McPhail v. Forney

Cost aw ay, Justice. It is alleged in the pleadings by the parties to this action, both plaintiffs and defendant, that defendants in error own a four-fifths interest in the irrigating ditch known as the For-. ney Ditching Company’s Ditch, and that plaintiff in error owns a one-fifth interest in the same ditch. Plaintiff in error, however, claims the right to divert from said ditch and use more than one-fifth of the water carried by it. The parties, [560] plaintiffs and defendant, both claim under an order of the board of control dated March 24, 1892, determining and establishing in the Forney Ditch Company a right by two appropriations to 6.28 feet per second of time of the waters of Jack Creek, and describing the lands to be irrigated by this water. The parties to this suit now own the ditch in the proportions stated, deraigning their respective titles from the Forney Ditching Company by deeds purporting to convey to them their respective interests in the ditch and “the water therein contained.” As held in the case of Hicks v. Frank et al., decided at the present term, a right to the use of water for purposes of irrigation, together with the ditch or other conduit for the water, may be conveyed separate from the land upon which the water is used. It seems that this is what has been done with the water-right involved in this action. Plaintiff in error claims the right to divert and use more than one-fifth of the water carried by the ditch in question, although he claims but a one-fifth interest in the ditch, because, as he claims, he owns more than one-fifth of the land for the irrigation of which the appropriation of the water was made by the Forney Ditching Company and allowed by the board of control. This claim is not consistent. If he has acquired by the purchase of the land the right to divert and use more than one-fifth of the water carried by the ditch he would, at the same time, acquire more than a one-fifth interest in the ditch as necessary to the enjoyment and use of the water-right. According to the principles announced in the ease of Hicks v. Frank et al., and a number of cases cited therein, when a party who owns land and a water-right and ditch used for the purpose of irrigating the land, conveys the land, the water-right and ditch pass by the conveyance of the land. But plaintiff in error does not, by his pleading, or evidence, bring his claim within the operation of these principles. He does not show what water was actually and rightfully being used on his land when he acquired title. He does not show that the conveyances of the different interests in the water-right acquired by the Forney [561] Ditching Company were not made before he acquired title to his land. Plaintiff in error also forgets that it is just as necessary to the creation and preservation of a water-right, to provide means for the continual diversion of the water from its natural channel and for conducting it to the place where it is applied to some beneficial purpose, as it is to apply it to the beneficial purpose. And he cannot arbitrarily seize and use another’s ditch, or interest in a ditch, for that purpose. Plaintiff in error claims a right to the use of more than one-fifth of the water furnished by the ditch mentioned. This claim might well be decided against him on the pleadings as well as on the evidence. This is the only question of interest involved. Some errors in the proceedings in the district court and in its findings are assigned, but they are not material to the decision of this question, and, if error, are not such error as to authorize a reversal of the decision. The district court, by its judgment and decree, granted a perpetual injunction generally restraining the plaintiff in error from diverting from the ditch known as the Forney Ditching Company’s Ditch more than one-fifth of the water carried by it, but in certain contingencies allowing him more than one-fifth. This judgment and decree is at least as favorable to plaintiff in error as the facts warrant, and it is affirmed. G-ROesbeck, C. J., and ClaRK, J., concur.