Reclamation District No. 833 v. Quigley

THOMPSON, J. The plaintiff instituted this action against the defendant, T. L. Quigley, to compel him to remove a flashboard dam from lateral A (a part of the reclamation works of plaintiff) and to enjoin him from interfering with or impounding any of the water flowing therein. The theory of its complaint is that in 1925 it granted the defendant permission to install the dam in the lateral subject to its right to have it removed at any time; that by the maintenance of the dam in the summer months the owner of the property adjoining defendant’s on the east had been damaged by seepage water and that plaintiff’s reclamation work had been otherwise somewhat impaired. One Hatch, the owner of the property adjoining defendants’ on the east, had threatened plaintiff with action for damages to his property and to compel it to perform its duty to drain the property. There was evidence sufficient to justify the court in believing that when the water was backed up in lateral A, it was above the hardpan underlying the surface of the land, and seeped into the Hatch land, covering approximately eighty acres thereof, although it should be said that there was evidence which would have justified a contrary conclusion. The court rendered its judgment in favor of plaintiff, permanently enjoining the defendant from interfering with or impounding any of the water flowing in lateral A. The defendant prosecutes this appeal from the judgment.

The appellant’s case was founded, not only upon the claim that he had not damaged Hatch, but also upon the proposition that he had an absolute right to take water from the lateral for irrigation purposes. It was shown without conflict that lateral A was constructed primarily for the purpose of conducting the waters of “Cherokee canal”, formerly Dry Creek, around the reclamation district and of preventing it from spilling out in a delta upon appellant’s land with a small part thereof upon respondent’s as it formerly had; that before the organization of the district appellant had taken water from Cherokee canal which it was agreed was a natural watercourse, f.or the irrigation of as much as 1,000 acres. The deed which conveyed to [185]respondent the right of way for lateral “A” through appellant’s land contains a paragraph as follows:

“The second party shall also install a culvert as furnished by first party at a point on the north line of Lateral A as shown in the plans for reclamation of said district, said point to be indicated by the first party, to allow the intake of water from the ditch on to the land of the first party, the first party to furnish the culvert for installation, the second party to install and thereafter maintain the same, but the first party shall hold the second party safe and harmless from any loss or damage occasioned by any flow of water through said last mentioned pipe.”