The herald., 1896-07-11
An Intricate Water Suit

In the suit of E. L. Mayberry against
the Alhambra Addition Water company
to restrain the defendant from interfer-
ing with and diverting water, and for
damages thereby occasioned, Judge Van
Dyke yesterday handed down an opinion
denying the injunction, without costs
to either party.
The right of the parties is dependent
upon a certain contract entered into
May Z, 1860. between w. B. Wilson and
his wife and Z. j. c. Kewen and his wife
The land, at that time embracing the
source of Mill creek and extending to
and including the mouth of the Canyada
del Molino, or Mill stream, belonging to
the Wilson's. South of and adjoining
this land. and including the lower course
of Mill creek, was tract of government
land embracing 154 acres, occupied by
kewen. Subsequently to the date of
contract Kewen acquired title to the
government land occupied by him. end
also acquired so acres. including the
mouth of the Canyada. from Wilson
subject to the reservation of all water
rights. and from other sources he ac-
quired lands along the course Of the
stream adjoining the lands which he
claimed and occupied at the date of con-
tract. These lands and all his rights
under the contract have been trans
ferred to the plaintiff, and the defendant
has acquired certain lands from Wilson
and succeeded to all his rights under the
contract.
In 1886 and 1887 Mayberry, as successor
to the Kewens. claimed the right to use
and did use the water on the land ac-
quired by Kewen subsequent to the con-
tract The Alhambra Addition Water
company disputed his right to do so, and
in 1887 brought an action to determine
the respective rights of the parties to
-. te-,,r rfat~
ed the claim of, the plaintiff in that ac-
ton who is the defendant in this. and the
defendant in that action. the plaintiff in
this. prosecuted an appeal to the supreme
court.
In 1887 the defendant company COM
menced developing water by means of
artesian wells and tunnels in the land
owned by Wilson at the contract border
ing the Mill stream and up to its sources,
and as a result of such development so
or more miners inches were added to
the waters of Mill stream. THE testi-
mony shows" says Judge Van Dyke,
that the natural flow of the Mill stream
in the irrigating stream was about so
inches, and that now and since the com
pletion of the process of development
the same flow is from 100 to 105 inches.
In May, 1891, after the supreme court
decision, the defendant employed an
engineer to make a division of the water
between the parties, and invited the CO.
operation of Mayberry in adopting some
such division The defendant contends
that Mayberry, as successor to Kewen, is
only entitled to his two days run from
the waters of the stream as it naturally
flowed without the addition of the de-
veloped water. whereas Mayberry con-
tends that he is entitled to two days run
of all the water of the stream, including
| that developed as we'll as the natural
| flow. He consequently refused to CO.
| operate in the division of water. ana the
| defendant proceeded to divide the water
on the basis as claimed by such company
The plaintiff has the right under the
contract to take and conduct the water
naturally flowing in the stream Two
days of each week. to be used for his
own purposes Instead of taking this,
it appears he allowed the defendant to
apporton and distribute the water to
him. He is not, therefore, in position
to be heard in reference to any result
flowing from his own conduct. on the
other hand, it is the duty of the defeno
ant, in retaining or withdrawing from
the creek the developed water, not to
diminish the natural flow or in any way
interfere with the right of the plainti1
to the same during the two days 10
which he is entitled under the contract