THE IRKIGATION AGE. 



947 



v. Heitzeg. Supreme Court of California. 114 Pacific 816. 

 ADVERSE USE. 



The use of water by a subsequent appropriator does 

 not begin to be "adverse'," as against a prior appropriator, 

 unless it results in a deprivation to such appropriator, or 

 amounts to such an invasion of his rights as will enable 

 him at any time during the statutory period to maintain an 

 action against the subsequent appropriator. Featherman v. 

 Hennessey. Supreme Court of Montana. 113 Pacific 751. 

 JURISDICTION OF STATE ENGINEER. 



A project to irrigate lands in New Mexico from the 

 water of a natural stream running from Colorado into New 

 Mexico, when the point of diversion, the head gate, and 

 about six miles of the irrigation ditch are in Colorado, is 

 not within the jurisdiction of the territorial engineer of New 

 Mexico, and he is without authority to issue a permit for 

 such a project. Turley v. Furman. Supreme Court of New 

 Mexico. 114 Pacific 278. 

 LEASE OF WATER PRIVILEGE. 



The owner of semiarid land, by executing a contract of 

 lease therefor and granting the right to use an appurtenant 

 water privilege, impliedly covenants that he will do nothing 

 to interfere with the tenant's quiet enjoyment of the real 

 estate or of the water privilege during the term. North 

 Platte Land & Water Co. v. Arnett. Supreme Court of 

 Nebraska. 130 Northwestern 752. 

 PERMIT OF USEK. 



Defendant by agreeing at plaintiff's request that he and 

 his wife surrender all their rights as riparian owners in a 

 creek except those exercised by a certain ditch to get his 

 wife, in whose name the property stood, to waive such rights 

 did not amount to an acknowledgment of plaintiff's right to 

 prevent the diversion of water through such ditch so as to 

 prevent defendant from claiming a prescriptive right to main- 

 tain the ditch. Logan v. Guichard. Supreme Court of Cali- 

 fonia. 114 Pacific 989. 

 BREACH OF CONTRACT. 



Where one leased land from an irrigation company, the 

 contract especially providing that each party should be the 

 owner in fee simple of one-half of the crop, and that the 

 company should furnish irrigation water for the crop, the 

 lessee by dividing the crop and giving the lessor one-half 

 was not estopped from claiming damages from the lessor for 

 breach of the contract to furnish water; no such intent 

 appearing from the contract. Beaumont Irrigating Company 

 v. Gregory. Court of Civil Appeals of Texas. 136 South- 

 western 545. 

 CHANGE IN METHOD OF APPROPRIATION. 



Where the withdrawal of upappropriated water from a 

 lake by subsequent appropriators required a change of 

 methods or means by which prior appropriators were enabled 

 to withdraw their water from a lake, and this entailed addi- 

 tional expense, such additional expense should be borne by 

 the subsequent appropriators as a condition to their right to 

 appropriate the unappropriated water. Salt Lake City v. 

 Gardner. Supreme Court of Utah. 114 Pacific 147. 

 COMPENSATION. 



It was the intention of the framers of the Constitution, 

 by the provisions of this section, to provide that waters pre- 

 viously appropriated for manufacturing purposes may be 

 taken and appropriated for domestic use, upon due and fair 

 compensation therefor ; but it was not the intention to pro- 

 vide that water appropriated for manufacturing purposes 

 could thereafter arbitrarily and without compensation be ap- 

 propriated for domestic purposes. Montfelier Milling Co. 

 v. City of Montfelier. Supreme Court of Idaho. 113 Pacific 

 471. 

 DITCH AGREEMENT. 



Defendant agreed with plaintiff that plaintiff might make 

 a ditch across defendant's land to convey water for plain- 

 tiff's crops, defendant to have the right to carry his own 

 water in the ditch, and to use plaintiff's water only when 

 not required by plaintiff. Held, in an action for depriving 

 plaintiff's crops of the necessary water, that it was no defense 

 that plaintiff did not have a valid appropriation of the water 

 claimed by him, so long as it was not defendant's. Dalton v. 

 Kelsey. Supreme Court of Oregon. 114 Pacific 464. 

 PRIORITY OF OWNERSHIP. 



Riparian owners who located on claims in 1876, and were 

 residing thereon on February 28, 1877, when the lands were 

 opened to public settlement, and continued to reside thereon 



until after patents were issued to them, had a claim to the 

 water rights prior to the water rights located in 1878 by 

 another, the patents relating back to the date of the 

 settlement, so that a provision in the patents that they were 

 subject to vested and accrued water rights did not apply. 

 Redwaler Land & Canal Co. v. Jones. Supreme Court of 

 South Dakota. 130 Northwestern 85. 

 INTERMITTENT FLOW. 



Under an irrigation contract providing that the time and 

 manner of delivering and regulating the supply might be pre- 

 scribed by the water company by regulations made from time 

 to time, and that it might shut off water whenever it deemed 

 it necessary for repairs, a regulation providing for an inter- 

 mittent flow by dividing the consumers into two groups, and 

 delivering water to one group for three days, and to the other 

 for three days, could not be said as a matter of law to be 

 unreasonable, unless the amount of water agreed upon was 

 not furnished, in view of the rule that water contracts are 

 mutual and will be construed in the light of the necessities 

 of the parties, in case of dispute as to the amount. Shafford 

 v. White Bluffs Land 6- Irrigation Co. Supreme Court of 

 Washington. 114 Pacific 883. 

 IRRIGATION RIGHTS 



Where, in a contest over rights of water for irrigation 

 purposes, the court found that a hundred inches of water was 

 necessary for the proper irrigation of J.'s riparian lands, it 

 was not essential that the amount of water in the stream or 

 the number of persons holding riparian rights should be 

 proved, to define the amount of J.'s reasonable use, as against 

 plaintiff, whose only right to the water as against J. was to 

 prevent him from wasting it. Lone Tree Ditch Co. v. Cyclone 

 Ditch Co. Supreme Court of South Dakota. 128 Northwest- 

 ern 596. 

 INJUNCTION AGAINST DIVERSION 



Under Rev. St. 1895, art. 2989, as amended by Laws 31st 

 Leg. c. 34, providing for the grant of a writ of injunction 

 where it shall appear that the party applying for the writ is 

 entitled to the relief demanded, and such relief or any part 

 thereof requires the restraint of some act prejudicial to the 

 applicant, and Rev. St. 1895, art. 3115 et seq., declaring that 

 unappropriated waters of flowing rivers may be acquired for 

 irrigation and other purposes, a lower riparian owner is not 

 entitled to a temporary injunction against the diversion of 

 water for the irrigation of nonriparian land in the absence of 

 a showing that his land is now being used or is intended for 

 immediate use or is prepared for agricultural or other pur- 

 poses rendering the use of the water of the river necessary 

 and beneficial. Biggs v. Lefflngwell. Court of Civil Appeals 

 of Texas. 132 Southwestern 902. 

 OBSTRUCTION OF IRRIGATION DITCH 



Where the complaint, in an action to quiet title to an 

 irrigation ditch, and to enjoin interference therewith, and for 

 damages for a wrongful interference, showed that the object 

 of the suit was to prevent defendant from inflicting on plaintiff, 

 irreparable injury, and to obtain compensation for damages al- 

 ready individually suffered by him from the acts of defendant, 

 allegations of the complaint that plaintiff had conveyed to 

 third person tracts of land with a distinct agreement that the 

 tracts were entitled to receive the benefits of irrigation by 

 means of the ditch, and that defendant's obstruction of the 

 ditch would subject plaintiff to litigation, did not require that 

 the third persons be made parties, since such allegations merely 

 disclosed the extent of the injury to plaintiff through the con- 

 duct of defendant, and plaintiff could obtain equitable relief 

 and compensation for the damages suffered by him. Sisk v. 

 Casn-ell. Court of Appeal, Third District, California. 112 

 Pacific 185. 



The Milford Improvement Company of Salt Lake has 

 filed articles of incorporation, showing a capital stock of 

 $10.000. They will carry on a construction, irrigation and 

 general farm business. 



