THE IERIGATION AGE. 



303 



Simons v. Paine. Court of Civil Appeals of Texas. 140 



Southwestern 854. 



SALE OF STOCK AND WATER RIGHTS. 



An owner of stock in an irrigation company and of water 

 rights thereunder sold the stock and water rights and agreed 

 to take care of the water for the purchaser until such time 

 as he demanded it, and the owner subsequently actually used 

 the water without claiming any title to the stock of water 

 rights. Held, that the owner could not plead laches or non- 

 user of the water to defeat the rights of the purchaser. Wan- 

 namakcr v. Pendleton. Court of Appeals of Colorado. 121 

 Pacific 108. 

 RIGHTS OF APPROPRIATORS. 



Plaintiffs having acquired the right to use of the water 

 of U]e R. stream by appropriation prior to that of defendant, 

 and 1 jiving use for it, may not be compelled to forego use 

 thereof, because defendant has use for it, though plaintiffs 

 might us the waters of the D. stream, where, if they were re- 

 quired to resort exclusively to, they would be compelled to 

 either enlarge its use, and thus perhaps infringe on the rights 

 of junior appropriators from it, or restrict their use of water 

 to avoid such infringement. Boyd v. Huffine. Supreme Court 

 of Montana. 120 Pacific 228. 

 RIGHTS OF LOWER PROPRIETOR. 



Where a lower riparian proprietor had no knowledge that 

 a dam and a canal constructed by an upper prioprietor would 

 increase the diversion of the water of the stream, and the 

 lower proprietor was assured by the president of the upper 

 proprietor, a corporation, that no increased diversion of water 

 was contemplated, the lower proprietor was not barred by 

 laches, resulting from delay until after the completion of 

 the works of the upper proprietor, from suing to enjoin an 

 increased diversion of the waters of the stream caused Dy 

 such works. Stevinson v. San Joaquin & K. R. Canal & Irri- 

 gation Co. Supreme Court of California. 121 Pacific 398. 

 RIPARIAN RIGHTS. 



The judgment which declared that defendant might take 

 all the water which- he required for indicated purposes, and 

 that, so long as he took a portion of it from a branch, he 

 might take the remainder from the main stream, did not com- 

 pel defendant to continue to take water from the branch, but 

 gave him the first right to all the water which he might re- 

 quire for the indicated purposes ; and, while the rights of a 

 riparian owner are not limited by the quantum of water he 

 may happen to use. the judgment was not erroneous as 

 against defendant. Filippini v. Heivlett. Supreme Court of 

 California. 121 Pacific 376. 

 MAINTENANCE FEE. 



A purchaser of land from one who holds a water right 

 contract thereon with an irrigation company, and who takes 

 title thereto by a deed containing the ordinary covenants of 

 warranty with no reference to the question of water rights, 

 and who refuses to accept water from the company, is not 

 personally liable for the maintenance fee mentioned in the 

 water right contract between his grantor and the irrigation 

 company ; and an action cannot be maintained against him 

 to recover a personal judgment therefor. Farmers' & Mer- 

 chants' Irr. Co. v. Hill. Supreme Court of Nebraska. 134 

 Northwestern 929. 

 TAKING OF CANAL BY CITY. 



A city instituted a proceeding under Comp. Laws 1907, 

 I 1288x22, to obtain a right to enlarge an irrigating canal 

 owned by an irrigation company for the purpose of convey- 

 ing water from a river for the use of its inhabitants. The 

 city already had a canal of its own from the river in question, 

 but, by reason of the canal of the irrigation company being on 

 a higher elevation, it would be more advantageous to the city 

 to convey its water through such canal. Held, that the use 

 which the city sought to make of the canal when enlarged 

 was a public use. Salt Lake City v. East Jordan Irr. Co. 

 Supreme Court of Utah. 121 Pacific 592. 

 SUIT AGAINST RECLAMATION OFFICER. 



Reclamation Act June 17, 1902, c. 1093, 32 Stat. 388 (U. S. 

 Comp. St. Supp. 1909, p. 596), providing for the construction 

 of irrigation works on the public land by the United States, 

 the cost to be repaid to it by purchasers of the lands irrigated, 

 is not a "revenue law of the United States" within the mean- 

 ing of Rev. St. 643 (U. S. Comp. St. 1901, p. 521), author- 

 izing the removal of any suit brought in a state court against 

 any officer appointed under or acting by authority of any 

 revenue law of the United States, and such section does not 

 apply to a suit against the officer in charge of a reclamation 



project because of acts done under color of his office. City of 

 Stanfield \. Umatilla River Water Users' Ass'n. U. S. Cir- 

 cuit Court, District of Oregon. 193 Federal 596. 

 DAMAGES FOR FAILURE TO FURNISH WATER. 



An irrigation corporation contracted to furnish water 

 from its ditch through laterals or measuring boxes for the 

 irrigation of land so situated as to require the construction of 

 ditches across private property of third persons, and across 

 a state road and a railroad right of way. The right to con- 

 struct such a ditch was not shown. Held, that the owner of 

 the land, not required to construct a ditch, or to obtain a right 

 to do so after the refusal of the corporation to furnish water, 

 could only recover legal interest on his investment, and dam- 

 ages, based on the value of crops which he might have pro- 

 duced with water, if furnished by the corporation, were 

 too remote ; the land not having been planted. Ulrich v. 

 Pateros Water Ditch Co. Supreme Court of Washington. 

 121 Pacific 818. 

 DITCH LICENSE. 



A permission, given without consideration by an owner 

 for the use by a township of his land for the discharge across 

 his land of the surplus water of an artesian well sunk by the 

 township on its land for irrigation purposes for the inhabit- 

 ants of the township, and not given in the form of a grant 

 or conveyance in writing, is a mere license, subject to revo- 

 cation by the owner or his grantee ; a "license," in real estate, 

 being an authority to do a particular act on the land of an- 

 other without possessing any estate therein, and being found- 

 ed in personal confidence, revocable at will ; and an "ease- 

 ment" being a privilege in land, without profit, existing dis- 

 tinct from the ownership of the land, founded on a grant in 

 writing, within the statute of frauds (Civ. Code, 1238). 

 Bulz v. Richland Tp. Supreme Court of South Dakota. 134 

 Northwestern 895. 

 IRRIGATION DITCHES^ 



An owner of land constructed an irrigation ditch and 

 thereby appropriated water from a stream. The notice of 

 appropriation specified the quantity of water. Subsequently 

 he conveyed the lower 80 acres of his tract together with an 

 undivided half of the ditch property and the right of way 

 over the land with appurtenances. The ditch of the owner, 

 as actually constructed, did not carry the quantity of water 

 specified in the notice when the conveyance was made. Held, 

 that, though the conveyance created a tenancy in common be- 

 tween the parties as to the ditch with a right to the grantee 

 to extend it, the deed only gave the grantee as a subsequent 

 appropriator a right to the excess of the water not used on 

 the owner's land. Hufford v. Dye. Supreme Court of Cali- 

 fornia. 121 Pacific 400. 

 WYOMING LIEN LAW UNCONSTITUTIONAL. 



Sess. Laws 1909, c. 78 (Comp. St. 1910, 3823-3825), 

 providing by section 1 that, whenever any ditch or canal com- 

 pany or other owner shall contract for the construction of its 

 ditch, canal, or reservoir, such company or owner shall take 

 from the contractor a bond conditioned for the payment of 

 persons who supply such contractor with labor, farm prod- 

 ucts, or goods of any kind, or all just debts incurred in car- 

 rying on such work, and, on failure to take such bond, such 

 company or owner shall be liable to the full extent of all such 

 debts of the contractor or subcontractor, in so far as it im- 

 poses liabilities beyond the extent to which the property is 

 benefited, violates Const, art. 1, 6, providing that no person 

 shall be deprived of property without due process of law. 

 George Bolln Co. v. North Platte Valley Irr. Co. Supreme 

 Court of Wyoming. 121 Pacific 22. 

 DAMAGES FOR ENLARGEMENT OF CANAL. 



In a proceeding to obtain permission to enlarge the irri- 

 gation canals of another under Comp. Laws 1907, 1288x22, 

 defendants claimed damages for deprivation of the right to 

 enlarge their canals and appropriate additional water and 

 supply others with such water for profit. The decree pro- 

 vided that in enlarging the canals the plaintiff should main- 

 tain the existing irregularity of the banks. Held, that de- 

 fendants were, not entitled to any such damages, since they 

 had no better right than plaintiff to appropriate any unap- 

 propriated water, and, if they could appropriate any more 

 water, there was nothing to prevent them from enlarging their 

 canal ; the provision respecting the maintenance of the irregu- 

 larities of the banks reserving to defendants the benefit of 

 the wider portions of the banks in case they desired to in- 

 crease their capacity. Tanner v. Provo Bench Canal & Irri- 

 gation Co. Supreme Court of Utah. 121 Pacific 584. 





