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I 1! It J (j AT 1 OX A G K. 



Supreme Court Decisions 



Irrigation Cases 



DAMAGES FOR CONDEMNATION. 



On condemnation of land for an irrigation ditch 

 right of way, the owners were entitled to an award 

 for the value of an existing ditch useful for the pur- 

 poses designed by, and to be used by, petitioner, 

 though the ditch had been constructed and abandoned 

 before the owners acquired title to the land. Roberts 

 v. Scurvin Ditch Co. Court of Appeals of Colorado. 

 125 Pacific 552. 

 DITCH ON HIGHWAY. 



Where a decree of partition gave defendant's 

 grantors right to maintain a ditch over the allotments 

 of others, and defendant's grantors placed such ditch 

 within the limits of a highway which the other allot- 

 tees had dedicated to the public, the ditch was subject 

 to the easement of the public. City of Santa Ana v. 

 Santa Ana Valley Irr. Co. Supreme Court of Cal- 

 ifornia. 124 Pacific 847. 

 EFFECT OF PERMIT. 



A permit issued by the state engineer to appro- 

 priate water from the public waters of the state is 

 the consent given by the state that the applicant may 

 proceed under the law and make an appropriation of 

 the public waters. It is the initiation of the appro- 

 priation, but of itself is not an appropriation. Mar- 

 shall v. Niagara Springs Orchard Co. Supreme Court 

 of Idaho. 125 Pacific 208. 

 MEASUREMENT OF WATER. 



Where the rights to water appropriated for ir- 

 rigation purposes were in conflict, the amount to 

 which the respective parties are entitled must be 

 measured at the point of diversion from the stream, 

 in the absence of evidence showing the amount of 

 loss by seepage and evaporation. Little Walla Walla 

 Irr. Union \. Finis Irr. Co. Supreme Court of 

 Oregon. 125 Pacific 270. 

 DAMAGES FOR CONDEMNATION. 



One whose lands were taken under the eminent 

 domain act (Rev. St. 1908, 2415-2464), to pro- 

 vide land upon which to construct an intake ditch to 

 the reservoir of an irrigation district, was entitled to 

 receive his entire compensation in money and could 

 not be required to accept any part of it in the form 

 of benefits to his land from a seepage ditch in no 

 sense connected with and not a part of the intake 

 ditch. Von Richthofen v. Bijou Irr. District. Su- 

 preme Court of Colorado. 125 Pacific 495. 

 TRESPASS IN CLEANING DITCH. 



\Vhere defendant, having an easement to main- 

 tain a water canal over plaintiff's land, sent work- 

 men to clean out and repair the canal, a finding that 

 they trespassed on ground not necessary for their 

 work was insufficient to warrant a recovery against 

 intervener, since so trespassing the workmen acted 

 beyond the scope of their employment, rendering 

 themselves, and not intervener, liable for their acts. 

 Holm v. Davis. Supreme Court of Utah. 125 Pacific 

 403. 



RESERVATION IN IRRIGATION CONTRACT. 



A reservation in a deed of an irrigation canal of 

 a right of way to carry therein a specified amount of 

 water subject to the payment of the grantor of the 

 proportion of the expense of maintaining and re- 

 pairing the canal that 350 inches of water sustains to 

 the entire amount of water from time to time being 

 carried through the canal required the grantee to 

 maintain the canal, and see to it that all of the water 

 transported through it is delivered to the persons 

 entitled to in such quantities as each is entitled to 

 receive, and any expense incident to such over- 

 sight of the canal and distribution of the water 

 is a part of the expense of maintenance of the canal 

 of which the grantor must pay its proportionate part, 

 Rogers v. Kest Riverside 350-inch Water Co. Dis- 

 trict Court of Appeals, Second District, California. 

 124 Pacific 447. 



INSPECTION OF PROPERTY. 



Under Rev. St. 1895, art. 3126, which provides 

 that any corporation organized for irrigation pur- 

 poses may obtain sites and rights of way over private 

 lands, the damages to be assessed and paid for as in 

 railroad cases, and article 4424, which provides that 

 no railroad shall enter upon private property except 

 for a lineal survey, until it shall agree with and pay 

 the owner all damages, the court, in condemnation 

 proceedings by an irrigation company, has no right 

 to permit an inspection of the land sought to be 

 condemned for the purpose of qualifying its own wit- 

 nesses as to the value of the property, or for any pur- 

 pose. Byrd Irr. Co. v. Smythe. Court of Civil Ap- 

 peals of Texas. 146 Southwestern 1064. 



TRESPASS. 



Where an appropriator of water for irrigation 

 removed a portion of a dam construced upon public 

 land by a prior appropriator in such a manner as to 

 divert the entire stream, and by such removal allowed 

 a portion of the stream to continue in its natural 

 course, his act was not a trespass and did not render 

 his appropriation invalid ; the rights of the owners 

 of the dam being commensurate with their rights to 

 the water, and they having no right to divert the 

 entire stream to the injury of a subsequent appro- 

 priator, especially where they did not economically use 

 all the water appropriated. Doherty v. Pratt. Su- 

 preme Court of Nevada. 124 Pacific 574. 



UNDERGROUND FLOW AGE. 



Where plaintiff sought to appropriate the over- 

 flow waters of a creek, evidence that there was a 

 complete disappearance of such overflow at a point 

 1,500 feet distant from the lake, and that beyond 

 that point there was no surface channel, nor any in- 

 dication on the surface of an underground way or 

 channel in the direction of a creek in which plaintiff 

 had only inferior rights, such evidence established a, 

 prima facie case that the lake did not drain into the 

 creek, and that the overflow was therefore subject to 

 plaintiff's appropriation, which was not rebutted by 

 mere evidence of the character of the debris filling the 

 canyon and the configuration of the adjacent country. 

 Ryan v. Quinlan. Supreme Court of Montana. 124 

 Pacific 512. 



