THE IRRIGATION AGE. 



341 



Supreme Court Decisions 



Irrigation Cases 



TITLE. 



In an action for damages to crops by destruction of a 

 flume feeding and conveying water to irrigate plaintiff's land, 

 proof of plaintiff's occupancy for over 30 years is sufficient 

 proof of title without deraigning a record title. Gustin v. 

 Hurting. Supreme Court of. Wyoming. 121 Pacific 522. 

 RIGHT TO USE WATER. 



The right to the use of water under a grant from the 

 owner is an incorporeal hereditament, and, as a contract with 

 respect to it cannot technically establish the relation of land- 

 lord and tenant, the most appropriate remedy to protect such 

 an interest is a suit in equity. Custer Consol. Mines Co. \. 

 City of Helena. Supreme Court of Montana. 123 Pacific 567. 

 PRIORITY. 



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

 stitution, whenever more than one person has settled upon or 

 improved land with the view of receiving water for agri- 

 cultural purposes under a sale, rental, or distribution thereof, 

 as among such persons priority in time gives superiority of 

 right. Mellen v. Great Western Beet Sugar Co. Supreme 

 Court of Idaho. 132 Pacific 30. 

 AMOUNT APPROPRIATED. 



A water appropriator's right will not be limited by the 

 capacity of his canal while out of repair, unless that con- 

 dition has existed for such a long time as to indicate his 

 intention to claim no more water than the canal in that con- 

 dition will carry. Bailey v. Tintinger. Supreme Court of 

 Montana. 122 Pacific 575. 

 FAILURE TO SUPPLY WATER. 



Under the provisions of the settler's contract, it is pro- 

 vided that interest from April 1, 1909, at 6 per cent per annum 

 may be charged on balance of purchase price if water is 

 available from the canals of the company for use during the 

 irrigation season of 1909, and, if not available for that season, 

 that interest shall commence when water is available. Hanes 

 v. Idaho In: Co., Limited. Supreme Court of Idaho. 122 

 Pacific 859. 

 POINT OF DIVERSION. 



In a proceeding to obtain permission to enlarge irrigat- 

 ing canals of another person under Comp. Laws 1907, 1288x 

 22, it is no objection to the maintenance of the proceeding 

 that plaintiff's right is a right to divert water at a point 

 above the point of diversion of defendants' canals, where it 

 appears that plaintiff can divert his water at the point where 

 the canals divert water. Tanner v. Proi'o Bench Canal and 

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

 APPROPRIATION. 



The mere possession by one person of a water right by 

 another does not show such privity as will enable the former 

 to claim his right as of the date of original appropriation, 

 but to do so the possessor must show some contractual rela- 

 tion between himself and the original appropriator or privity 

 with him under the laws of sucession, otherwise the initiation 

 of the right of the possessor must be fixed as of the date of 

 the taking possession and subject to water rights acquired by 

 others. Kenck v. Deegan. Supreme Court of Montana. 122 

 Pacific 746. 

 RATIFICATION OF CONTRACT. 



Where a purchaser of substantially all of the stock of a 

 corporation organized to supply water for irrigation con- 

 tracted with the seller to furnish water from the ditches of 

 the corporation for the irrigation of described parcels of land 

 of the seller, and, after the purchaser became the managing 

 officer of the corporation, payments were made to it for 

 furnishing water on the lands described, the contract was 

 ratified by the corporation, and it was bound by it. Ulricli v. 

 Pateros Water Ditch Co. Supreme Court of Washington. 

 121 Pacific 818. 

 RIPARIAN RIGHTS. 



Each riparian owner is entitled to a reasonable use of 

 water as an incident to his ownership, and as all owners on 

 the same stream have the same right the use of each must be 

 consistent with and qualified by the rights of others; but a 

 lower riparian proprietor may not go upon or above the land 

 of an upper proprietor and take water which is wont to flow 



upon such land, and is necessary for the reasonable use of 

 such upper proprietor, without returning it, since such appro- 

 priation by the lower proprietor is unreasonable. Miller v. 

 Baker. Supreme Court of Washington. 122 Pacific 604. 

 NECESSITY OF DIVERSION. 



An act of 1370 (Laws 1869-70, p. 57) limited the right to 

 appropriate water for irrigation purposes to persons or 

 corporations having the title to ot possession of agricultural 

 lands. The provision was omitted from the Codes of 1895 

 and 1907, and under the decisions an appropriator need- not 

 be an owner or in possession of land in order to make a 

 valid appropriation for irrigation purposes. Const, art. 3, 

 15, provides that the use of all water now appropriated or 

 that may hereafter be appropriated for sale, rental, distribu- 

 tion, or other beneficial purpose, shall be held to be a public 

 use. Rev. Codes, 3808, 3819, authorize the formation of a 

 corporation to supply water to the public. Section 4841 de- 

 clares that the use of water taken must be for a beneficial 

 purpose, but that such use need not be immediate, but may 

 be prospective. Held, the requirement of actual use to com- 

 plete an appropriation would defeat the purpose of the Legis- 

 lature and public policy of the state to encourage public 

 service companies for irrigation enterprises, as in many in- 

 stances the complete use of the land taken would be im- 

 possible, owing to the unsettled condition of land irrigated, 

 and an appropriation according to the statutory requirements 

 is complete without the actual diversion of the water. Bailey 

 v. Tintinger. Supreme Court of Montana. 122 Pacific 575. 

 CONTRACT TO SUPPLY WATER FOR IRRIGATION. 



An irrigation corporation contracted to supply water to a 

 customer on a form partially printed and furnished by it. 

 The printed provisions bound the corporation to furnish to 

 the cutsomer all the water that might be required for irriga- 

 tion, and bound the customer to construct a ditch from a 

 gate placed in the bank of a canal. The written provisions 

 described the land to be irrigated, reserved to the customer 

 the right to relocate water at any time, prior to the use of 

 water, and declared that the first payment should commence 

 when water was ready "for delivery at the highest possible 

 level on the north line" of the N. W. J4 described. The 

 corporation had previously contracted to deliver water in a 

 branch running on the north line of the customer's land to a 

 point most convenient for delivery of water for use on the 

 land; but physical conditions interfered with performance 

 thereof. The corporation, on entering into the present con- 

 tract, represented to the customer that it would deliver the 

 water at the highest point on the north line of the quarter 

 secion, and for some time the customer received the water at 

 such point. Held, that the contract obligated the corpora- 

 tion to supply water at such point, when construed as re- 

 quired by Civ. Code, 1638, 1639, 1641, 1647, 1649, 1651, and 

 Code Civ. Proc. 1860, requiring the court to ascertain the 

 intention of the parties, and, where a contract is partly 

 written and partly printed, the written part controls, etc. 

 Bonslett v. Butte County Canal Co. District Court of Appeal, 

 Third District, California. 122 Pacific 821. 



CENTER, SAGUACHE COUNTY, COLORADO. 



Situated in the midst of a splendid irrigation system 

 and in the most fully developed section of the San Luis 

 Valley, the town of Center is one of the fastest growing 

 towns of southern Colrado. 



Center is an inland town, located 14 miles from a rail- 

 road, and about midway between Hooper and Monte Vista, 

 the shipping points. 



The irrigation system of Center is equal to any in the 

 valley and there are under construction two large storage 

 reservoirs which will store enough when completed to furnish 

 160,000 acre feet. The principal crops of the farms around 

 Center are cattle, sheep, hogs, horses, poultry, grain, alfalfa, 

 peas, potatoes, sugar beets and vegetables of all kinds. The 

 wheat crop in 1911 averaged 35 bushels to the acre. Field 

 peas are raised very extensively and fed on the ground to 

 lambs and hogs. There is a plentiful supply of artesian 

 water around Center and this is another big help in fatten- 

 ing stock. 



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