THE I R E I G A T I N A G K . 



247 



Supreme Court Decisions 



Irrigation Cases 



RIPARIAN RIGHTS. 



Since the flood waters of a stream do not come 

 within the protection of the law of riparian rights, a 

 riparian owner is not entitled to claim them against 

 an appropriator on the theory that the riparian own- 

 ers may at some indefinite future time determine to 

 construct a reservoir on their lands to impound such 

 rlood waters for use during the dry season. Gallatin 

 v. Coming Irr. Co. Supreme Court of California. 

 126 Pacific 864. 

 IRRIGATION BONDS. 



Under L .O. L., 6184, authorizing the directors 

 of an irrigation district, without offering its bonds for 

 sale to the highest bidder, to use them at par for the 

 purchase or construction of reclamation works, the 

 taking over of property upon delivery of the bonds 

 at par, under a void agreement, would be legal and 

 valid. Board of Directors of Payettc-Oregon Slope 

 Irr. Dist. v. Peterson. Supreme Court of Oregon. 

 128 Pacific 837. 



AjUDICATlON OF PRIORITIES'. 



In contests involving the adjudication of the rights 

 of rival appropriators of the waters of a river, the 

 Hoard of Control had no power to determine' as be- 

 tween the parties the ownership or right to the use of 

 a ditch ; the board's duties being confined to the dis- 

 tribution of waters between the several appropriators, 

 the granting of permission to use such waters for 

 beneficial uses, to grant certificates therefor, and gen- 

 eral supervision of such waters. Collett v. Morgan. 

 Supreme Court of Wyoming. 128 Pacific 626. 

 RIPARIAN RIGHTS. 



While one may maintain either his riparian right 

 or his right as an appropriator, he cannot claim title 

 to water in both characters, the assumption of one be- 

 ing the abandonment of the other, hence one claiming 

 500 miner's inches of the water of a stream, and at- 

 tempting to enjoin others from, in any way hindering 

 the entire flow, will be held to be asserting rights as 

 an appropriator by which alone an exclusive use can 

 be had, and not as a riparian proprietor. Bowen v. 

 Spaulding. Supreme Court of Oregon. 128 Pacific 37. 

 RESTORATION OF WATER DIVERTED. 



An upper riparian owner cannot be enjoined by 

 a lower owner from diverting water until the former 

 shall construct an intake, headgate, canals and ditches, 

 and a, return ditch for surplus water, so that the di- 

 version may be made without unnecessary waste, 

 where by agreement with such lower owner the sur- 

 plus water of the upper owner was turned into the 

 lower owner's canal, as the rule requiring the return 

 is for the benefit of and may be waived by the lower 

 owner. Pfiggs v. Miller. Court of Civil Appeals of 

 Texas. 147 Southwestern 632. 

 RIGHT OF TUNIOR APPROPRIATORS. 



As a junior appropriator of water to a beneficial 

 use has a vested right against his senior to a continua- 

 tion of the existing conditions, the senior appropria- 

 tor, though entitled to a large flow of water for the 

 irrigation of a small area which lies so close to the 



stream as to permit return of the water, cannot change 

 the point of diversion so as to take the entire 

 amount of water to irrigate a larger area so 

 far away from the stream as to prevent its return. 

 Larimer County Canal Xo. 2 Irrigating Co. v. Poudre 

 Valley Reservoir Co. Court of Appeals of Colorado. 

 129 Pacific 248. 

 DEDICATION OF WATER TO PUBLIC USE. 



Where an irrigation company which appropriated 

 water from a river to irrigate a named county, or- 

 ganized subsidiary corporations for the purchase of 

 the land in that territory, and transferred to them 

 perpetual water rights for the irrigation of land 

 owned by them, there was no dedication of the water 

 right to public use ; the essential feature of a public 

 use being that it shall not be confined to privileged in- 

 dividuals, but open to the indefinite public, while in 

 this case not every landowner could use water. 

 Thaler v. California Development Co. Supreme Court 

 of California. 128 Pacific 21. 

 FAILURE TO FURNISH WATER. 



Two of the plaintiffs, being owners and holders 

 of a water right upon which they were entitled to 

 water from defendant's canal for irrigation, leased 

 land to the other plaintiff and agreed to furnish him 

 water for irrigation thereon. The tenant duly de- 

 manded that defendant furnish the water under the 

 water right, and defendant refused, apparently con- 

 tending that the water right was for some reason in- 

 valid, but made no objection that the holders of the 

 water right had not assigned the same to their tenant 

 or authorized him to demand and use the water there- 

 under. Held that, after action was brought for dam- 

 ages caused by refusal to furnish any water under 

 the water right, the defendant could not defend against 

 the claim of the tenant on the ground that his land- 

 lords had not authorized him to use the water right, 

 and, the rent being payable in kind, the landlords and 

 tenant were owners in common of the crops and could 

 maintain a joint action for damages thereto. Chalupa 

 v. Tri-State Land Co. Supreme Court of Nebraska. 

 138 Northwestern 603. 

 RECLAMATION ACT. 



Under the provision of Reclamation Act Tune 17, 

 1902, c. 1093, 6, 32 Stat. 389 (U. S. Comp. St. Supp. 

 1911, p. 666), authorizing and directing the Secretary 

 of the Interior to use the reclamation fund created 

 by the act "for the operation and maintenance of all 

 reservoirs and reclamation works constructed under 

 the provisions of this act, provided that, when the 

 payments required by this act are made for the major 

 portion of the lands irrigated from the waters of any 

 of the works herein provided for, then the manage- 

 ment and operation of such irrigation works shall 

 pass to the owners of the lands irigated thereby, to 

 be maintained at their expense," etc., and especially 

 in view of the provision of section 4 that the charges 

 against the land which the secretary is authorized to 

 fix and collect in annual installments "shall be deter- 

 mined with a view of returning to the reclamation 

 fund the estimated cost of construction of the proj- 

 ect," the secretary has no authority to make additional 

 annual assessments for the cost of maintenance prior 

 to the time when the management passes to the land- 

 owners. Baker \. Sivi^art. U. S. Circuit Court of 

 Appeals. 199 Federal 865. 



