Idaho news. (Blackfoot, Idaho) 1887-1891, 1890-05-31

uSlSuUdutS nave NJ All ttlneS ueth lIl-
formed of aud have known that PLAIN
tiffs asserted title to all the water
flowing in said stream and plaintiffs
have many times torn out the dams
by defendants, and turned
the water from their bitches back in
TO the stream, and caused the water
to flow down into the plaintiffs bitches
and upon the lands. az None of the
defendants have been in the actual
adverse possession of the water of
said stream, nor of any part thereof,
for the period of five years next be-
fore the commencement of this suit
(S) None of the defendants at any
time ever posted any notice claiukng
any of the waters of said stream, nor
did they, or any of them comply, or
attempt to comply, with any of the
provisions of the act of the Idaho
Legislature of February 10, 1881, in
relation to water-rights, with a view
to acquire the right to the use of any
of the waters Of said stream. (9) Irri-
cation is necessary to the proper cul-
tivation and the raising OF crops up
on the lands of all the parties to this
action, and all the waters of said
stream are required for the irrigation
of the lands of the plaintiffs.
These are all of the findings Of fact
No custom as to the use of water is
alleged or found, and the appellant
contends that these facts are insult
cient to sustain a judgment for the
plaintiffs. He says that custom, and
custom alone, where right exists to
use water for irrigating purposes on
the public domain, must be shown as
the basis of that right; that it must
be alleged and shown, and, of course
must be found. That is the law. Gus
tom is indispensable to the plaintiffs
right Such right is founded on Gus.
tom and user. IA U. S. st. at Large,
p. 253, 2 9; Basey V. Gallagher, 20
Wall. $50. But nothing of the kind
exists here. We might go no further,
and, resting on this, the judgment is
not sustained. But the counsel goes
further. He insists that the respon.
dents, and each of them, fails 10 show
that he has, or ever had, lands to
irrigate requiring 500 inches of water
or any other amount The court
seems to have properly assumed that
the right TO divert water for agricul
tural purposes depends upon having
some parcel of land to irrigate. Such
| is, unquestionably, the law. The de,
cisions of the court are uniform on
that point; also the statutes of Idaho
Chapter /, tit. 8. Covert does not
seem to have had any land at any
time. Quigley in 1879 is found tc
have occupied "a piece" somewhere
at or near the mouth Of the gulch, buI
there is no intimation as TO how much
whether one acre Of one hundred
acres; nor is there any definite loca
ton or description Of it. Water wa:
conducted onto IA part" Of this piece
but whether upon that part which
Quigley sold to Drake, and which
Drake got patent for, or upon thai
which Quigley retained, does not ap
pear. At the same time, Drake anC
Quigley appear to have held thei
lands in severalty. Drake entered biz
land, whatever it was, at the laud-of
fee after 1879, presumably after tn
act of February 10, 1881; but, when
ever 1t was, he is not shown to havr
; been IN the use of any waters at tina
time. After such purchase from tn
United States, the lands were no
government domain, but any consid
cradle appropriation Of water by hin
must have been under the statute 0
Idaho He did nothing, under tina
statute or otherwise, at any time
tending to constitute an appropria
ton by him. Neither did Covert.
In the second finding it is said tina
at some time not specified "Drak
succeeded to 'cne-half of all tn
waters claimed and owned by QuigIey
aud the plaintiff Covert succeeded t,
the other half" By what means the,
fsucceeded," whether by abandon
ment by QuigIey and reappropriatiol
by Drake aud Covert, or by sale b
, Quigley to them, of the lands o.