Crooker v. Benton

Temple, C. This is defendant’s appeal from the judgment and an order refusing a new trial.

The action is to determine the right to one third of the water flowing is a certain ditch. The plaintiff claims the water as appurtenant to a certain tract of land purchased by him from one D. G. Miller. The defendant claims to have purchased from Miller his interest in the ditch, after Miller had conveyed the land to plaintiff. If the water right was appurtenant to the land, plaintiff must prevail; otherwise the defendant.

It appears that in 1883, W. T. Hurtt, L. A. Crooker, and said D. G. Miller were each in possession of a quarter-section of land in section 28, etc. An old flume ran through this section, formerly used to float lumber. Water continued to run there, and the owners of the flume, having no use for it, suffered it to be taken out by settlers for domestic and irrigation purposes, and it was so taken by Hurtt, L. A. Crooker, and Miller.

[367]The flume decaying, Hurtt, L. A. Crooker, and Miller agreed to appropriate a portion of the water of Digger Creek, which had supplied the flume, and accordingly posted, at the point of intended diversion on Digger Creek, a notice, as required by the code, which was signed by each of the persons named, and contained certain declarations as to the rights and duties of the parties: 1. They should own equally; 2. Each do one third of the work and furnish one third of the money for construction; and" 3. Failing to do this, their interest in the ditch should be held for payment; 4. Each could take his share of water out at any place to suit his convenience; 5. Each was compelled to cut ditches to carry his portion of water back to Digger Creek; and 6. To pay an equal proportion to keep the ditch in repair.

In the spring of 1884 the water was taken out and conducted by ditch and flume to a point eighty rods northeast of the southeast corner of the section.

Hurtt then constructed a ditch, taking his share of the water upon his land, where, having used it, or what he wished, it ran upon the land of L. A. Crooker, and from thence sometimes upon the land of Miller, and was used by him for purposes of irrigation.

Where the ditch constructed by the parties terminated, the old flume still remained, and the water flowed thence to a point near L. A. Crooker’s land, whence some of it was taken and used by him, and the excess not used by him passed to Miller’s land.