The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1909-05-22

PRODUCED. 1t is necessary, therefore,
on this appeal to look to the affidavits
presented on motion for new trial
in order to ascertain the real facts
with reference to the duty of water on
these lands.
1t is the policy of the laws of this
state, and it has been so declared from
time to time by this court, to require
the highest and greatest possible duty
from the waters of the state in the
interest of agriculture and other use
full and beneficial purposes.
=. JUSTICE DEMANDS NEW TRIAL
After a somewhat extended and
very careful examination of the rec
ord in this case, we are convinced
that justice demands and the record
justities the granting Of a new trial
to the extent and for the purpose of
determining the question as to the
duty Of water on the two classes of
lands mentioned in this decree. For
this purpose the court can hear the
evidence of persons who are compe-
tent to testify on the subject and who
can do so, not from guess work or
hearsay, but from actual MEASURE
ments and tests and applications of
the water to the lands irrigated under
these appropriations. A new trial for
this purpose can do no harm or in
justice to anyone, and on the other
hand, if it should be found that eve
very slight increase in the duty of
water per acre can be had, it will, in
the aggregate, amount to several
thousand additional acres of land that
may be irrigated.
In determining the duty of water,
reference should always be had to
lands that have been prepared and re-
duced to a reasonable good condition
for irrigation. Economy must be re-
quired and demanded in the use and
application of water. Water users
should not be allowed an excessive
quantity of water to- compensate for
and counterbalance their neglect or
Incidence in the preparation of their
lands for the successful and economi-
cal application of the water. One
farmer, although he has a superior
water right, should not be allowed to
waste enough water in the irrigation
of his land to supply both him and
his neighbor simply because his land
is not adequately prepared for the
economical application of the water.
CONCLUSIONS OF COURT
We conclude that the court proper
ly taxed the cost of making this sur
vey and the maps and plats to the
several litigants in the case.
There is no other question pre-
sented that requires our further dis
cussion or consideration in this opin-
ion. The judgment will be affirmed as
to the respective rights and priorities
Of the several claimants and appro-
priators, whose rights have been liti'
gated in this case. A new trial will
be granted for the sole and only pur-
pose of determining the duty of water
on the two classes of lands involved
in this action, namely bench and bot
tom lands. This order for new trial
will also cover and include the ques-
ton of the duty of water under allot-
ments numbered and 80, being the
appropriations for the Jacobs Canal
Co., Ltd, and by Joseph Perrault and
R. q. johnson canal, dated from May
1, 1866. The question as to the duty of
water under these bitches and appro-
priations will be retired. On a re-
trial the court will hear such compe-
tent evidence as may be produced
touching the duty of water to be APP
piled to lands in Boise valley and ~
ling under the various canals taking
water from the Boise river. The
court in it's decree should also deter
mine and decree what lands are bench
and what are bottom lands.
In the event the court, after hear
ing the evidence, should determine
upon fixing a higher duty for water
than allowed by the former findings
and decree, and to therefore reduce
the amount per acre, it will modify
the findings and decree as to each ap
proprietor in proportion as it reduces
the quantity per acre below that fixeC
in the former decree.
The cost of this appeal will be texeC
against the several appellants, ant
the respondents who have appeared il
this court, in proportion to the guam
tity of water allotted to each unde
the decree as originally entered in thi
case.
Naaw