Ely v. Ferguson

Belcher, C. The plaintiff brought this action to obtain a perpetual injunction restraining the defendant from obstructing the flow of water into a ditch constructed to convey the water to his land, to be there used for domestic and irrigating purposes. The court below granted the injunction as prayed for, and the defendant appeals from the judgment, and an order denying a new trial.

The ditch referred to was constructed in 1862 by one Jamison, and it extended from the land now owned by plaintiff to that now owned by defendant. These two tracts of land were situate in Lake County, and were then public land of the United States, but were separately inclosed and occupied by Jamison.

On the land now owned by defendant there was a marsh containing about four acres, and on one side of it were hills, near the base of which several springs of water flowed out, carrying in the aggregate, during the summer and fall months, as estimated, about twenty, four inches of water, measured under a four-inch pressure. These waters flowed into the marsh, and thence through a natural channel to and across the land now owned by plaintiff. The ditch was constructed around - the side of the marsh so as to take in the waters' of all the springs and conduct them to plaintiff’s land [189]at points higher than they would otherwise have reached.

In 1867, Jamison posted and had recorded a notice that he claimed all the water flowing from the different springs, for purposes of irrigation. In 1870, he sold bis possessory claim to the land now owned by defendant, and one half of the water appropriated by him to one Chambers, and reserved by his deed the other half of the water for use on the land now owned by the plaintiff, where he then lived. In 1872, he posted and caused to be recorded another notice of appropriation, in which he claimed one half of the water flowing from the different springs, amounting to twelve inches under a four-inch pressure, and the ditch already constructed.

Chambers sold his possessory claim to R K. Ferguson, the defendant’s predecessor in interest, who in 1885 obtained a United States patent to the land, “subject, however, to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights.”

Jamison continued to live on the land now owned by the plaintiff, and to use the water carried to it by his ditch for irrigating and other purposes, until 1872, when he conveyed the land with its appurtenances to one White, who in 1878 obtained a United States patent therefor. White conveyed to Getz in 1879, and Getz to the plaintiff in 1883, who has ever since been the owner of the land. Each of these deeds described the land and granted the title thereto, with its appurtenances.