The Glenwood post., 1918-01-05
IfltR CASES. S; !.
ss.ssssts 'ss- y s'ss yi.-,-
tAltllsPOsE:D. ]! Of
~ Il Conditional DEGREES
and Many Other Questions
Are Aired ID Court
An INTERESTING Week

To one interested in irrigation mat
ters, water DEGREES and the laws on
which the same are based, the past
week in the district court has been very
interesting. There are so many differ
ent angles to this irrigation business
that no matter how much fellow
studies it and thinks about it, there is
always something new coming up, and
the more one tries to learn and the
more he thinks he knows about it the
more he finds ahead of him to learn.
Last Saturday Judge Shumate heard
the injunction case of Dan Mccarthy,
E. and NJ Stauffacher, Sam Geigel and
Laurent Herin against Patrick Burns,
the plaintiffs seeking to restrain the
defendant from cutting the banks of,
and using more than his share of the
water in the Basin ditch in which all
parties to the suit are co-owners. IN
fact it was more in the nature of a
mandatory writ to compel Burns to
comply with the terms of an agreement
entered into years ago between all the
parties, or rather to restrain him from
violating that agreement.
The parties had trouble about fifteen
years ago and Burns was then accused
by his neighbors of unfair use of the
ditch, and he in turn made some ac-
cusstions aseipst them, the present
pfaintifls IN TINS suit. Tne mattef
found its way into court at. that time
and Judge shumate requested Division
Engineer Dickson to visit the ditch and
ascertain the trouble and report the
same to the court. This was done and
the suggestions therein made were EN-
bodied in court order.
Soon thereafter the parties all ell
tered into a contract along much the
same lines and it was thought that this
would end the matter Now the plain
tiffs allege bad faith on the part of
Burns and asked the court to compel
him to keep his agreement. The effect
of Judge Shumate' IS order is to enjoin
all the parties from violating the order.
Monday was heard the application of
Chas. f. Hughes to change the point
Of diversion from the Eby-Sullivan
ditch of 3 of a cubic foot of water
and from the Rowden ditch of s foot,
from their former headgates to that of
the Hughes Garden ditch from Three
Mile creek
The petition was protested by A. 5.
Appleby, owner of 2 cubic foot in the
Eby-Sullivan ditch, who claimed that
he would be damaged if the court al
lowed Hughes to abandon the ditch
and take his water through another
carrier. Judge Dollison, representing
Appleby claimed that his client was en-
titled to have the condition remain the
same as the existed when he or his gran
tor secured his decree. Judge Shumate
held that the provision of the statute
on this point contemplated that the
conditions should remain the same on
the stream and did not refer to con-
ditions in the ditch, there being a vast
difference in the meaning and effect Of
the two expressions.
In this case there has been much said
on the matter of abandonment, al
though this question was not brought
in issue at the hearing, the supreme
court having held that the question Of
abandonment must be raised in an orig
inal attack and cannot be raised in
the hearing of a petition for change
in point Of diversion. It is claimed
that the Rowden ditch never really had
an existence. The ditch was never
built, although it was plated and .
decree was obtained for 1t in an early
day. However, the testimony st Mon
days hearing showed that the.3 foot
of water decreed to the Eby Sullivan
ditch and the s foot decreed to the Row
den ditch had all been used ON the land
now owned by Hughes. Apparently
this established vested right in
Hughes and Judge shumste allowed
the change in point of diversion ss
prayed for, there being no proof that
anyone would BE- damaged by tn.
change, except tho testimony Of Apple.
BY to the effect that II Hughes water