, 1885-12-04
IMPORTANT DECISION.
Justice Lacey Rules on the Cues
ton OF Riparian Rights.
Right to Appropriate Water Dates
from Filing of Certificate.

The following is the opinion announced
by Judge Lacey yesterday in his ruling on
the demurrer of the defendant to the petit
ton of the plaintiff in the case of the
Rawhide Irrigation company VS.. The
Payson-H Hutchinson Ditch company. A
history of the case is sufficiently stated in
the opinion which is given in full, because
of its importance as defining riparian
rights in this territory.
The Rawhide ~Irrigating company VS..
the Payson-H Hutchinson Ditch company,
In the discussion of the demurrer to the
amended bill of complaint, counsel have
confined themselves chiefly to the follow
ing questions,
Hirst-Does the bill show any prior
right in the plaintiff to the waters of Raw
hide creek ?
Second-Conceding the prior right in
the plaintiff, does the bill disclose such an
injury to the plaintiff by the defendant as
will authorize equitable relief
The plaintiff has not been content with
a general ayermcnt offs prior right to the
water mentioned, but has set forth the
facts upon which such right is claimed.
These facts are briefly: That the plain
tiff is a corporation, organized under the
laws of this territory, for the purpose of
constructing and operating a ditch to take
water from Rawhide creek for purposes
of irrigation. That on February IA, 1855,
plaintiff filed in the proper Offices a GER
%tiicate of incorporation of the plaintiff.
That in said certificate were stated the
t%erntini, general course and capacity of
said ditch; the bill setting out the descrip-
tive words contained in the certificate.
1t is further averred that the actual work
of constructing said ditch was begun on
April G, 1885, and was prosecuted with
due diligence and was completed on
June 10, 1885, being over four miles
in length.
The bill further ayers that the defen-
dant is incorporated under the laws of
this territory for the purpose of taking
water from the same creek at a point
some eight miles above .he point where
the plaintiff ditch taps the creek. That
the certificate of incorporation of the de-
fendant was executed aud filed in the
proper offices on February 2s, 1885. That
the plaintiff served a notice upon the de
PENDANT on April "a, informing it that the
plaintiff claimed the waters of said creek
by prior appropriation, and that there
after the defendant commenced and. in
course of time, completed the construc-
ton of a dam and ditch in such form and
Of such capacity as to take all the waters
of said creek, leaving none for the plain
tiff.
The doctrine with reference to the ac-
QUESTION of water rights in waters open
for appropriation is hat no rights are ac-
quired until the waters are applied to a BEN
e6cial use; but although the appropriation
is not deemed complete until the actual
diversion and use of the water, still if such
work be prosecuted with reasonable dill
~" -
IN % ~,
IO5.
n"ls' vs. onloh Oah"i To- o OaL' 49,
iuoluhhe water 20 vs. chapman o
oai' Svz'
maeris vs. plcAneh I OaL' zol,
Osgoou W. ""er "nu h'hlh8 Co. Do
OaI' on,
OPhil olVer 'i'hihg To- Vs. carpenter
+ NeV' o0+'
oeioer ct A. vs. fnnN Ell al Oolo''
40,
our statute, win reference 10 the III
corporation Oh ui'eh companies PROVIDES
that any ulteh company formed unuer
the provisions oil TINS article shall nave the
right u way over .ne ilnes hauieu III the
e~ertincate' anu snal aiso nave the nghtpo
run tne water Oh Il stream OF streams
named IN tne certineate through their
uiIeh pr ultenesi ffop'ded' lhit the lines
proposed shail not interfere with any other
ultch whose rights are prior 10 those ae-
qulIeu uhuer TINS article anu py virtue oil
said certlneaie' Acts oil 1851 page ~
sec. "
Inc same act requires tnat the eertln-