238 F. 519 (8th Cir. 1916), 4512, Weiland v. Pioneer Irr. Co.

Docket Nº:4512.
Citation:238 F. 519
Party Name:WEILAND, State Engineer, et al. v. PIONEER IRR. CO.
Case Date:November 18, 1916
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 519

238 F. 519 (8th Cir. 1916)

WEILAND, State Engineer, et al.

v.

PIONEER IRR. CO.

No. 4512.

United States Court of Appeals, Eighth Circuit.

November 18, 1916

Charles L. Allen and Fred Farrar, both of Denver, Colo. (George P. Steele, of Denver, Colo., on the brief), for appellants.

Edwin H. Park, of Denver, Colo., for appellee.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

CARLAND, Circuit Judge.

The Pioneer Irrigation Company, a Nebraska corporation, hereafter called the plaintiff, commenced this action against John E. Field, state engineer, Filmore Cogswell, division engineer, and Dwight L. Bower, commissioner of water district No. 65, as officers of the state of Colorado, having official duties to perform in reference to the distribution of water from the streams of said state for irrigation purposes, and against the owners of other irrigating

Page 520

ditches diverting water from the North fork of the Republican river in Colorado; said defendants being citizens of said state. After a hearing upon pleadings and proofs, a decree was entered for the plaintiff, and defendants appeal.

The complaint alleged: That the plaintiff was the owner of an irrigating ditch diverting water from the North fork of the Republican river, a natural stream arising in the state of Colorado and flowing in its natural state in at least some quantity into the state of Nebraska. That said ditch had been constructed with reasonable diligence commencing April 4, 1890, and diverted water from the river aforesaid at a point in Colorado, some miles distant from the line between Colorado and Nebraska, and irrigated some lands in Colorado and some in Nebraska. That the plaintiff and its predecessors in title had maintained the ditch for irrigation and domestic purposes from the date of its construction to the commencement of the present action on August 8, 1913, without complaint on the part of any one. That said ditch had a carrying capacity of 92 cubic feet of water per second of time, diverted and applied as follows: Fifteen second feet in Colorado, and 77 second feet of water for the irrigation of lands in Nebraska. That said 92 feet had been carried and put to beneficial use by said ditch for lands in Colorado and Nebraska without hindrance during the time above mentioned. That the value of said ditch was $200,000; the portion thereof in the state of Nebraska being of the value of $150,000. That the defendants, who were ditch owners, failed to maintain headgates as required by the laws of Colorado on their ditches through which water could be measured. That the defendants, state officers, failed to require said ditch owners to maintain headgates as required by law, although often requested so to do by plaintiff. That plaintiff had requested said officials to allow 92 cubic feet to be turned out from the Republican river to plaintiff's ditch, but that said officials had refused to allow more than 15 feet as a priority to plaintiff's ditch, and also refused the right of plaintiff to divert water for use in the state of Nebraska. Said state officials did allow, however, ditch owners junior to that of the plaintiff to divert and apply water, regardless of the rights of plaintiff. That said officials allowed the owners of ditches prior in right to plaintiff to divert more water than they could put to beneficial use; the complaint alleging specifically excessive diversions by ditches having an earlier date of priority than that owned by plaintiff, and that the water so diverted by them could not be measured on account of the failure to install proper headgates and measuring...

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