212 



THE IRRIGATION AGE. 



Supreme Court Decisions 



Irrigation Cases 



ADJUDICATION OF PRIORITIES. 



A statutory decree establishing priorities to the use of 

 water for irrigation confers no new rights, but is merely 

 evidence of pre-existing rights, which may be lost by subse- 

 quent abandonment. Alamosa Creek Canal Co. v. Nelson. 

 Supreme Court of Colorado. 93 Pacific 1112. 



CONTRACT FOR IRRIGATION NATURE OF PROPERTY RIGHT. 



The right conferred on a landowner by his contract with 

 a water company to have water flow from its canal, through 

 a lateral ditch, to his land, for its irrigation, for a term of 

 years, is a" servitude on the ditch and canal, and an appur- 

 tenance to the land, and so is real property. Stanislaus Water 

 Co. v. Bachman. Supreme Court of California. 93 Pacific 858. 



COLORADO DISTRICT COURTS HAVE JURISDICTION TO DETERMINE 

 PRIORITY. 



Const, art. 6, sec. 11, giving the district court jurisdiction 

 of all causes both at law and equity, gives jurisdiction to 

 determine claims to priorities in the appropriation of water 

 from public streams, and that jurisdiction is not affected by 

 the statutes dividing the state into water districts, and pro- 

 viding for the adjudication of priorities in those districts. 

 Kerr v. Burns. Supreme Court of Colorado. 93 Pacific 1120. 



MORTGAGE SUBSEQUENTLY ACQUIRED WATER RIGHTS. 



Though a mortgage of land is made prior to the contract 

 of the landowner with a water company, by which the com- 

 pany agrees to furnish through its canal to him, his heirs or 

 assigns, water to irrigate the land for a term of years, he to 

 make certain yearly payments therefor, the water right, when 

 acquired, having become an easement appurtenant to the land, 

 passed with it under the foreclosure of the mortgage. 

 Stanislaus Water Co. v. Bachman. Supreme Court of Cali- 

 fornia. 93 Pacific 858. 



MANDAMUS TO DELIVER WATER FOR PAST SEASON. 



In mandamus to compel a ditch company to transfer 

 shares of stock to petitioner, and to deliver to him during the 

 irrigation season of a designated year the quantity of water 

 to which such shares entitle the owner, a judgment awarding 

 the writ rendered after the expiration of the irrigation season 

 for the designated year is erroneous, under the rule that 

 courts do not order performance of impossible acts. The 

 action was dismissed without prejudice to petitioner. Agri- 

 cultural Ditch Co. v. Rollins. Supreme Court of Colorado. 

 93 Pacific 1125. 



PROCEEDING TO CHANGE POINT OF DIVERSION. 



Before the passage of Sess. Laws 1899, p. 235, c. 105, 

 providing for a change of the point of diversion of water 

 from an irrigation ditch, the owner of a right to use water 

 from any of the streams of the state for irrigation might in 

 equity sue one respondent alone, and have determined as 

 against him the right to change the point of diversion, and 

 the right was not limited to any particular territory, or con- 

 fined to any arbitrary diversion of the stream. Lower Latham 

 Ditch Co. v. Bijou Irrigation Co. Supreme Court of Colorado. 

 93 Pacific 483. 



LIABILITY UNDER CONTRACT TO FURNISH WATER. 



Where an irrigation company having contracted to fur- 

 nish plaintiffs' landlords with water for the irrigation of the 

 rented premises, the landlords agreed to furnish sufficient 

 water to plaintiffs to irrigate their crops, but were unable to 

 do so because of the irrigation company's breach of its con- 

 tract, whereupon plaintiffs sued their landlords for damages, 

 plaintiffs' recovery afforded the landlords no right to recover 

 over against the irrigation company the amount thereof. 

 Stockton v. Brown. Court of Civil Appeals of Texas. 106 

 Southwestern 423. 



STREAM'S RUNNING DRY DOES NOT DESTROY CONTINUITY OF 

 USE. 



In an action to enjoin the diversion of water from a 

 stream, where the evidence showed that plaintiffs had, when 

 the supply permitted, irrigated by means of water taken from 

 the stream, the fact that for several years the stream had been 

 dry for a longer time each year than usual, and that they had 

 not been able to get as much water as theretofore, did not 

 destroy the continuity of their use, or deprive them of the 

 right to use the amount formerly diverted if the stream should 

 again furnish that amount. Huffner v. Sawday. Supreme 

 Court of California. 94 Pacific 424. 



TOWN'S RIGHT TO STREAM NOT SUPERIOR TO THAT OF FARMING 

 COMMUNITY. 



Mills' Ann. St. sec. 4403, subd. 73, authorizing a town to 

 take water from any stream or spring for domestic purposes, 

 and providing that, when the taking shall interfere with the 

 vested rights of any person, the town shall first obtain his 

 consent or acquire the right by condemnation, does not give 

 a right to a town to divert water for the use of its inhabitants 

 superior to the right of an individual or a farming community 

 to divert water for domestic or other purposes, in the sense 

 that the town may take the water for that purpose from those 

 who have previously appropriated it for the same or some 

 other beneficial use without compensation. Town of Sterling 

 v. Pawnee Ditch Extension Co. Supreme Court of Colorado. 

 94 Pacific 339. 



APPROPRIATION OF WATER EVIDENCE. 



Though evidence of nonuser and similar acts before a 

 decree establishing priorities to the use of water by the owner 

 of an irrigation ditch is improper for the purpose of proving 

 his right to use a less volume of water than that decreed to 

 him, as well as for the purpose of showing the element of 

 nonuser in a subsequent abandonment relied on by another 

 appropriator suing for diversion of the water, but where there 

 is sufficient legal evidence as to the element of nonuser subse- 

 quent to the decree, evidence of nonuser and similar acts by 

 such owner before the decree, for the purpose of showing his 

 intent in not using what was awarded to him, is proper and 

 not prejudicial. Alamosa Creek Canal Co. v. Nelson. Supreme 

 Court of Colorado. 93 Pacific 1112. 



MORTGAGE ON WATER SYSTEM. 



If a mortgage given by a water company on its water 

 system was such as to make it paramount to the rights of a 

 landowner under the contract thereafter made with him by the 

 company to furnish through its canal water to irrigate his 

 land for a term of years, he to make certain yearly payments 

 therefor, yet, he not having been made a party to the fore- 

 closure, though his contract was recorded prior to commence- 

 ment of the foreclosure suit, the purchaser under the fore- 

 closure holds the canal system and the waters thereof subject 

 to the rights of such landowner, at least till those rights are 

 terminated by foreclosure proceedings to which he is a party. 

 Stanislaus Water Co. v. Bachman. Supreme Court of Cali- 

 fornia. 93 Pacific 858. 



CONTRACT TO SELL WATER FOR IRRIGATION. 



The agreement of a water company to sell water for a 

 certain price for irrigation of certain land for a term of years 

 is sufficiently certain, the water being described as water from 

 a certain river, to be carried through the company's canal, 

 and it being shown that it had but one canal leading from that 

 river, though the lateral ditch was not described, except by 

 the statement that the company was to deliver the water on 

 the land by means of such head gates, weirs, and devices as it 

 should construct for that purpose, a ditch through which 

 water was conducted to the land having thereafter been con- 

 structed by the company, and the contract in this respect hav- 

 ing thus been made definite. Stanislaus Water Co. v. Back- 

 man. Supreme Court of California. 93 Pacific 858. 



IRRIGATION DETERMINATION OF RIGHTS. 



Plaintiffs and defendant being tenants in common of the 

 rights in an underground water flow, defendant sank a well 

 on his own land, and erected a pump and a distributing sys- 

 tem to irrigate his own land. Held, in proceedings to deter- 

 mine the several rights in the water, that defendant could 

 not urge that plaintiffs were guilty of laches in permitting his 

 expenditure without complaint, since there was nothing in the 



