148 



THE IREIGATION AGE. 



gallons of water a day, or a specific quantity, but is a grant 

 of all the water flowing from the three wells, with an agree- 

 ment to endeavor to keep that flow up to 110,000 gallons by 

 certain means, and to the extent of one-third of the water 

 obtained by such means. Jones v. Van Nuys, Supreme Court 

 of California, 118 Pacific 541. 

 CONDEMNATION OF LAND FOR DAM SITE 



In a proceeding to condemn land for a dam site in con- 

 nection with an irrigation project, opinions of expert engi- 

 neers as to the value of the land, taking into consideration 

 the cost of the land to be utilized, the cost of construction 

 and maintenance of the works, the feasibility of utilizing the 

 water, the prospective amount available, the lands available 

 for irrigation, their value, the value of the water furnished, 

 etc., were admissible under the rule that in determining the 

 value of land to be condemned it must be viewed, not merely 

 with reference to the uses to which it is at the time applied, 

 but with reference also to such uses to which it is manifestly 

 adapted, considering its capability as well as its availability, 

 disregarding, however, its value for any specific purpose as 

 an independent fact. Weiser Valley Land & Water Co. v. 

 Ryan, U. S. Circuit Court of Appeals, 190 Federal 417. 

 JURISDICTION TO RESTRAIN FLOODING^ 



Where a water company has constructed a dam across a 

 stream for the purpose of impounding water, and the dam 

 or structure results in the flooding of the lands of another, 

 and an action for condemnation of such land is thereafter 

 prosecuted in the federal court, and a judgment is entered 

 in favor of the landowner for the value of the land taken, 

 and the company thereupon appeals to the United States 

 Circuit Court of Appeals, the state court has the jurisdiction 

 to issue an injunction to restrain such company from flood- 

 ing and submerging the land sought to be condemned until 

 such time as the value thereof has been paid to the landowner, 

 or into court for his use and benefit, as provided by law. In 

 such case, there is no conflict of jurisdiction between the 

 state and the federal courts, and no rule of law or comity 

 requires the state court to desist or refrain from taking juris- 

 diction for the purpose of protecting the landowner in his 

 ownership and right of possession. Ryan v. Weiser Valley 

 Land & Water Co., Supreme Court of Idaho, 118 Pacific 769. 

 MEANS FOR DEVELOPING WATER 



A contract, granting all the water flowing from three 

 artesian wells on a certain five acres, with the right to con- 

 duct it, at the expense of the grantees, from the wells by pipes 

 inserted into the wells between two and three feet below 

 the surface of the ground, and providing that, if the wells fail 

 to supply 110,000 gallons a day, the grantor will, "from the 

 water rising or flowing from or upon said five acres, or that 

 can be developed or obtained from said five acres, immediately 

 at his own expense" increase the stream of water for the 

 grantees to a flow of 110,000 gallons a day, but that the gran- 

 tor shall not be obliged to furnish the grantee more than a 

 third of all the water that "may be flowing on or from 

 said five acres, or that can be developed from or obtained by 

 putting down as many wells as can be safely made * * * 

 to a depth of from 20 to 50 feet, at least one-half of said 

 wells to be 50 feet deep" ; and that, if after sinking them suffi- 

 cient water shall not be developed to furnish the grantees 

 with 110,000 gallons, they may demand that the wells shall 

 be so deepened as to obtain such supply for them, they to 

 bear a third of the expense thereof; and nowhere mentioning 

 the employment of artificial means to furnish the grantees 

 water from the wells to be sunk or deepened, or the expense 

 of any such thing does not contemplate that the grantor 

 shall install a pumping plant, if sufficient water cannot be 

 developed without it, though with it enough can be developed. 

 Jones v. Van Nuys, Supreme Court of California, 118 Pacific 

 541. 

 EFFECT OF APPROPTIATION OF WATER RIGHT 



Whenever a water right, as defined by the Constitution, 

 is acquired under the provisions of Rev. Codes, 3292. the 

 owner of th'e tract of land where the water is applied, his 

 heirs or assigns, shall forever be entitled to the use of the 

 water necessary to properly irrigate the same, by complying 

 with such reasonable regulations as may be agreed upon or 

 as may from time to time be imposed by law ; and the pay- 

 ment for such water right shall be a release of any bond 

 or mortgage upon the property of the company from whom 

 such water right is acquired, or their successors or assigns, 

 to the amount of the water right purchased and paid for : and 

 it is the duty of the company from whom the water right is 



purchased to furnish the purchaser or his assigns, a release 

 from said mortgage, so far as the same affects said water 

 right. By the transfer provided by the statue, the water right 

 became attached to the particular tract of land upon which 

 it is used. Hewitt v. Great Western Sugar Co., Supreme 

 Court of Idaho, 118 Pacific 296. 

 IRRIGATION DISTRICTS 



Sess. Laws 1909, p. 319, I 4, relating to the duties of the 

 Board of Control, consisting of two division superintendents 

 and the state engineer, provides that the division superintend- 

 ent shall have control over the water masters of the several 

 districts within his division, and may make regulations for 

 fair distribution of water in accordance with the "determined 

 rights" as may be needed. Section 11 provides that on peti- 

 tion to the Board of Control by water users, requesting 

 determination of the relative rights, the board may "make a 

 determination" of the rights, fixing a time for the taking of 

 testimony, etc. Section 24 provides that, after compilation of 

 said data and the filing of the evidence, the board shall cause 

 to be entered of record an order "determining and establish- 

 ing" the several rights. Section 27 makes it the duty of the 

 circuit court to transmit a copy of the decree to the secretary 

 of the Board of Control. Section 37 gives to the water master 

 authority to regulate distribution of water among various 

 users, "where rights have been determined, in accordance with 

 existing decrees." Held, that the references to "determined 

 rights" were only to such as were determined pursuant to 

 said act, and the Board of Control did not have jurisdiction 

 to supervise the distribution of irrigation water taken from 

 a stream before the rights and priorities of the parties had 

 been determined under said act, and the water master was 

 not entitled to compensation for acting in such unauthorized 

 distribution. Wattles v. Baker County, Supreme Court of 

 Oregon, 117 Pacific 417. 

 HOMESTEADS. 



When an entryman had made a former homestead entry 

 of less than 160 acres for which he acquired title, he was not 

 qualified to make an entry under the reclamation act. 



The act of March 2, 1889 (25 Stat. 854) has no applica- 

 tion to entries under the reclamation act, and the additional 

 right granted in said act of March 2, 1889, cannot be exer- 

 cised by entry within a reclamation project. Citing instruc- 

 tions, June 16, 1909. (38 L. D. 58.) 



When a claimant made entry for a technical quarter- 

 section of land, and after five years' residence thereon ob- 

 tained title thereto, he exhausted his right. 



The fact that the land patented lacked a little more than 

 two acres of making 160 acres did not give him the status 

 of a qualified homestead entryman or the right to enter under 

 the enlarged homestead act, an additional 320 acres. 



Extenuating circumstances in favor of entryman will not 

 justify the department charged with the duty of disposing of 

 the public lands in the manner provided by law, to dispose of 

 them contrary to the express provisions of that law. 



A homestead entry must be canceled as a mere pretext of 

 residence and improvement where it is shown that the entry- 

 man merely made occasional visits to the land, where he 

 merely had a house furnished with stove and dishes, it being 

 shown that the entryman was in partnership in a threshing 

 machine and other farm machinery. 

 IRRIGATION BONDS 



Where an irrigation district has proceeded in conformity 

 with, the statute to issue irrigation district bonds, and has 

 procured an adjudication and confirmation of the proceed- 

 ings in conformity with the statute and of the assessment 

 of benefits against the several tracts of land within the dis- 

 trict, the same becomes res adjudicata against both the land- 

 owners and the district in all subsequent proceedings, in so 

 far as the same may involve the assessment of benefits against 

 the several tracts of land. Russell v. Irish, Supreme Court of 

 Idaho. 118 Pacific 501. 

 SURFACE WATER PRIVATE PROPERTY 



Where K. builds dams and dikes on his own land and 

 collects surface water from the rains and melting snow and 

 forms a lake on his own lands, which is in no way fed 

 from any natural stream or regular flow of water, lield. 

 that the water so accumulated and impounded is the private 

 property of the owner of the land and is not subject to 

 appropriation or diversion by any other person without the 

 consent of the landowner, and that the state engineer has no 

 right or authority to grant a permit to any other person to 

 appropriate or divert such private waters. King v. Cham- 

 berlin, Supreme Court of Idaho, 118 Pacific 1099. 



