The Delta independent., 1915-08-13

The estimates were arrived at by
computing the drainage area and by
inquiry among old stockmen residing
ed that the average run-off is around
one hundred and twenty thousand acre
feet--only little over fifth of what
was figured upon. The Kuhns sold
the water rights for $40 an acre and
| bonded the system for nearly two
million dollars More recently they
went into bankruptcy and the bond
holders find that the liens they pre-
sumed they had on the settlers lands
for the security of their bonds are in
fact contract liens, and that the con-
tracts have not fulfilled and never can
be because of physical conditions as
just outlined
The position their attorneys took
was that the settlers merely bought
a proportionate share in the irrigation
sy stem-water or no water; and when
the court rejected this proposition
they adopted the contention that the
/ SNcA
omic duty of water-that is such an
amount as might be determined by
experts versed in the theory of the
most scientific application of water
to beneficial use. The amount of wa
ter contended for by the settlers is in
accordance with the practice on this
and other tracts in Idaho-just slight
ly above the duty of water placed for
! this project by Don II. Bark, a gov
ernment investigator. Do not get the
impression that the settlers were try
ing to hog something.
Incidentally, | would like to call
attention to a fact that / believe will
interest your readers and this is that
so far as can find out this is the
/ first time an irrigation company has
been brought TO the bar of justice by
a voluntary settlers organization and
much credit is to be given to their
attorneys. c. o. Longley and W. Z.
Golden who stood so steadfastly by the
water consumers association. The
settlers. the vast majority Of them
poor and actually in desperate circum'
stances. advanced sufficient funds to
handle the case in very competent
manner. retaining experts and engin-
eers to testify upon the points which
| similar experts for the company en-
deavored to sustain.
The Judge of the district court held
that the contract must have appeared
to be reasonable one for the company
to make and no argument of improba-
bility is available as a ground for
qualifying the meaning which the
phraseology naturally imports. While
the settlers are entitled to a measure
of relief. feasible remedy is not
so clear The obvious course would
be TO require the company to supple
ment its existing water supply but
additional water is not to be had. II
IL be suggested that the area of the
tract be reduced by cutting off all
contracts executed after the full ca
pacity OF the system had been sold
IL Is to be said that even should 1t be
held that such course is legally pos
lsible. II could not be taken without the
presence of all the contract holders
Furthermore. it is not impossible that
some of those who contracted last
have been more dilligent in reclaiming
their lands and placing improvements
thereon than those who contracted
earlier. So of the suggestion that all
contracts be scaled down proportion
ately both in the amount of the water
right and the consideration to be paid
therefor. the practical difficulties are
very great and we have not before
us the contract holders, who are ad
mittedly Indispensable parties to such
relief The company should. OF
course, sell no more water rights. and
II II be necessary should be restrained
from so doing. An order or an inter
locutory decree will be entered re-
straining the company from making
any contracts or waving any right OF
forfeiture of existing ones, and also
restraining it, together with the other
defendants. from collecting or attempt
ing to enforce payments upon the con.
tracts until the settlers have been
provided with the water supply con
tracted for or are given trustworthy
assurance that It will be provided