The Parma herald. (Parma, Idaho) 1903-1917, 1905-05-27
FAv0RS FARMERS
Judge Stewart Renders Decis-
ion Against Ditch Co. In
Action for Damages.

An important decision was rendered
by Judge Stewart at Boise this week in
the case Of Mcmillan W. Settlers Ditch |
Co. tor damages. Mcmillan and many (
other farmers under that ditch had I
signed for water during the season, the [
supply became exhausted. or for some
reason the ditch company did not FUR
nish sufficient water T. mature the
crops Damage proceedings were filed
against the company. In summarizing
the court says:
"The evidence in this case shows that
at times when there was full head OF
water flowing in the defendants ditch
at the taps where the plaintiff and his
assignors take water therefrom, there
was an insufficient quantity Of water
going to the plaintiff and his assignors
that the defendant did not turn out the
water contracted for or sufficient water
to irrigate the plaintiffs and his assign
ors' lands; that the demand was made
anon the defendant through the super
mtendent, Mr. Gibbarh, and the ditch
walkers OF tn, defendant to turn water
out to the plaintiff and his assignors; /;
that Gibbard made a statement which is
fully proven by preponderance of evi-
dence in this case that it was his orders
20 carry the water down to other users
below the plaintiff and his assignors, it
was the defendants duty to fill the con-
tract with the plaintiff and his assignors
to furnish them water as contracted for.
While it IL true that the witnesses for
the defendant testify that very small
quantity Of water passed down through
Fthe gates leading to the south slough
, and the Shanwald lateral, there is nc
Evidence showing any contractual rela-
tions between the defendant and his
assignors. Having established right
: to such water it was the duty o.
the defendant to furnish such water tC
the plaintiff and his assgnors. and hav
ing failed to do so. any damages whiel
u may have resulted by reason of sucf
shortage of water is recoverable in thil
action.
The defendant also contends that tn
plaintiff and his assignors cannot re
, cover for the reason that in many in
: stances, notes were given for the waite
rent, which had not been paid at tn
commencement OF this visit. In m.
i opinion there is nothing in this conten
) ton. It was the defendants right befor
contract was made to furnish water
to demand cash or reasonable securit
y therefor, and the defendant having con
tracted and undertaken to furnish sue
water, even though notes were execute
which were not paid until after the dan
age was done, or this suit brough
would not relieve the defendant Of il
duty to furnish said water. The defenC
ant having elected to take notes an
having attempted to furnish water,
cannot now say that it is not liable f'
damages because the notes were not pa
- when the injury was sustained.
With all the facts before the court
= the fact that abe plaintiff and his assiei
= ors purchased water from the defendal
and paid for same, and that the defen
ant has failed to furnish water contrac
ed for and has retained the contra
price, the fact that there was a shoT
: age in the crop OF the plaintiff and b
) assignors, that the lands did not vie
what other lands Of u similar characl
. yielded during the year, the fact tn
4 the land did not yield as it had yield
: in other years under similar condition
3 are facts that the court may take in
] consideration in determining the omou
Of dumagcst II is impossible to
Z down iron clad rule by which damas
I may be estimated or hScd with natl
I NAUTICAL accuracy 1t is always left
I the good judgment OF the court to det
i mine the same.
Under the evidence IN this case ! fin
and assess the damages allowed to
~ amount OF s4,l5s.lo.
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