.THE IREIGATION AGE. 



437 



Supreme Court Decisions 



Irrigation Cases 



EXTENT OF RIGHT. 



The extent of an appropriation of water rights is deter- 

 mined by the appropriator's need and facilities if equal, by 

 the capacity of his ditch if his need exceeds the means of 

 diversion, and by his need if the capacity of the ditch ex- 

 ceeds it. Bailev v. Tintiiigcr. Supreme Court of Montana. 

 122 Pacific 575." 

 POLLUTION BY MINING WATER 



Though a person located on a mining stream and oper- 

 ating a placer mine is entitled to a reasonable and proper 

 use of the channel and the water, he has no right to dump 

 his mining debris into the channel or stream and allow it to 

 be carried down, by the water to the land of a lower riparian 

 proprietor, or to till up the channel to the injury of such 

 riparian proprietor. Provolt v. Bailey, Supreme Court of 

 Oregon, 121 Pacific 961. 

 USE OF ANOTHER'S CANAL 



A person is not precluded from proceeding under Comp. 

 Laws 1907, 1288x22, to obtain permission to enlarge the 

 irrigation canal of another because his application for un- 

 appropriated water was approved by himself in his official 

 capacity as state engineer, since the statute gives the right 

 to any person interested to protest any application, and the 

 courts in a proceeding under Section 1288x22 have no power 

 to pass upon and determine the water rights of the plaintiff. 

 Tanner v. Proro Bench Canal & Irrigation Co., Supreme 

 Court of Utah, 121 Pacific 584. 



SALE OF BONDS. 



Sess. Laws 1909, c. 146, providing for the creation of 

 irrigation districts, and declaring in Section 44 that bonds 

 issued by a district shall be sold, under the direction of the 

 board of commissioners, for not less than 90 per cent and 

 accrued interest, imposes no restriction on the board of com- 

 missioners of a district in exchanging the bonds of the dis- 

 trict for property other than that imposed in making ,a sale 

 for cash, and the board in exchanging bonds for property 

 may 'allow only the statutory discount. O'Xeill v. Yellow- 

 stone Irr. Dist., Supreme Court of Montana, 121 Pacific 283. 

 REVOCATION OF DITCH LICENSE 



A township completed an artesian well, sunk for irriga- 

 tion purposes, for the inhabitants of the township, as author- 

 ized by law. Subsequently it obtained, without consideration, 

 a license to discharge across the land of an individual the 

 surplus water. It incurred no expense in exercising rights 

 under the license, and there was no natural water course on 

 the land of the individual along which the waters would 

 naturally flow. Held, that the individual or his grantee could 

 revoke the license at will. Buiz v. Richland Tp., Supreme 

 Court of South Dakota, 134 Northwestern 895. 



PRIORITIES 



Where a landowner has appropriated and diverted water 

 from a natural stream for the irrigation of his land and 

 thereafter enters into an agreement with an irrigation com- 

 pany whereby he consents and agrees to relinquish and waive 

 his water right from the stream and allow the irrigation 

 company to collect the waters of the stream into reservoirs, 

 and the company agrees in consideration thereof to deliver 

 water to such landowner from the reservoirs and -canal sys- 

 tem, the priority of the original appropriates should properly 

 date from the time of his first appropriation, diversion and 

 application of the water to a beneficial use. Mellen v. Great 

 Western Beet Sugar Co., Supreme Court of Idaho, 122 Pa- 

 cific 30. 

 "MINERS' INCH"- 



A contract to furnish a specified number of miners' inches 

 of water for irrigation purposes is sufficiently certain to 

 justify specific performance, where witnesses explain' the 

 meaning of the ambiguous term "miners' inch" and show 

 that at the time of the making of the contract it was com- 

 monly understood that the term meant a quantity of water 

 which would flow through an orifice an inch square under a 

 four-inch pressure, and that a four-inch pressure meant a 

 head of water which stood four inches above the top of the 



orifice, and such testimony is not disputed. Ulrich v. Pateros 

 Water Ditch Co., Supreme Court of Washington, 121 Pa- 

 cific 818. 



COMMON LAW RIGHT. 



The custom of early settlers in California, which became 

 a part of the common law of the country, recognized that an 

 appropriation of water rights could be made by an actual 

 diversion of water. Statutes later enacted provided a com- 

 plete method of making an appropriation. Rev. Codes, 

 4840 4891. Held, the statute intended to provide a method 

 for the appropriation of water in addition to that fixed by 

 early customs, and after its passage an appropriation might 

 be made either by actual diversion or by compliance with its 

 requirements. Bailey v. Tintinger. Supreme Court of Montana. 

 12'2 Pacific 575. 



COMPENSATION FOR TAKING OF WATER RIGHTS 



In a proceeding under Comp. Laws 1907, 1288x22, to 

 obtain the right to enlarge an irrigation canal of another 

 to carry water of plaintiff, the canal owner is entitled to re- 

 cover damages for any land actually taken for any diverting 

 appliances interfered with or affected, so as to require them 

 to be changed, by reason of the enlargement, for temporary 

 interference with the distribution of water, for the use by 

 the applicant of portions of the canal which are wider than 

 are required by the owner, if such wider portions have any 

 substantial value, and for the decrease in the value of the 

 canal by reason of the enlargement and use by applicant. 

 Salt Lake City v. East Jordan Irr. Co., Supreme Court of 

 Utah, 121 Pacific 592. 



DAMAGES FOR ENLARGEMENT OF CANAL BY CITY. 



In a proceeding by a city under Comp. Laws 1907, 

 1288x2'2, to obtain the right to enlarge an irrigation canal 

 owned by an irrigation company to carry water of the city, 

 .the company is entitled to any damages sustained by the 

 corporate entity by the temporary interference with the dis- 

 tribution of water by defendant caused by the work of en- 

 largement, but is. not entitled to recover for damages sus- 

 tained by the individual users of water through such tem- 

 porary interference, although they may be stockholders of the 

 corporation. Salt Lake City v. East Jordan Irr. Co. Supreme 

 Court of Utah. 121 Pacific 592. 



WATER RIGHTS. 



Where a plaintiff, within 60 days after the posting of 

 notice of appropriation of water of a running stream, had 

 a survey and map made of the route of the proposed ditch 

 from the proposed dam to the proposed place of use, to be 

 used in applying for a permit from the federal government 

 to construct the same over land in a forest reserve, and the 

 survey was completed within 60 days, and plaintiff within 60 

 days filed his application with the United States authorities 

 for permission to build the proposed dam, which application 

 was pending, and plaintiff acted in good faith and prosecuted 

 his application with reasonable diligence, he acquired such 

 interest against subordinate adverse claims as to enable him 

 to maintain an action to determine conflicting claims to the 

 use of the water, but the judgment should not declare that 

 plaintiff was absolutely entitled to the water, but it should 

 only describe plaintiff's contingent right to use the water and 

 enjoin adverse claims injurious thereto. Merrill v. City of Los 

 Angeles. Supreme Court of California. 120 Pacific 1064. 



Reclamation Act. Under Reclamation Act June 17, 

 1902, c. 1093, 32 Sta. 388 (U. S. Comp. St. Supp. 1911, p. 

 662), which sets apart the proceeds of public lands in cer- 

 tain states and territories as a reclamation fund, to be used 

 by the Secretary of the Interior in constructing, maintain- 

 ing, and operating irrigation projects, the estimated cost of 

 which is to be charged upon the lands irrigation and re- 

 turned to the fund in annual installments, and which fur- 

 ther provides that, when such payments have been made 

 for the major portion of the lands irrigated from any 

 works, the management and operation of the same shall 

 pass to the owners of the lands, and the Secretary has 

 authority to levy and collect assessments on the lands to 

 defray the cost of maintenance prior to that time; it being 

 theintention of the act that the fund should be full reim- 

 bursed for expenditures made therefrom and kept intact. 

 Baker v. Swigart. U. S. District Court Eastern District of 

 Washington, 196 Federal 569. 



