274 



THE IRRIGATION AQE. 



under any circumstances, be laid out without it, and 

 if necessary neighbors should club together and buy 

 one. For small work a carpenter's level fitted with 

 fine rifle sights does fair work if the rod is not over 

 twenty feet away. Errors will amount to nothing if 

 distance of the rod is reduced to ten feet as most of 

 them will balance each other. Instead of having a 

 rod reading in feet and inches, or feet and tenths of a 

 foot, have it all in inches. The elevation of the tele- 

 scope will average about four feet above ground while 

 the variation of levels will not be over two feet. A 

 rod with the figures starting at three feet above ground 

 and running to five feet will thus give you twenty- 

 four inches which can be marked off in ink if you have 

 no black paint handy. The remainder of the problem, 

 after adjusting the telescope, is about as intricate as 

 going up town with twenty-four cents, buying a five 

 cent cigar, finding a dime and then figuring out your 

 balance in pocket. There is absolutely no excuse for 

 neglecting it because you can't afford to hire a sur- 

 veyor and have on your tongue's end the old stock 

 lie "can't teach an old dog new tricks." Maybe you 

 .have seen the man who can't write his name. His ex- 

 cuse is "didn't have no schoolin'. ' The combination of 

 nine letters that make up John Smith is entirely too 

 great for him. But he has not the slightest difficulty 

 with the thirteen cards that make up a suit and the 

 combinations that make a poker hand. Don't imagine 

 you can't run a level because you did not go to a 

 polytechnical school. Get one and don't lay out a ditch 

 or a bit of land without it. Leveling by the water is 

 too slow where the soil takes much time to dry. The 

 carpenter's level on a beam to be dragged around or 

 an upright on the beam with a plumb bob hanging 

 from it, or the plum bob hanging from the top of a big 

 triangle will do fair work on a small scale, but for 

 work of any size the telescope will soon save you in 

 time and bother all it costs to buy and learn to use it. 



Supreme^ Court Decisions 



Irrigation Cases 



"ABANDONMENT." 



The term "abandonment" as applied to water rights is 

 applicable only to completed appropriations of water, and not 

 to a case where the claimant never acquired a fixed right be- 

 cause of his failure to apply the appropriation to a beneficial 

 use within a reasonable time. 



Conley \. Dyer. Supreme Court of Colorado, 95 Pacific 

 304. 



ACTION FOR WATER RENT. 



In an action by an irrigation company for water rent, 

 where there was evidence of lack of care on plaintiff's part 

 in furnishing water, it was proper to give a charge sub- 

 mitting defendant's right to counterclaim for damages to his 

 crop caused by such lack of care. 



Colorado Canal Co. v. McFarland & Southwell. Court 

 of Civil Appeals of Texas, 109 Southwestern 435. 



SOURCE OF WATER IN INDIAN LANDS 



Where complainants appropriated in Wyoming waters 

 from a creek rising in the Crow Reservation in Montana, 

 complainants' appropriation attached co instante on the 

 reservation being thrown open to settlement, and became 

 prior to the rights of subsequent appropriators settling on 

 such reservation lands. 



Bean v. Morris. Circuit Court of Appeals, 159 Federal 

 851. 



INTERSTATE STREAMS. 



Complainants, by a prior appropriation or diversion in 

 Wyoming of the waters of a nonnavigable stream rising in 

 Montana, acquired the right to continue the diversion of such 

 waters as against a junior appropriator of the waters in 

 Montana; the rights of appropriation not being affected by 

 the interstate character of the stream. 



Bean v. Morris. Circuit Court of Appeals, 159 Federal 

 051. 



Loss OF RIGHT THROUGH NON-USER DEPENDS ON CIRCUM- 

 STANCES. 



What constitutes a reasonable time within which an ap- 

 propriator of water for irrigation must actually apply the 

 same to a beneficial use as against junior appropriators de- 

 pends on the facts and circumstances connected with each 

 particular case. 



Conley v. Dyer. Supreme Court of Colorado, 95 Pacific 

 304. 



DETERMINATION OF RIGHT. 



A person who, with intent to put water to some beneficial 

 use, diverts it from a stream or other natural source of 

 supply, and makes an application thereof within a reasonable 

 time, has a prior right to use a sufficient quantity of water 

 so diverted to supply his needs not to exceed the amount of 

 his appropriation superior to the right of subsequent appro- 

 priators. 



Williams v. Altnow. Supreme Court of Oregon, 95 

 Pacific 200. 



RIPARIAN PROPRIETOR OR APPROPRIATOR. 



While the doctrines of prior appropriation and riparian 

 rights are not so antagonistic that they may not exist in the 

 same locality, a settler upon a nonnavigable stream has an 

 election either to rely upon his rights as riparian proprietor 

 or to make an appropriation of the water if it is free and 

 subject to appropriation, and claim as an appropriator, but he 

 cannot do both. 



Williams v. Altnow. Supreme Court of Oregon, 95 Paci- 

 fic 200. 



DUTIES OF WATER COMMISSIONER. 



It is not the duty of a water commissioner to make any 

 division or distribution of water between the users thereof 

 from the same ditch, and he has no authority to interfere 

 with the internal management of the affairs of a ditch com- 

 pany, though it is his duty to turn into a ditch no more water 

 to which it is entitled under any decree than is necessary to 

 serve the needs of the consumers under such ditch, and to 

 refeuse to turn water into any ditch for the use of one not 

 entitled thereto. 



Cache la Poudre Irrigating Ditch Co. v. Hawley, Com- 

 missioner. Supreme Court of Colorado, 95 Pacific 317. 



IRRIGATION CONTRACT. 



A contract whereby certain stockholders in a ditch com- 

 pany sold their stock to a reservoir company, the vendors to 

 continue in possession of their certificates, and to divert 

 water for the use of their land to the same extent theretofore 

 enjoyed, and the reservoir company to have the right to divert 

 for storage and direct irrigation the difference between the 

 quantity of water actually needed by the vendors and the 

 maximum represented by the certificates in the priorities of 

 the ditch, was invalid as requiring the water rights evidenced 

 by the shares of stock to do double duty. 



Caahe la Poudre Irrigating Ditch Co. v. Hawley, Water 

 Commissioner. Supreme Court of Colorado, 95 Pacific 317. 



IRRIGATION COMPANY CANNOT REQUIRE UNREASONABLE CON- 

 TRACT. 



An irrigation company, authorized to exercise the right 

 of eminent domain, engaged in the business of transporting 

 water from a flowing river or natural stream within those 

 portions of the state where irrigation is beneficial for agri- 

 cultural purposes, which streams belong to the public under 

 the express provisions of Rev. St. 1895, art. 3115, and fur- 

 nishing it for hire to those entitled to its use, is a quasi pub- 

 lic corporation, and cannot limit its liability to the public by 

 requiring unreasonable contracts from those to whom it fur- 

 nishes water. 



Colorado Canal Co. v. McFarland & Southwell. Court 

 of Civil Appeals of Texas, 109 Southwestern 435. 



