Omaha daily bee., 1897-12-02
DECISION IN IRRIGATION CASE.
Important Case Adjudicnted by Judge
Grimes at Gertng.

GERlNG, Neb., Dec. 1-(Special)-An
adjourned session OF the October term
OF the district court has Just been
held here by Judge Grimes, the prln-
cipal business of which was the rem
dering Of his decision in the injunction
case OF the Castle Rock Irrigation Canal
and Water Power company against Philip
Jurisch. The plaintiff sought to enjoin de-
fendant from condemning a right-of-way for
lateral ditch across plaintiffs canal and
right-of-way, from the Steamboat ditch,
another canal lying above that OF plaintiff
The contention OF plaintiff being that hav-
Ing first taken out It's ditch and having ac-
CURED an appropriation claiming ali lands
lying hereunder, that 1t thereby acquired an
exclusive right to water all OF said lands;
that the State Board OF Irrigation by decis-
lon rendered September %, 1897. had given
plaintiff that exclusive right to furnish
water to irrigate all lands lying under its
canal; that private individual could not
exercise the right Of emirent domain to con-
denim right-of-way for the purpose Of carry
ing water to his land for irrigation.
The court found for the defendant, Jurlsch
dissolvng the injunction. III rendering his
decision Judge Grimes held that the cOnten-
ton OF plaintiff that 1t had or could acquire
an exclusive right to water defendants land
by reason of prior appropriation, without
his consent, and charge him for the use of
the water rate to be set and controlled by
plaintiff would, II sustained by the courts,
uphold a monopoly and shut off all composi-
tion in furnishing water; that the state beard
had no jurisdiction over the question as to
who shall furnish water for specific lands
end cannot take from the landowner the
right to obtain water where he can get 1t the
cheapest; that the legislature having de-
clared the want of water natural want ari
the irrigation and reclamation OF arid lands
being a benefit to the general public, that
therefore
feHdant could exercise the right of eminent
domain and condemn q right-Ofway to con-
ycy water to his land for irrigation purpo 7es,
as provided in the Akers law. Judge Grimes
decision upholds the original opinion of
Secretary Akers OF the state Board of Irri-
CATION. which was reversed by the present
state board on September o. 1897. The plain
til has given supersedeas bond and viii take
the ca1e to the supreme court.
CRAWFORD, Neb., Dec. 1.-(Special)-J.
y. Wilson, secretary of the State Board OF
Irrigation with his stenographer Mr..
Corchrare have been in session day and
evening here since the 18th inst, taking
testimony in the contests for White river
water rights. The principal contests were
| those of the irrigatOrs against the mill rights
of Leroy Hall who claims that he has a
prescriptive right to the waters of the river
and that as such they are not public waters
within the meaning of the irrigation laws
and cannot be irterferei with by the irri-
gators or for any other use. He also con-
tends that having the prescriptive right to
the water for one purpose he can do as he
wishes with the water, and change the use
to that of irrigation. even though it inter-
feres with the previously acquired rights OF
the irrigators below him on the river. Mr..
Eeeley proprietor of the Whitney mill on
the other hand. appears to be anxious to see
the waters of the river used for irrigation
purposes and wants only fair recompense
for the less of his water power.