The Glenwood post., 1905-06-17

For several years ranchmen and
others interested in irrigation have
placed various constructions upon
Chapter 105 of the session laws of 1899
commonly referred to as the irrigation
loan law. The first two sections of
this act refer to the change in point
of diversion of water from public
stream and provide that such change
can only be made when the court is
satisfied that it will not injuriously
affect the rights of others. The third
section which Senator Taylor, the
author of the act claims was introduc-
ed as rider to his bill and which he
says did not meet with his approval,
provides for the loaning of water by
one ditch owner to another
Although the irrigation officials
have been unable heretofore to secure
from Professor Carpenter, the former
state engineer, a definite construction
of this law, or positive advice as to
their duties under the same, the divi-
sion irrigation engineers of the state
with one exception have considered it
practically impossible to comply with
this law in accordance with the broad
demands of interested farmers because
to do so meant to nullify the constitu-
tional provisions governing priority
rights. E. r. Chew. the division
engineer of Division No. 2 which in
cludes the entire Arkansas valley, was
the single exception and took the view
that an appropriation of water can use
the water himself or loan it to
neighbor having Junior right if he so
desires. The contention of Mr.. Dick
son. division engineer of Division No.
s, has been that to permit such use
of water must necessarily be done at
the expense of intermediate appropria'
tors and to do this would destroy the
we'll established principle of priority
Of appropriation.
The supreme court in the case of
the Fort Lyon Canal company vs.. E.
r. Chew ct al, has recently passed
NPoA thio huttCl, Auiih6 oSoihoe A"A
Chew and deciding the case in accord
ance with the views heretofore express
ed by Mr.. Dickson and other division
engineers, also upholding the construc-
tion placed upon this law few years
ago by Judge Shumate of our own dis
trict court in the Roam creek case.
In the case IN dispute, the Arkansas
Valley Ditch and Reservoir company
and the Catlin Consolidated Cnal
company had secured priorities senior
to- and the Twin Lakes Land and
Water company and the Laguna Canal
company later than that IF plaintiff.
The Arkansas Valley company, claim
ing to have at the time in question no
present need for water to supply its
consumers, loaned, or pretended to
loan, to the Twin Lakes company a
certain quantity of water and its pri-
ority therefor to which its lender
claims it was the entitled. The
Catlin company attempted to make a
similar loan to the Laguna company,
i uo statutory HotlSe was seiNou anu
the water commissioner under direc-
tion of the division engineer, recog-
nized the demands and threatened to
carry them into effect by divertilg to
the borrowers the quantity of water
specified in the notice.
The plaintiff company being an
intermediate appropriation, claimed
that such conduct on the palt of the
irrigation officials would work to it
great injury and ha-dship; that the
borrowers we're junior appropriations to
the plaintiff company and that if the
senior appropriations were not az they
claimed in need of water, it should be
turned back into the stream for the
benefit of the plaintiffs whose appro-
priations were senior to those of the
borrowers.
The plaitiff company secured tenn
porary injunction but at the final
hearing in the district court the action
of Mr.. Chew in recognizing the loan