The morning call., 1891-09-15
WATER RIGHTS.
The Supreme Court Decides an
Important Case.

The Supreme Court has decided the case
of Ely against Ferguson, in which the dueS-
ton Of the right to appropriate water now
ing from springs was involved.
The plaintiff, Benjamin Ely, sued Louisa
Ferguson to obtain perpetual injunction
restraining her from obstructing the flow OF
water into a ditch constructed TO convey the
water into his land for domestic and irriga-
ton purposes. The injunction was granted
and the defendant appealed. The ditch was
constructed in 1862 by man named Jami-
son, and extended from the land of the
plaintiff to that of the defendant. The
lands referred to are IN Lake County, ana
were then public land of the United States.
On the land now owned by the defendant
there was marsh OF ab1ut four acres and
on one side of it there were hills, near the
base Of which several springs flowed, carry
ing in the aggregate during the summer and
fall months about twenty-four inches OF
water, measured under f0ur-inch pressure.
These waters flowed into the marsh, and
thence through a natural channel to and
across the plaintiffs land on points higher
than they would otherwise have reached.
In 1867 JamisoD posted and had reco rded
a notice that he claimed for purposes of lrri-
cation all the water flowing from the differ
ent springs. In 1870 he sold his possessor-
claim to the land now owned by defendant,
and one-h half of the water appropriated by
him, to one Chambers and reserved by his
deed the other half of the water tor use on
the land now owned by the plaintiff, where
he then lived. In 1872 he posted and caused
to be recorded another notice of appropria-
tion in which he claimed one-half of the
water flowing from the different springs,
amounting to twelve inches under four
inch pressure, aud the ditch already con-
structed.
Chambers sold his claim to r. r. Fergu-
son, the defendants predecessor in interest,
who obtained United States patent tor the
land, subject to vested and water rights for
mining agricultural and other purposes.
Jamison lived on the land now owned by
the plaintiff and used the water until 1872,
when he conveyed the land with its appur-
tenances to one White, who obtained
patent therefor. White conveyed the land
to one Getz, who conveyed 1t and all Its ap-
purtenances to the plaintiff in 1888. Each
of these grantors and the plaintiff claimed
and used One-half of the water flowing from
the springs until 1887, when the defendant
obstlucted the ditch.
Two points were made for a reversal OF
the judgment. 1t was claimed that water
flowing from springs could not be appro-
priated, and seemed that if Jamis0n did ac-
quire Il right to the use of the water of the
sprinz 81 ami marsh. the land to which he
conducted it was then unsurveyed public
land TO which he had no semblance Of title,
and hence the water-rlght did not become
appurtenant to the land, and could not be
passed to another except by deed.
The Supreme Court held that neither OF
these claims could be upheld. Water fOw-
ing from springs, as this water did, may be
water was taken by Jamison did not pre-
vent the water from becoming appurtenant
thereto. For these reasons the Judgment OF
the lower court was affirmed.