62 



THE IRRIGATION AGE. 



Supreme Court Decisions 



Irrigation Cases 



PERCOLATING WATERS 



The findings in a suit to enjoin defendant from pumping 

 water from its wells on its lands adjacent to plaintiff's lands 

 for irrigation of remote lands, that underlying the lands in 

 controversy, including the lands of plaintiff and extending to 

 the foot of the mountains, are water-bearing strata, that an 

 almost impervious dike which extends across the tract arrests 

 the progress of the water underlying plaintiff's land, that the 

 subterranean waters are supplied by rains falling on the 

 mountains, and find their way into the water-bearing strata 

 and percolate through the same, that the waters in the water- 

 bearing strata underlying the lands of plaintiff and other 

 lands in the vicinity, including the lands in which defendant's 

 pump is situated, are, in their natural state, under pressure 

 from the head of the waters near the mountains, etc., show 

 a common supply of percolating waters lying in continuous 

 strata saturated with water and extending under the lands 

 of the parties, and justify relief to plaintiff. Burr v. Maclay 

 Rancho Water Co. (Hill, Intervener), Supreme Court of Cali- 

 fornia, 116 Pacific 715. 

 NEW APPROPRIATIONS 



Where deeds executed by riparian owners conveyed land 

 on both sides of a river, with the right to the grantee to 

 divert such portions of the water as might be necessary for 

 irrigating purposes along the line of a millrace, and also to 

 propel by water power any flour or other mill which might 

 thereafter be constructed by the grantee, his heirs or assigns, 

 at or near the town of E., such language conveyed only a 

 right to a partial diversion of the stream, and amounted to a 

 license to appropriate only such water as was sufficient for the 

 enterprise then in view, as actually applied to a useful pur- 

 pose, within a reasonable time, so that additional water sub- 

 sequently required, either for a new enterprise or a material 

 enlargement of the old one, would constitute a new appro- 

 priation as against others who had appropriated water from 

 the stream in the meantime. Andrews v. Donnelly, Supreme 

 Court of Oregon, 116 Pacific 569. 

 BREACH OF WARRANTY OF PUMP 



Where defendant purchased a pump from plaintiff after 

 fully explaining all the requirements and plaintiff assured de- 

 fendant that the pump would operate without pulsation, jar, 

 or water hammer in the pipes as required, and, when installed, 

 the pump would not carry a constant load and deliver water 

 without pulsation, but caused water hammer in the pipes and 

 was not reasonably fit for the purpose intended, there being a 

 breach of both an express and implied warranty contemplated 

 by Civ. Code, Sees. 1763-1766, 1770, and 1786, and, there being 

 evidence justifying a reasonable inference that it was intended 

 that such warranties should be regarded as a condition prece- 

 dent to the sale, defendant was entitled to rescind and re- 

 cover the money paid. Luitiueiler Pumping Engine Co. v. 

 Ukiah Water & Improvement Co., District Court of Appeals, 

 Third District, California, 116 Pacific 707. 

 DITCH RIGHTS A CLOUD ON TITLE 



Where land was subject by a deed to an easement giving 

 another right to enter thereon at any point by ditch or other 

 waterway, conduct water from a certain creek for any in- 

 dustrial purpose and for irrigation, and to establish any suit- 

 able ditch, flume, or waterway not exceeding certain dimen- 

 sions, and the further right to enter on the lands, and by 

 suitable pipes placed in the ground conduct water from any 

 springs thereon, subject to like rights granted to another, the 

 owner was unable to convey "a full fee-simple title" as pro- 

 vided by the '.erms of a contract of sale. Wingard v. Cope- 

 land, Supreme Court of Washington, 116 Pacific 670. 

 PRIORITIES BY RIGHT 



In view of the purposes of the Water Code (Laws 1909, 

 p. 333) Sec. 47, as shown by the history of its enactment, the 

 prior filing of an application for waters, etc., only gives 

 priority of right where the application is for a public use 

 available to the applicant or for a private use as by a settler, 

 and the provisions of the act as to the application are fulfilled ; 

 the provision that no application shall lose its priority be- 



cause of defects in the application which are remedied within 

 30 days being the only reference to priority of filing. Cook- 

 inham v. Lewis, Supreme Court of Oregon, 115 Pacific 342. 

 CONVEYANCE OF WATER RIGHTS 



Where claimant sold his stock in an irrigation company 

 to his co-owner, and conveyed to the corporation a right of 

 way over certain land for a spillway in consideration of $500 

 payable on terms and $35,000 in water rights, and the cor- 

 poration defaulted in its contract to furnish water under the 

 rights, and it was subsequently held that the conveyance of 

 such water rights was invalid, claimant, having acted in good 

 faith, was entitled to a reconveyance of the spillway as against 

 defendant's receiver for failure of consideration. Pederson 

 v. North Yakima 6f East Selah Irr. Co., Supreme Court of 

 Washington, 116 Pacific 279. 

 RIPARIAN PROPRIETORS 



While a riparian proprietor is entitled to the ordinary and 

 usual flow of a stream so long as it is of beneficial use to him, 

 including under some circumstances flood waters reasonably 

 to be expected during the ordinary seasons, a lower riparian 

 proprietor was not entitled to restrain diversion of the flood 

 waters of a stream by a nonriparian proprietor, where he was 

 not injured thereby. Eastern Oregon Land Co. v. Willow 

 River Land & Irr. Co., U. S. Circuit Court, District of Ore- 

 gon, 187 Federal 466. 

 RECEIVERSHIP OF CANAL COMPANY 



Where the canal furnished by defendant, under obliga- 

 tion to furnish a canal suitable to carry the quantity of water 

 to which plaintiff had a prior right, was ample and safely 

 carried more than that quantity, the court, at the suit of plain- 

 tiff, was without authority to appoint a receiver to repair the 

 canal, and the costs of the receiver appointed were properly 

 charged to plaintiff. West Riverside S50-Inch Water Co. v. 

 Rogers, District Court of Appeals, Second District, Califor- 

 nia, 116 Pacific 683. 

 PREVENTING OVERFLOW 



Riparian owners of lands abutting upon a stream, whether 

 navigable or nonnavigable, have the right to place and main- 

 tain upon their lands such barriers as will prevent their lands 

 from being overflowed and damaged by the stream, and for 

 the purpose of keeping the same within its natural channel. 

 Fischer v. Davis, Supreme Court of Idaho, 116 Pacific 412. 

 FLOOD WATERS 



Waters escaping from the banks of a river at times of 

 flood are "surface waters," and not waters of the stream, and 

 a property owner may defend himself against the same, 

 though in so doing he may cause injury to another, unless 

 he protects himself from injury by the waters. Harvey v. 

 Northern Pac. Ry. Co., Supreme Court of Washington, 116 

 Pacific 464. 

 OVERFLOWS 



An upper riparian owner cannot obstruct a stream so 

 that the lower riparian owners will have no benefit from the 

 overflows which occur regularly in certain seasons. Still v, 

 Palouse Irrigation & Poiver Co., Supreme Court of Washing- 

 ton, 117 Pacific 466. 

 EASEMENT TO MAINTAIN IRRIGATION DITCH 



Where the owner of land voluntarily consents to the con- 

 struction of an irrigation ditch across the same, the right of 

 the owner of the ditch to maintain and use it as built is abso- 

 lute as against all persons. Arthur Irr Co. v. Strayer, 

 Supreme Court of Colorado, 115 Pacific 724. 

 ABANDONMENT 



Abandonment of an appropriation of water for irrigation 

 is a question of intention to be evidenced by overt acts ; but, 

 when such overt acts appear, the right to appropriate water 

 ceases and cannot be resumed as against intervening rights 

 of others. Anderson Land & Stock Co. v McConnell, Circuit 

 Court, Nevada, 188 Federal 818. 

 STATE ENGINEER 



The state engineer has no right, power, or authority to 

 interfere with vested rights, or to grant a permit for the 

 appropriation and diversion of the water of a stream, where 

 the same has already been diverted and applied to a beneficial 

 use. Nielson v. Parker, Supreme Court of Idaho, 115 Pacific 

 488. 

 RIPARIAN OWNERSHIP 



In Nevada the doctrine of riparian ownership as a founda- 

 tion for rights to water 1 has been abandoned. Anderson 

 Land & Stock Co. v. McConnell, Circuit Court, Nevada, 188 

 Federal 818. 



