510
"J'EDEnAL<REPORTER,
vol. 64. -
thm.ri duty tor tl1efr istockholders (Greenv. Canaan, 29 Conn. 157; WiUtMna, v.Ratlroa6 Co., 39 Conn. 509). '.Dhe .appellant. cites the v. City of Chicago: (Ill. Sup;) 30 N. E. 1036/Where . ,. .. act' of congress donating lands for the construetf1i>n:·ofa rat1l:'oadanditAe ,charter of the l'IlUrQall: companY, the strip of of, de:voted to·a certain specified purpose,. ,and cannot from that p u r p o s e , " , ' .
IilO quoted from the decision. in that case, must be Gon$WEtre,d int1l8 Jightof the quel;ltion then before the court. It special assessment against th\'! right of way of the Dlin.oilJOentral Railroad.to pay for the impr9vement .of a street, nppn't4e theQry that the right of. way ·was benefited by the street Theq9qrt held tll{Jt the rigb.tof way ,granted by for a:special.pul,'pose was not chargeable with .such an asthatthestripiso devoteqto public use was not land whiCh off intc;dQtaand blocks, and sold by the railroad com: panYfQrJja,9wnadyantage, or uSf}d as ,private property is used by indiv:i,duf¥ls; and itlil :value, fqr .the purpose for which it of. being by the impro'Vc-ment oian adjacent street. This is far frOOlllolding that a railroad compAAY ;rpaynot, in recognition of public interests, and for the promotioI).p:flthepublic we],fare, to the public an easement over itlJ .right of way which does not interfere with its own use of the same cfor a railroad. The decree is affirmed, with costs to the appellees. :HEWITT v. STORY et at of 4.ppeals, Ninth :Circuit. No; 102. R;
November 1, 1894.)
'ltndothets, in 1869, located It ditch appropriating, for the purpose of irrigatlngd:l!.elr, landsjtbe waste wa'-er of the A:.. river; remaining after the N. ,F., ditches, previously located, hlJ.d been supplied. Such ditcb·:W8.l,!l!,called the "B.. R. Ditch." .The water appropriated. by it being insUflicieIltfor their the owners of the B., R. ditch purchased shares in the' S.ll\ ditch, and diverted the water so acqUired through the B. R. ditch., ,SubsequentlY,by their consent, other :Owners of shares in the S. F., ditch, their water through the B.R. ditch, and in and after 1874 all belonging to the owners of the S. F. ditch was taken by them tll;rl:iugh the B. R. ditch, with the consent of the owners thereof, on .condition of contributing to the expense, of enlarging and repairing ,Stlbsequ6ntly, the rOllteof the.B. R. ditch was twice changed, and theWlJ.terbelonging to the <lwners of the S. F. ditch ,vas for more than five ,years. conducted through B. R. ditch, and all the water BUch ditch was allotted according tothe intcre.sts of the bwriersofsuchS.F. ditoh,who tookcomlliete possession, use, and control of, the, B. R. ditch, adversely to ,1UIy ,right or claim under the original! Complainant and his predecessors in title, the owners of the .orlginally supplied by the }3. R. and the locators of sucb· ditch, ·knew of' and', acquiesced. in such use, and shared in 'the water 6111y' according to their shares in S. Ii'. ditch" without objection to , su<lh contributed to the altel'atlon and repair of, the B. R. ditch only in prop0J,"Uon totheir shares in. thl) S, F. ditch. In 1887 complainant
OF WATER RIGHTs-IRRIGATING DITCHES.
the
HEWITT 'Ii. StORY.
511
brought suit to establish a right to a specific quantity of the water ot the A. river, in virtue of the appropriation by the B. R. ditch. HeW, that the use of the waste water in the B. R. ditch was abandoned through nonuser on the part of complainant and his predecessors in title. Knowles, District Judge, dissenting.
Appeal from the Oircuit Oourt of the United States for the Southern District of Oalifornia. This was a suit in equity by Isaac L. Hewitt against Warren Story and 66 others to establish a right to certain waters for irrigation purposes. A motion to dismiss was denied (39 Fed. 158), and the cause was next heard on objections by certain of the defendants to the amended bill of complaint. The objections were disallowed. 39 Fed. 719. Subsequently, on further hearing, the bill was dismissed (51 Fed. 101), and complainant now appeals. This is a snit in equity. The bill of complaint alleges the wrongful and unlaWful diversion' of certain waters by the appellees, 67 in number, including certain corporations, companies, associations, and individuals, using and claiming wawr by appropriation from the Santa Ana river, in San Bernardino county, Cal. It prays for a decree entitling appellant to a specific quantity of water, and for an injunction, etc. The bill was filed in January, 1887. Appellant claims to be the owner in possession, and entitled to the possession and use, of 333% inches, under a 4-inch pressure. of the waters of the Santa Ana river, which he alleges were appropriated by his predecessors in interest through and by means of a certain ditch known as the "Berry Roberts Waste-Water Ditch." The Santa Ana river is an unnavigable stream of running water, flowing through sundry wild caiions and ravines in the San Bernardino mountains, and emerging therefrom into the San Bernardino valley through the mouth of a steep ravine near the eastern boundary of the valley; and the waters thereof have been and are held and owned, for many miles above and below the entrance to the Berry Roberts ditch, eXclusively by right of appropriation, and used generally for the purpose of Irrigation. Long prior to the location of the Berl"3' Roberts ditch, two appropriations had been made of the waters of the Santa Ana rlver,-one by means of the North Fork ditch, owned by the North Fork Water Company, a corporation, which taps the river near the point where it debouches from the mountains into the valley; the other by means of the South Fork ditch, owned by an association of individuals designated in the bill of complaint as the South Fork & Sunnyside Division of the Santa Ana River, which takes water from the river some distance lower down. The owners of these ditches have, at all times since acquiring their water rights, kept these ditches In repair. Prior to 1860 tl1ere were but few people using- the water from the ditches, but, before the Berry Roberts ditch was located, the number had been largely Increased. 1'he ditches have since been enlarged, and many tl10usands of dollars have been expended thereon. The actual extent of tl1e appropriation by the North Fork and South Fork ditcl1es, prior to the location of the Berry Roberts ditch, is not clearly defined, and, under the views hereinafter expressed, the precise amount of water which each ditch Is entitled to need not be determined. Subsequent to the location of tl1e Berry Roberts dltcl1, two appropriations of water frcJm the Santa Ana rlYer nearer its head have been made: One, the Brown and .Judson ditch, owned by the Redlands Water Company, a corporation, which was located In the spring of 1881, and conveys water to the town of Redlands for irrigation and domestic purposes. Every year since Its construction, extensions and improvements, Involving large expenditures of money, have been made. The other, the Bear Valley dam and reservoir, owned by the Bear Valley Land & Water Company, a corporation, was located In .June, 1883. l'hls corporation, in the spring of 1883, bought three or four thousand acres of land situated In the lower. portion of Bear Yalley, and constructed a dam at the point where the lower edge of the valley adjoins the head <>f Bear canon, for