THE IRRIGATION AGE. 



283 



Supreme Court Decisions 



Irrigation Cases 



APPROPRIATION. 



A permit to appropriate the public water at a point 

 upon state lands, issued bv the state engineer, is not 

 a lease of the land where the location is made, neither 

 is it a deed of sale of the land at a point where the 

 water is to be taken. Tobey v. Bridgewood. Su- 

 preme Court of Idaho. 127 Pacific 178. 

 APPROPRIATION. 



Diversion and storage of waters in a reservoir is 

 not an appropriation thereof, but it must also be bene- 

 ficially applied to lands. Highland Ditch Co. v. Union 

 Reservoir Co. Supreme Court of Colorado. 127 Pa- 

 cific 1025. 

 CONDEMNATION OF WATER. 



That an irrigation company already entitled to 

 appropriate a large flow of water devotes that flow 

 to a use other than a public use is no defense to a 

 proceeding for the condemnation of other water, which 

 is to be devoted to a public use. San Joaquin & Kings 

 River Canal & Irrigation Co., Inc., v. James J. Steven- 

 son. Supreme Court of California. 128 Pacific 924. 

 WASTE OF WATER. 



Though an irrigation company, entitled to take 

 only a given amount of water, took more, and some 

 of it was wasted, a party cannot maintain mandamus 

 to compel the company to furnish him. with the water 

 thus wasted ; the company not being a common car- 

 rier of water. Thayer v. California Development Co. 

 Supreme Court of California. 128 Pacific 21. 

 IRRIGATION COMPANY'S RIGHT TO SUE. 



An irrigation company, which by reason of the 

 wrongful diversion of water from its canal has be- 

 come liable to its stockholders and water consumers 

 for failure to deliver water, cannot recover its dam- 

 ages caused by such liability from the wrongdoer un- 

 til it has liquidated them. Nevada Ditch Co. v. Pacific 

 Live Stock Co. Supreme Court of Oregon. 127 Pa- 

 cific 984. 

 PARTIES TO SUIT. 



Where, in an action between water appropriators, 

 the relative rights to and the amount of water which 

 each was appropriating were in issue, another water 

 company, through whose ditches defendant claimed 

 that the adverse party was diverting water, was a 

 necessary party to the suit. Biggs v. Miller. Court 

 of Civil Appeals of Texas. 147 Southwestern 632. 

 RIGHT OF RIPARIAN OWNER. 



A riparian owner was entitled to the amount of 

 water reasonably necessary to irrigate his land after 

 making due allowance for that water which at times, 

 by reason of the small flow, was so charged with min- 

 eral substance as to be useless for irrigation. Biggs v. 

 Lee. Court of Civil Appeals of Texas. 147 South- 

 western 709. 

 IRRIGATION COMPANIES. 



Directors of an irrigation corporation, formed for 

 the benefit, principally, of the lands of its promotors, 

 could deal with the corporation and buy water rights 

 therefrom as long as such dealings were open, fair, 



and free from fraud, and on the same terms offered 

 to others. Paine v. Milton, Freewater & Hudson Bay 

 Irr. Co. Supreme Court of Oregon. 127 Pacific 775. 

 SUIT BY IRRIGATION COMPANY. 



An irrigation company, suing to recover over 

 against the wrongdoer damages paid by it to its stock- 

 holders and water consumers because of the wrongful 

 diversion of water, must plead such damages, giving 

 the amount claimed and recovered by each water user 

 separately and specifically. Nevada Ditch Co. v. Pa- 

 cific Live Stock Co. Supreme Court of Oregon. 127 

 Pacific 984. 

 PROTECTION OF VESTED RIGHTS. 



Under the express provisions of Comp. St. U. S. 

 1901, 2339, 2340, vested and accrued water, ditch, 

 and reservoir rights recognized by local customs are 

 protected and confirmed, and patents are made subject 

 to such rights, so that land occupied as a reservoir 

 site under the state's permit at the time the land is 

 selected and granted to the state is, when leased by the 

 state, subject to such rights. Bucknum v. Johnson. 

 Supreme Court of Wyoming. 127 Pacific 904. 

 SURFACE WATER. 



Where surface water from surrounding country 

 passed in its natural course, not over, but by plaintiff's 

 land on either side, and when beyond it was inter- 

 cepted by the embankment of defendant's railroad, it 

 not having constructed enough or sufficient culverts to 

 let pass through it the waters reasonably to be ex- 

 pected, and it there accumulated till it was cast back 

 on plaintiff's higher land, defendant was liable. Kroe- 

 ger v. Twin Buttes R. Co. Supreme Court of Arizona. 

 127 Pacific 735. 

 SELLING WATER RIGHTS OUT OF STATE. 



A provision in the articles of incorporation of an 

 irrigation company that the water is for use upon 

 lands in U. county can only be taken advantage of by 

 stockholders, and probably then only when prejudiced 

 thereby, and is a limitation that may be waived, and 

 an objection to the sale of water to be used out of the 

 state which is made only as a means to avoid the 

 whole proceeding of the board in providing for sales, 

 and not to avoid a wrong to the corporations or to 

 stockholders, is without merit. Paine v. Milton, Free- 

 water & Hudson Bav Irr. Co. Supreme Court of 

 Oregon. 127 Pacific 775. 

 DAMAGES FOR BREACH OF WATER CONTRACT. 



In such a case, the measure of damages is the 

 value to plaintiff of the use of said right during the 

 time he is deprived thereof, and it is not error to in- 

 struct the jury that the measure of plaintiff's recovery 

 is the value of the crop at the time the water was shut 

 out of said canal, with the right to irrigate it from 

 that time to the end of the irrigation season, less the 

 value of the crop without the right to irrigate it from 

 that time until the end of the season. Clague v. Tri- 

 State Land Co., 84 Neb. 499, 121 N. W. 570, 133 Am. 

 St. Rep. 637. Peden v. Platte Valley Farm & Cattle Co. 

 Supreme Court of Nebraska. 139 Northwestern 1012. 



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