THE IRRIGATION AGE. 



987 



Supreme Court Decisions 



Irrigation Cases 



RIGHTS OF PRIOR APPROPTIATOR. 



A prior appropriator may change his point of diversion 

 so long as it does not prejudicially affect the right of any 

 subsequent appropriator. Carlson v. City of Helena. Supreme 

 Court of Montana. 114 Pacific 110. 

 RIPARIAN OWNERS. 



A riparian owner could irrigate his land through a ditch 

 tapping the stroain on adjoining land by the consent of the 

 owner thereof, taking the water from the stream at a point 

 outside of his own land. Redwater Land & Canal Co. v. 

 Jones. Supreme Court of South Dakota. 130 Northwest- 

 ern 85. 

 SURFACE WATER. 



While an upper landowner is entitled to have his surface 

 water discharged upon adjacent lower land according to its 

 natural flow, he cannot change the natural manner of dis- 

 charge by conducting the water by new channels in greater 

 quantities onto the lower lands, thereby increasing the burden 

 of the servient owner. Peck v. Peterson. District Court of 

 Appeal, First District, California. 115 Pacific 327. 

 RIPARIAN RIGHTS. 



That another landowner permitted defendant to construct 

 a ditch across his land to a stream because he believed that 

 defendant as riparian owner could condemn a right of way 

 over his land for taking water would not prevent defendant 

 from subsequently acquiring the right to maintain the ditch 

 over such land by prescription. Logan v. Guichard. Supreme 

 Court of California. 114 Pacific 989. 

 APPROPRIATION. 



A party who does not show that the quantity of water 

 to which he is entitled by a judgment does not reach the head 

 of his ditch, whenever he has occasion to use it, may not com- 

 plain of the judgment awarding a quantity of water to an- 

 other for use, to return to the stream above the head of the 

 party's ditch. Featherman v. Hennessey. Supreme Court of 

 Montana. 113 Pacific 751. 

 TENANT'S DUTY TO PREVENT DAMAGES. 



Where a landlord, renting on shares, agreed to con- 

 struct an irrigation lateral, he was not liable in damages to 

 the tenant for failure to construct such lateral where the 

 tenant could have prevented the injury at a little expense and 

 failed to do so, though the landlord knew of the defects and 

 had an opportunity to repair the same. Poutra v. Martin. 

 Court of Civil Appeals of Texas. 135 Southwestern 725. 



IRRIGATION CUSTOM. 



Where the irrigator contracts with an irrigation company 

 for water knowing that it was furnished under a pumping 

 system, any custom among the users of a natural flow of 

 waters would not apply to prevent the irrigation company 

 from making reasonable regulations as to the time and 

 amount of the flow, provided the amount contracted for was 

 furnished as the circumstances required. Shafford v. White 

 Bluffs Land & Irrigaion Co. Supreme Court of Washington. 

 114 Pacific 883. 

 PREFERENCE TO DOMESTIC PURPOSES. 



Under the provisions of section 3, art. 15, of the Con- 

 stitution of this state, "the right to divert and appropriate 

 the unappropriated waters of any natural stream to beneficial 

 uses shall never be denied. Priority of appropriation shall 

 give the better right as between those using water; but when 

 the waters of any natural stream are not sufficient for the 

 . service of all those desiring the use of the same, those using 

 the water for domestic purposes shall (subject to such limita- 

 tions as may be prescribed by law) have the preference over 

 those claiming for any other purpose." Montpelier Milling 

 Co. v. City of Montpelicr. Supreme Court of Idaho. 113 

 Pacific 741. 

 APPLICATION FOR PERMIT. 



Water Code (Laws 1909, p. 332) i 45, requires one intend- 

 ing to acquire a right to the beneficial use of any water 

 before commencing construction of a ditch to apply to the 

 state engineer for permission to make the appropriation, and 



section 46 requires such application to give the legal subdivi- 

 sions of the land to be irrigated. Section 58 provides that 

 all applications for reservoir permits shall be subject to pro- 

 visions of sections 45 to 51, inclusive, except that an enumera-. 

 tion of any land proposed to be irrigated shall not be required 

 in the primary permit, but the parties proposing to apply for 

 the beneficial use of the water stored in any reservoir shall 

 file an application for a secondary permit in compliance with 

 sections 45 to 51, inclusive. Held, that an application for 

 permit to make an appropriation of certain of the water of 

 P. river was for a permit to use the public waters of the 

 state, though it also asked for a permit to construct a storage 

 reservoir, and was made under sections 45 and 46 as well as 

 under section 58, so that it should give the legal subdivisions 

 of the land to be irrigated, as required by section 46. Cookin- 

 ham v. Lewis. Supreme Court of Oregon. 115 Pacific 342. 

 IRRIGATION DAM 



Defendant operated an irrigation canal constructed by 

 its predecessor, which also owned certain agricultural lands, 

 which were sold to purchasers with a perpetual right to the 

 use of water for irrigation purposes up to a definite quantity, 

 but the defendant was not to be responsible for any de- 

 ficiency caused by the act of God, etc., and could sell water 

 equivalent to the carrying capacity of the canal during the 

 irrigation season, and, in case of shortage, each water right 

 to suffer proportionately. Defendant put in a new dam that 

 impounded the water that had previously gone to waste, and 

 installed a new water wheel for lighting a town with elec- 

 tricity. Held, that plaintiff, in an action for failure to supply 

 him with sufficient water, was entitled to recover, although 

 there was a dry season, when the evidence showed that 

 there would have been sufficient water but for the installation 

 of the new wheel. Evans y. Prosser Falls Land & Power Co 

 Supreme Court of Washington. 113 Pacific 271. 



CONDEMNATION OF WATER RIGHT. 



In proceedings by a town to condemn a water right, 

 all the facts as to the condition of the land and its sur- 

 roundings, its improvements and capabilities, including- the 

 productive character of fruit trees, the character of the 

 soil, and the amount of water supplied to the land by an 

 irrigation ditch, are admissible in determining the injury to 

 the land resulting from the appropriation. Benninghoff v. 

 Town of Palisade. Supreme Court of Colorado. 108 Pa- 

 cific 983. 



APPROPRIATIONS FOR THE WORK OF THE 

 UNITED STATES GEOLOGICAL SURVEY. 



Most of the appropriations for the work of the United 

 States Geological Survey are included in the great govern- 

 ment supply bill known as "An act making appropriations for 

 sundry civil expenses of the government," popularly called 

 the "sundry civil bill." The bill for the fiscal year closing 

 June 30, 1912, contains appropriations for survey work amount- 

 inging to $1,205,520. The principal items are is follows: 



Topographic surveys $350,000 



Geologic surveys 300,000 



Mineral resources of the United States 75,000 



^ Chemical and physical researches 40,000 



Geological maps of the United States 110,000 



Gaging streams, etc 150,000 



Surveying national forests 75,000 



The bill also appropriates $165,000 for printing and bind- 

 ing survey reports, to be expended by the Public Printer. 



In addition to these amounts the sum of $100,000 for sur- 

 veys in Alaska was included in the urgent deficiency act, 

 approved December 23, 1910, and the sum of $37,400 for 

 rents was appropriated in the "legislative bill," making a 

 grand total of about one and a half million dollars. 



J. P. Newell, colonist agent for the Hardscrabble 

 irrigation district, has taken several automobile parties 

 from Canyon City out to Mountain View Park to inspect 

 the land soon to be brought under cultivation in that 

 portion of' the country. 



* * * 



Four irrigation projects filed papers with the county 

 clerk in Pueblo in a period of twenty-four hours. All of 

 the projects are to be located in Pueblo county, and will 

 mean the expenditure of about $75,000. 



