Idaho news. (Blackfoot, Idaho) 1887-1891, 1889-12-14

4th Tne appropriation must not create
necessity for water, which did not exist ~ his
entry. and seek 10 use water 20 reipely ms
own injudlcIour acts. Hence, IL he found the
streams In condition to hold back the surplus
water In time OF Hood, so as tOrun of RreGuni-
~, and thus snYe ami utilile the surplus, nc
may not remove tiiOse barriers IN the stream.
and then when such surplus shnil haYefseapsd
from his lands, draw upon tine waters OF the
stream % remedy his own acts; thus causing
others 10 suffer for his iniproyidencc. For ex-
ample, TO drain his lands Tor moving, he must
not tear out the beaver dams which were there
before settlement, and then when the land has
become dry, 10 bring Ii back 10 productive
ness by uslng Increased quantities OF waters
OF the stream; rather must he replace the
beaver dams.
9TH All diversions must be at the risk OF
the appropriation, hence. all waters must he
measured ut the point Of diversion; and II the
appropriation provides bad. unsafe, hAstsfnl
conduits, he must bear the loss.
9th. One insh of water measured under
four inch pressure ~ generally conceded 10 be
sufficient average supply for each acre OF
ground actually cultivated; and no one has a
right for the time being 70 divert more for ir-
rigatiOn than he has actually under cultiya-
ti0n; though In the outset he may provide for
more, and increase his diversion as his cnltiVa-
tiOn extends.
Tth. The establishment of the amount of
water each shall receive applies only TO ordina-
~ or average years and the amounts fixed are
relative only. In times Uf superabundalce the
supply OF each may be increased above the
amounts so fixed, and in times OF unusual
scarcity the amounts fixed must be decreased,
but always keeping the proportion OF these al
/ lOtments the same.
1 eth. Nor can the same amounts of water be
| allowed for all seasons Of the year. TO do so
viii be- sure 10 exclude most OF the settlers ON
4 even In ordinary years. No decree that does
4 not adjust the amount allowed according 10
/ the season OF the year, can ne Reasonable or
4 just, or within the spirit OF the law
4 9th. Water 80 divided into small shares. by
/ judiciOus management, may DC made 70 do the
| work Of n much larger amount, divided. even
when constantly running. III an occasional
/ flooding Is necessary, the amount appropriated
/ 10 the neighbOrhoOd. may be united and Used
for short time by each in turn.
| 10th In apportioniBg water the amount
which each party has right 20 consume e OF
| mere consequence than as 10 how much he
| may actually use. II a proprietor divert 100
4 inches of water, and return % inches OF that 10
/ the stream, his consumption is only 50 inches.
/ But II his land be so situated that none OF
4 the diversion gets back into the stream, then
1 his consumption is 100 inches. 50 with same
| diversion the consumption OF one may DO
4 twice that of another fact that should be no.
4 ticed ia making any allotment To illustrate:
1 Some at least OF the lands Of the Durham Land
4 4 Cattle Co., a defendant in this action, slope
I towards the stream, and discharge springs in
4 10 the stream below the irrigating bitches,
4 which springs may bc. and presumably are 10
part supplied by water used for iTflQatlng this
| land. ON the other hand, the lands Of the Bar
thoomewE, Lee Kirk and +. d. Langford lie as
fayorably. and perhaps more fayorably for
4 discharging their waters into Clear Greek as
back into Raft River. 1t il plain TO see that the
real consumption of the waters of Raft River,
by these pnoprietors seYerallg. cannot Dear
diverts. ] am aware that this element, con-
sidcred In the act of diversion 10 each, VIII be
questioned, bat think not successfully. The
n proprietors draw from common stock and IL
one in selecting his lands take that, which TO
irrigRte, viii consume disproportionate
share of that common source of supply, such
selection. for so much, is his own misfortune.
4 liih And this brings us TO consider the
question OF a return 10 the stream of waters
diverted. In most cases. that part viii get
hack is certain. The proportion returned viii
depend on many circumstances. The lay OF
the country Its surface and underlying strata.
distance FROM the stream 70 which the water
Is carried: the relation OF the places where the
water Is used 10 other water courses; the time
OF the year when the water is used;the nature
OF the soil where IL Is used: the kind and inc
amount OF vegetaf N Of which the water be
comes part; the nature OF the season, whsth
or favorable 20 rapid evaporation, or other
wise. All these considerations ana more anec'
this question, and certainty is Impossible
with the information we have, We can only ap
prOximate, leaving our correctness TO be prov
en- or dsproyen ey the actual ,s sess % Tine;
ON other points, must be subject 10 modinca
tons.
, lsth. But taking all the waters OF Raft Riv
ar and its tributaries, at and above the place
In question, at the season of high water. wheT
loss hy evaporation Is least up to 10th day oi
June in each year, estimate the return 81
waters AiNluNu 1QE ~ * ANNliAhAi
of all the waters 20 diverted; and from 18th oi
June to 18th Of July in each year, when irriga
ton OF hay lands has ceased, and when The
waters held back by previous saturation, 4
onzing OF seeping back into the stream. est
( mate the same proportion OF return; and thai
. after the 18th OF July, of the small amounts
, allowed, ore fourth will get back. For ordlnar.
l years think these returns will hold good.
, Prom nil the considerations under the evil
, dence in the case. and merging all questions
, Z of priority and vested rights" in the one
: question of the relative amount each claiman
i entitled to use. during each part of the sea
sons as above divided, reach the conclusioni
I following: lnchei
{ 10 June Is 10 all claimants, 50e
? Returns 20 the stream from all places 9,O9
! Actually CONSUMED 30S
To all from juno Is to July IL each year 2,Se
Returned from all causes in all places 70
|, Actually consumed Las
| To all after July II in each year l,ss
1 Returned from all causes ~
y
Actually consumed "a
Tho amount each claimant is entitled to us
with the date OF his appropriation nnd TO b
Ms follows:
/. PLAINTIFFS.