. 



WATER RIGHT Is REAL ESTATE. 



A perpetual right reserved in a contract to have carried 

 by a ditch and furnished the owner of certain lands sufficient 

 water to irrigate them constitutes an easement in the ditch, 

 which is real estate. 



Farmers High Line Canal & Reservoir Co. v. New 

 Hampshire Real Estate Co. Supreme Court of Colorado, 92 

 Pacific 290. 

 RECORDING OF IRRIGATION CONTRACT Is NOTICE TO ALL. 



The recording of a contract creating an easement in 

 favor of certain real estate and binding upon the owners of 

 an irrigation ditch, and all leases, deeds or contracts of or re- 

 lating to the ditch or the land, they being contracts relating 

 to real estate, constitutes under the statute constructive no- 

 tice to all of the contents thereof and the rights of the parties 

 thereto. 



Farmers High Line Canal & Reservoir Co. v. New 

 Hampshire Real Estate Co. Supreme Court of Colorado, 

 92 Pacific 290. 



