THE IRRIGATION AGE. 



63 



ABANDONMENT 



Where an irrigation company began work irrigating 40 

 acres of land at a time and then 20 acres, and then abandoned 

 the irrigation of the land altogether, there was no such con- 

 tinuous use of the water taken for irrigation purposes as to 

 confirm the original appropriation. Still v. Palouse Irriga- 

 tion & Power Co., Supreme Court of Washington, 117 Pacific 

 466. 



CHANNEL or WATERCOURSE 



Where, though a water course spread out over a meadow 

 in delta formation and was broken up into several channels, 

 it could be identified on the surface, and flowed in a defined 

 course through low depressions, it was a natural watercourse, 

 and subject to appropriation by the landowner, though there 

 was no definitely defined channel on the surface. Anderson 

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

 Federal 818. 



DELAY IN COMPLETING WORK 



Under Rem. & Bal. Code, 6318, providing that an appro- 

 priator of waters of a stream must diligently and continuously 

 prosecute the construction of the works to completion, an 

 irrigation company which after five years of construction and 

 delay failed to complete its works had not used sufficient dili- 

 gence to confirm an appropriation. Still v. Palouse Irriga- 

 tion & Power Co., Supreme Court of Washington, 117 Pacific 

 466. 



APPROPRIATION OF WATER 



Section 3292, Rev. Codes, provides that when payment 

 is made upon a perpetual water right the water right shall 

 remain a part of the tract of land for which the same is pur- 

 chased, and that the title to the use of said water can never 

 be affected in any way by any subsequent transfer of the canal 

 or ditch company, or by any subsequent foreclosure of any 

 bond, mortgage, or other lien. Hewitt v. Great Western 

 Sugar Co., Supreme Court of Idaho, 118 Pacific 296. 



CONSTRUCTION OF IRRIGATION DITCHES 



Where A institutes proceedings to condemn the lands of 

 B for the purpose of constructing an irrigation ditch over 

 lands of B, which are already traversed by a prior ditch, 

 which has been extended to the line of A's land, injunction 

 is the proper remedy for B ; and in such a suit the burden is 

 upon A to show that the first ditch cannot be made to answer 

 the purpose for which the second ditch is desired or intended. 

 H'alker v. Anderson, Supreme Court of Nebraska, 132 North- 

 western 937. 



RIGHT TO USE OF WATER 



Where a person, not a party to a statutory proceeding to 

 determine the priorities of right to the use of water for irri- 

 gation, appeared voluntarily after decree and objected to a 

 clause therein establishing a right of way over his land for 

 a ditch, and filed a petition praying for a vacation of the 

 clause, an appeal by him from an adverse order must be taken 

 and perfected in the manner prescribed by the statute author- 

 izing the proceeding, and not in the manner prescribed for 

 the taking of appeals in civil actions. Haines v. Fearnley. 

 Supreme Court of Colorado, 117 Pacific 162. 



ESTABLISHMENT OF IRRIGATION DITCHES 



In a suit to enjoin proceedings instituted by one land- 

 owner to construct a ditch for irrigation purposes across the 

 lands of an adjoining owner, which are already traversed by 

 another ditch, the question is not whether the first ditch is 

 then in a sufficient state of repair or in a condition to answer 

 the purpose for which the second ditch is desired or intended ; 

 the question is, Can the first ditch be made to answer such 

 purpose? If so, no right exists to construct a second ditch. 

 Walker v. Anderson, Supreme Court of Nebraska, 132 North- 

 western 937. 



VALIDITY OF IRRIGATION CONTRACT 



One who merely owned an irrigation canal not shown to 

 have been constructed under Rev. St. 1895, art. 3125, impos- 

 ing on the owner certain duties as to furnishing water, with 

 a lateral running through plaintiff's land with his consent, 

 and who agreed to furnish plaintiff water to irrigate his 

 rice crop, could make a valid contract limiting damages from 

 his failure to do so to a certain sum per acre ; the irrigation 

 plant owner not undertaking the discharge of a public duty, 

 so that the reasonableness of the provision of the contract is 

 for the parties to decide. Granger v. Kishi, Court of Civil 

 Appeals of Texas, 139 Southwestern 1002. 



ADVERSE CLAIM 



Where defendants claimed a prior right to the waters of 

 a stream by adverse possession, evidence that on one occasion, 

 when plaintiff's ditch tender had turned the waters of the 

 creek into plaintiff's ditch, C, acting for defendants, imme- 

 diately caused the waters to be turned back, and on meeting 

 the ditch tender threatened him with violence if he ever 

 interfered with the water again, and stated to him that if his 

 employer wanted the water he should come up and arrange 

 for it, to which the ditch tender apologized and promised 

 never to interfere with the water again, was admissible as 

 evidence of defendants' continued assertion of right made to 

 an agent of the adverse claimant. Edson & Foulke Co. v. 

 Winsell, Supreme Court of California, 118 Pacific 243. 



IRRIGATION COMPANIES 



Rev. St. 1895, art. 3125, authorizes corporations to be 

 formed to operate canals to conduct water to persons entitled 

 thereto for irrigation, with power to make contracts for 

 the sale of permanent water rights, and requires that 

 all persons owning land contiguous to any irrigation canal 

 who shall have secured the right to use the water in such 

 canal shall be entitled to be supplied therefrom pursuant to 

 their contracts, and, if the canal and landowners fail to agree 

 upon the price, the canal operator shall furnish necessary 

 water to the landowners at such prices as may be reasonable 

 and just, and other articles provide for the condemnation of 

 land for irrigation canals. Held, that one maintaining an irri- 

 gation canal under the statute could not impose unjust or 

 unreasonable terms by contract upon water users ; any such 

 terms being void. Granijcr r. Kishi, Court of Civil Appeals 

 of Texas, 139 Southwestern 1002. 



IRRIGATION RESERVOIR ON SCHOOL LANDS 



Act March 9, 1895 (Acts 24th Leg. c. 21), makes unap- 

 propriated waters of streams public property subject to appro- 

 priation for irrigation purposes, provides for the construction 

 of dams or reservoirs for the storage of such waters for irri- 

 gation, and authorizes the formation of corporations to con- 

 struct and maintain ditches, reservoirs, and dams for irriga- 

 tion purposes. An irrigation corporation sought to establish 

 dams and reservoirs on public school lands. No land suitable 

 for the construction of a reservoir could be found within 

 40 miles of the one located by the corporation, so that, unless 

 the corporation could establish reservoir sites on public school 

 lands, it could not accomplish the purpose of the act. Held, 

 that the corporation had, under the act, the right to acquire 

 an easement in the school lands for the purpose of a dam 

 and reservoir site as granted by implication. Imperial Irr. 

 Co. v. Jayne, Supreme Court of Texas, 138 Southwestern 575. 



STOCKHOLDERS IN IRRIGATION SYSTEM 



Defendant, who had purchased land within an irrigation 

 system being constructed under a contract with the state, 

 bought stock in the corporation organized to maintain and 

 operate such system which entitled him to water for irriga- 

 tion of his land, entering into a contract by which he made 

 an initial payment and agreed to pay the remainder in annual 

 installments. The contract provided that he should pay the 

 first installment, with interest on all, November 1st following, 

 but further, in accordance with the requirement of the con- 

 tract With the state for construction of the system, that inter- 

 est should be payable from April 1st if water was available 

 for irrigation of the land during the irrigation season, but, 

 if not, to commence when such water was available ; that "no 

 payment other than the initial payment, and no interest shall 

 be required to be paid under this contract until the water is 

 available * * * and such water must be available at the 

 beginning of the irrigation season in order to make such 

 payments become due, and all payments and interest * * * 

 shall be advanced in time according to the delay in the deliv- 

 ery of the said water." The contract was secured by a lien 

 on the land and with other like contracts, and, as provided 

 therein, was assigned to a trustee to secure bonds of the cor- 

 poration. The irrigation season extended from April 1st to 

 November 1st, and water was not available for defendant's 

 land until May 14th. Held that, under such contract, no pay- 

 ment of interest or principal became due or collectible by the 

 assignee until one year from the 1st of the ensuing November, 

 and that interest commenced to run from the 1st of April of 

 the next season. Continental & Commercial Trust & Savings 

 Bank v. McCartv, U. S. Circuit Court of Appeals, 188 Federal 

 273. 



