Barrows v. Fox

FOOTE, C. The plaintiffs claim to be the owners and tenants in common, and entitled to the possession, of a certain “water ditch, conduit, flume and waterway,” by means of which certain waters flowing from a spring in what is called “Brunson Canyon” are conducted, together with the right of way for the same, over certain lands of which description is given. They also claim, in connection with the right of this waterway, that as tenants in common they own, as prior appropriators for use for “stock, domestic and irrigating and other useful purposes,” all the water flowing from the spring in question, to the extent of two hundred inches of water, under a four-inch pressure. They assert that they have thus used these waters, for about thirteen years, .adversely to the whole world. That the defendants, about the 15th of July, 1890, took and appropriated all the waters of the natural stream which came from the spring above the plaintiffs’ ditch and prevented the plaintiffs from enjoying the use of the [528]waters they had appropriated, and that the defendants threaten to continue to deprive the plaintiffs of their rights in the premises, and will do so if not restrained by injunction. Damages are asked for in the sum of $2,000; that the court will decree that the plaintiffs are the owners of the water right claimed, and entitled to the right of way set up for the water ditch, etc.; and that the defendants be restrained from all wrongful acts, etc.

The defendants deny the claim of the plaintiffs to the water right set up in the complaint, and allege that the defendants are entitled to the use of the waters of the spring flowing by a natural watercourse through their lands, which waters are less in quantity than fifty inches, measured under a four-inch pressure, and that they, claiming themselves to be the owners of the waters in dispute, did appropriate them for necessary beneficial purposes of irrigation and domestic use. The court found in the first finding, in effect, that the plaintiffs were entitled to use their ditch, flume, etc., to convey the waters necessary for the useful purposes for which the plaintiffs had appropriated them, and to the right of way for the ditch, etc.; but in the third finding found that the appropriation for beneficial use by plaintiffs was not two hundred inches of water as alleged in the complaint, but that, as owners and tenants in common of the right to use the waters of the stream in controversy for irrigation upon their lands, they were the owners and entitled to the use of the waters for that purpose “during the months of June, July, August, September, October and November of each year, such months being the season for irrigation in that locality, for the period of fifteen successive days only of each of said months, from the first to the fifteenth days thereof, both inclusive, to the amount of one hundred and sixty thousand two hundred and ten United States gallons per day, equal to eleven inches, measured under a four-inch pressure.” And that they were the owners and entitled to the use of the waters in controversy for domestic and stock purposes only “to the amount of water that will flow through a pipe three-quarters of an inch in diameter, under a four-inch pressure, laid from the place of diversion on said stream to the land aforesaid of plaintiffs, continuously each day, or so much thereof as is reasonably necessary on said land for such purposes.’’ But