[Download] "Woodward v. Perkins" by Supreme Court of Montana " Book PDF Kindle ePub Free
eBook details
- Title: Woodward v. Perkins
- Author : Supreme Court of Montana
- Release Date : January 15, 1944
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
Waters and Water Rights ? Development of Additional Supply ? Burden of Proof ? Seepage Water ? Insufficiency of Evidence to Show Creation of new Supply ? Acquisition of Right by Prescription ? Estoppel. Waters and Water Rights ? Development of Additional Supply ? Burden of Proof. - Page 47 1. Where the holder of a decreed water right claims to have developed an increase of water in a creek available for irrigation and asks the court to establish his right to the extent of such increase, he has the burden of establishing such increase by satisfactory evidence. Same ? Ownership of Land where Water has Source ? Others may Acquire Rights therein. 2. The ownership of land where water has its source does not necessarily give the exclusive right to use such water to the landowner so as to prevent others from acquiring rights therein. Same ? Seepage Water ? Rights of Appropriators. 3. Seepage water which has its rise along the bed of a stream and forms a natural accretion thereto belongs to that stream as a part of its source of supply, the same as do feeder springs, and an appropriator of water on such stream has the right to all such tributary flow even as against the owner of the land. Same ? Alleged Newly Developed Flow ? Insufficiency of Evidence that Claimant had Created new Supply ? Case at Bar. 4. In an action to enjoin one of a number of water claimants all of whose rights in the stream in question had been decreed in 1892, from diverting a quantity of water, in addition to what had been decreed to him, equal in amount to an alleged newly developed flow said to have been created by him on a small plateau in the upper reaches of a tributary of the parent stream by conducting water therefrom, at times of the year when not needed for irrigation, to and filling several depressions on such plateau some eight feet deep and varying in size from two to six acres in area, variously called "potholes" and "reservoirs", the soil of which was so porous that the water so put into them would seep away in a short time, he then capturing the seepage by means of ditches dug at the foot of the plateau and measuring it before it entered the flow of the stream above defendants diversion point, and thereupon taking from the stream an amount equal to that so captured for the irrigation of his lands, evidence held insufficient to warrant a finding that defendant had created a new supply of water as to which he was entitled to an additional water right. Same ? Acquisition by Prescription ? Essential Requirement ? When Claim not Meritorious. 5. In order to acquire a prescriptive right to the use of water in an adjudicated stream, the user must have been detrimental to the one whose title and right are said to have been destroyed, and therefore, where the adverse claimant predicated his right upon the fact that his thirty years of alleged use had in no way lessened the source of water supply for the other decreed rights nor tended to destroy their rights, his claim was not meritorious. Same ? Acquisition by Prescription ? Estoppel. 6. One who claims a water right under a decree of long standing in an action to which his predecessor in interest was a party, is estopped from claiming a right by prescription as against any of the rights establishing by that decree.