180 



THE IRRIGATION AGE. 



IRRIGATION SALVAGE AND DEVELOPED WATER. 



Where, under a contract with defendant, plaintiffs were 

 only entitled to one-hall' of the natural flow of a stream as 

 it reached a dam, any water defendant saved by impounding 

 the water above and bringing it to the dam by pipe line, thus 

 saving the water otherwise lost by seepage, etc., above the 

 dam, and any water developed from the bed of the stream, 

 are essentially new waters, and the right to use and dis- 

 tribute them belongs to defendant, under the principle that, 

 where one is entitled to use a given amount of water at a 

 given point, he may not complain of any prior use made of 

 the water not impairing the quantity or quality to which he 

 is entitled, and that he may not claim any excess of water 

 over the amount to which he is entitled however it may be 

 produced. 



Pomona Land & Water Co. v. San Antonia Water Co. 

 Supreme Court of California, 93 Pacific 881. 



IRRIGATION CONSTITUTIONAL PROVISIONS. 



Const. 1879, art. 14, declaring the use of waters appro- 

 priated for sale, rental, or distribution to ie a public use 

 subject to the regulation of the state as shall be prescribed 

 by law, and that the right to collect compensation 1'or water 

 supplied to any county, city or town, or the inhabitants thereof, 

 cannot be exercised except by authority of and in the manner 

 prescribed by law, does not prevent a landowner acquiring 

 and attaching to his land a right to the permanent use of 

 water; and, in the absence of exercise of the power, dele- 

 gated by statute to county boards of supervisors, of control 

 and regulation of waters outside of cities, the terms of a 

 contract 1'or furnishing water for irrigation, for a term of 

 years, at a fixed yearly rental, remain in full force, and con- 

 stitute the measure of the rights of the parties. 



Stanislaus Water Co. v. Bachman. Supreme Court of 

 California. 82 .Pacific 858. 



Big Fork, Flathead Lake, on Line of Great Northern Railway. 



BREACH OF IRRIGATION CONTRACT. 



A paragraph of a charge, in an action for breach of a 

 contract, whereby defendant was to I'urnish sufficient water 

 for plaintiff's rice crop, but exempting him from liability 

 should there be insufficient water, provided a reasonable effort 

 was made to procure the same, that under the contract de- 

 fendant obligated himself to use his best judgment and all 

 reasonable effort to furnish such an amount of water as ac- 

 cording his judgment was sufficient, was not subject to the 

 objection that it made defendant the sole judge as to the 

 effort necessary to procure the water supply, where the court 

 expressly informed the jury that defendant obligated himsell' 

 to use all efforts reasonably at his command, and further 

 charged that, if defendant did not use reasonable efforts to 

 furnish the water, to find for plaintiff. 



Kelly v. Corrington. Court of Civil Appeals of Texas, 

 105 Southwestern 1155. 



ADVERSE POSSESSION OF WATER COURSE. 



An irrigation company let a water power and gin site 

 to plaintiff for 10 years, reserving the right to use or dispose 

 of the surplus water over the amount necessary to operate 

 a gin. Plaintiff leased the premises to D. from year to year 

 until the "in burned, after which defendant obtained a con- 

 veyance from the irrigation company of the "surplus water," 

 and later obtained a transfer of D.'s rights. Both convey- 



ances recited the conveyance under which plaintiff claimed, 

 and defendant testified that at the time he bought- D.'s in- 

 terest D. informed him that he had arrangements with plain- 

 tiff to use the site and water power for 10 years, and that 

 he was to gin 10 bales ol' plaintiff's cotton as rental, etc., and 

 also stated that he intended to pay plaintiff for the use of the 

 premises and water power, but that plaintiff tendered him no 

 cotton to gin. Held, that defendant's occupation of the site 

 and water power was not adverse to plaintiff. 



Briggs v. Avary. Court of Civil Appeals of Texas, 106 

 Southwestern 904. 



MECHANICS' LIEN ON IRRIGATION WORKS. 



Under Act. Cong. June 11, 1896, c. 420, 29 Stat. 434, 6 

 Fed. St. Ann. p. 398 [U. S. Comp. St. 1901, p. 1556], which 

 is supplementary to Carey Act. Aug. 4, 1894, c. 208, 28 Stat. 

 226, 6 Fed. St. Ann. pp. 396-398 [U. S. Comp. St. 1901, p. 

 1552], Act Aug. 18, 1894, c. 301, 28 Stat. 422 [U. S. Comp. 

 St. 1901, p. 1554], and the act of the Legislature of the state 

 of Idaho of March 2, 1899 (Sess. Laws 1899, p. 282), accept- 

 ing the provisions of the Carey act, and providing for the 

 reclamation, occupation and disposal of lands thereunder, a 

 lien is granted in favor of the person, company, or associa- 

 tion contracting for the construction of canals and reclama- 

 tion works for the irrigation of arid lands thereunder, and 

 such lien extends to all lands in the segregation that can be 

 irrigated by such system, to the full extent of the price per 

 acre for which such persons, company or association con- 

 tracts and . agrees to sell water rights, and the contractor or 

 subcontractor performing work under such person, company 

 or association is entitled to the benefit of the lien laws to 

 secure the payment to him for such work to the full extent 

 of the title, interests, rights and claims of the company hav- 

 ing the contract from the state, and to the full extent of, 

 and commensurate with, the lien rights of such company. 



Nelson Bennett Co. v. Twin Falls Land 6" Water Co. 

 Supreme Court of Idaho, 93 Pacific 789. 



OPPORTUNITIES IN WEST. 



In an article written for an eastern magazine, Mr. 

 L. A. Huffman, a well known writer of Miles City, 

 Mont., gives a lot of good information concerning the 

 new line of the Chicago, Milwaukee & St. Paul railway 

 and its numerous feeders in the Dakotas and other 

 western states. Mr. Huffman says that "nowhere in 

 the United States, under like conditions, upon a solid 

 a-rea of plowable, black loam, in a like space of time, 

 will go vast a number of home seekers be accommodated, 

 yet I dare to say, -first hand, having just finished a drive 

 of three hundred miles or more along the extension of 

 the Chicago, Milwaukee & St. Paul railway between 

 Marmarth, N. D., on the Little Missouri and the Mus- 

 selshell River, in the heart of northern Montana, that 

 there remain within five to twenty miles of this new 

 line to the Pacific Coast, thousands of homesteads well 

 worth your while to look at, and which will be occupied 

 within the coming twelvemonth." 



Continuing, Mr. Huffman says : "Miles of prairie 

 across which steam plows must soon be striking furrows 

 and traction engines hauling grain to the elevators at 

 Marmarth, which is the first division point on the St. 

 Paul road east of Miles City, and, in the writer's opin- 

 ion, to become the county seat of the new county of 

 Hamilton, and within two years the most important 

 shipping point for grain and live stock between the Da- 

 kota line and the Yellowstone. All the roads on the 

 Little Beaver, Box Elder, and in the Little Missouri 

 Valley point naturally toward Marmarth. The Milwau- 

 kee Land Company will hold auction sales of lots in 

 Marmarth in the spring of 1908, and everything indi- 

 cates that this will be one of the red letter sales of the 

 West, both as to maximum bid for first choice and for 

 aggregate sales." 



