706 



THE IRRIGATION AGE. 



justify the territorial engineer, under Laws 1907, c. 49, 

 regulating the use and distribution of waters, to refuse the 

 owners of the other land the privilege of irrigating their 

 land under a plan which will increase the cost of irriga- 

 tion to the owners of the thousand acres. Young & Nor- 

 ton v. Hinderlider. Supreme Court of New Mexico. HO 

 Pacific 1045. 

 SEEPAGE WATER. 



Where seepage or spring water appeared on the land 

 of H. in 1906 from some unknown source at a place where 

 there had been no seepage or spring water for at least 

 five years before, and thereafter continued to flow in 

 various quantities until a portion was permitted to flow 

 on the land of D., whom H. agreed might use the surplus 

 water, it was not subject to appropriation and distribution 

 as provided by Laws 1907, c. 49; any surplus remaining 

 after the reasonable necessities of H. and D. had been 

 satisfied being distributable under the general law of prior 

 appropriation. Vandenvork (Territory of Neiv Mexico, In- 

 tervener), \. Heives. Supreme Court of New Mexico. 110 

 Pacific 567. 

 NOTICE OF APPROPRIATION. 



A notice of appropriation of water within a United 

 States forest reservation, which states all the matters re- 

 quired by Civ. Code, Sec. 1415, relating to the notice of 

 appropriation of water, and which states the points of di- 

 version as located on a designated section and township 

 which the court judicially knows is within a reservation, 

 is sufficient within section 1422, providing that where the 

 place of intended diversion is within a reservation, and is 

 so shown in the notice of appropriation, the claimant shall 

 have a specified time after the grant of authority to oc- 

 cupy and use the reservation for such intended purpose 

 with which to commence the construction of the works, 

 etc. Wishon v. Globe Light & Pozver Co. Supreme Court 

 of California. 110 Pacific 290. 

 RIGHTS OF RIPARIAN OWNERS. 



An operator of a sawmill on a stream threw sawdust 

 into the stream, so that the same was deposited in it and in 

 springs near to it. The deposits discolored the water, and 

 in warm weather the decaying sawdust gave it an offen- 

 sive odor. Live stock in some instances refused to drink 

 the water, and it was less fit for domestic purposes and 

 was unwholesome. Physicians believed that the decaying 

 sawdust deposits affected the purity of the water, and 

 generally caused disease along the streams where found. 

 Held, that the use of the stream was in violation of the 

 rights of a lower riparian owner, who could sue to restrain 

 such use. Shoffner v. Sutherland. Supreme Court of Ap- 

 peals of Virginia. 68 Southeastern 996. 

 TERRITORIAL ENGINEER. 



Laws 1907, c. 49, Sec. 12, provides that the territorial 

 engineer shall have supervision of the apportionment of 

 the water of his territory according to licenses issued by 

 him and his predecessors and the adjudications of the 

 courts. Held, that under section 1 of the act, providing 

 that all natural waters flowing in streams and water 

 courses, whether perennial or torrential, within the terri- 

 tory, belong to the public and are subject to appropriation 

 for beneficial use, the jurisdiction of the territorial en- 

 gineer under section 12 only related to public unappro- 

 priated waters within the territory, and had no application 

 to seepage or spring water arising on the land of a pro- 

 prietor from an unknown source. Vanderwork (Territory 

 of Nnv Mexico, Intervener) v. Hewes. Supreme Court of 

 New Mexico. 110 Pacific 567. 

 DENIAL OF PERMIT BY TERRITORIAL ENGINEER. 



Laws 1907, c. 49, regulating the use and disposition of 

 waters, making all natural waters in streams public waters. 

 and authorizing the territorial engineer to deny an appli- 

 cation for a permit to appropriate waters, if in his opinion 

 the approval will be contrary to the public interest, does 

 not limit the power to reject an application to a case in 

 which the proposed project would be a menace to the pub- 

 lic health or safety, and the fact that the statute is de- 

 signed to secure the greatest possible benefit from the 

 waters for the public must be borne in mind in construing 

 the statute, and, where there is available unappropriated 

 water of a river for only a few thousand acres of land, 

 it is contrary to the public interest that a project for irri- 

 gating a much larger territory without water shall receive 

 the approval of the engineer. Young & Norton v. Hinder- 

 lider. Supreme Court of New Mexico. 110 Pacific 1045. 



WRONGFUL TAKING OF WATER. 



In a prosecution for the wrongful taking of water from 

 an irrigating canal, the information in failing to allege owner- 

 ship of the canal was fatally defective, the statute under which 

 the suit was brought being analogous to those of theft and 

 malicious mischief involving a trespass upon the property of 

 others. Dolan v. State. Court of Criminal Appeals of Texas. 

 INTERFERENCE WITH CANAL. 



It was no defense to a suit by plaintiff reservoir com- 

 pany, to enjoin interference with its water in the canal of 

 the irrigation company, that defendants had the right to use 

 water as against the irrigation company, nor that plaintiff 

 was organized by that company's stockholders to carry water 

 through the canal and knew of defendants' rights, nor that 

 plaintiff's waters were commingled with those to which de- 

 fendants were entitled, though the irrigation company neg- 

 lected its duty to distribute the commingled waters. Hackett 

 v. Larimer & Weld Reservoir Co. Supreme Court of Colo- 

 rado. 109 Pacific 965. 

 PRIOR APROPRIATORS. 



A river divided into two branches, K. and S., between 

 which a natural Channel opening into K. existed. An artificial 

 channel was dug, connecting S. with the natural channel, and, 

 by means thereof, the waters of S. were diverted to K. for 

 use below the mouth of the natural channel. When the 

 water was low in S. river at the point of diversion, it would 

 not reach the point of an attempted diversion by another. 

 Held, that the upper appropriator of the waters was a prior 

 appropriator as against the one who attempted to divert the 

 waters of S. Evans Ditch Co. v. Lakeside Ditch Co. Court 

 of Appeal, Third District, California. 108 Pacific 1027. 

 DIVERSION OF ADDITIONAL WATER. 



A riparian owner learned that a canal company intended 

 to divert larger quantities of water of a stream than it had 

 theretofore claimed. During the same month he filed a sup- 

 plemental complaint in a suit to prevent the proposed in- 

 creased diversion. On being stricken, he commenced a suit 

 for that purpose. No appropriation of the waters had been 

 made by the company prior to the commencement of the 

 action. Held, that the riparian owner was not estopped from 

 invoking the aid of equity to restrain the company from 

 diverting additional water from the stream. Miller & Lux v. 

 Madera Canal & Irrigation Co. Supreme Court of California. 

 99 Pacific 502. 

 DETERMINATION OF PRIORITIES. 



The special proceeding outlined by Mills' Ann. St. 

 2421, providing that no recognition of any priority of water 

 rights shall be regarded by any water commissioner in dis- 

 tributing water until claimant by application to the proper 

 court has obtained leave and made proof thereof and received 

 his decree therefor, is not a proper one to sustain a claim of 

 priority under section 2268 (Rev. St. 1908, 3176), giving a 

 priority to the owner of a meadow watered by the natural 

 overflow of the stream whose supply is diminished by the 

 construction of irrigation ditches by others, where such priority 

 would relate back to an earlier date, and so injure the rights 

 of others whose priorities had been adjudicated in a statutory 

 proceeding. Broad Run Inv. Co. v. Deuel & Snyder Improve- 

 ment Co. Supreme Court of Colorado. 108 Pacific 755. 

 APPROPRIATION OF WATER. 



The purpose of Civ. Code, 1422, fixing the time within 

 which to commence excavations on public reservations for the 

 purpose of making a diversion of the water of a stream, is to 

 protect claimants unable to proceed with the work necessary 

 to perfect their claims by reason of the fact that the place 

 of intended diversion or a part of the route of intended con- 

 veyance is within a national reservation, pending the pro- 

 curement, with due diligence, of the authority from the federal 

 government, and the provision that the fact that the place of 

 intended diversion is within a reservation shall be shown in 

 the notice is inserted simply for the purpose of requiring 

 the notice itself to furnish evidence of the fact and of hold- 

 ing the claimant to a specific point of diversion within a 

 reservation. Wishon v. Globe Light & Power Co. Supreme 

 Court of California. 110 Pacific 290. 

 DIVF.RSION OF OVERFLOW 



The fact that plaintiff's low land would be greatly bene- 

 fited by its overflow from an abutting stream during flood 

 season does not entitle him to restrain diversion of a reason- 

 able amount of water for irrigation by upper riparian owners, 

 though such diversion would diminish such overflow. Turner 

 v. James Canal Co. Supreme Court of California. 99 Pacific 520. 



