Utah exhibits [of the] State of Arizona, complainant, v. State of California, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, the Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego, defendants, United States of America and State of Nevada, interveners, State of New Mexico and State of Utah, parties

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240 IRRIGATION INVESTIGATIONS IN UTAH. owners thereof by Alexander Fullerton, the water master appointed by the owners of the water of Santa Clara Creek and its tributaries, thereby changing the flow of s#,id waters without being duly authorized or having the right to make .such change and use, contrary to the customs, usage, and the manner of distribution of the said waters for the past twenty years * * * and against the peace and dignity of the State." May 20, 19<>1, the court ordered the discharge of the defendant. The decision of the court came as a great shock to the water users prosecuting the case, who believed implicitly in the authority of the Santa Clara irrigation district over the water of Santa Clara Creek. It left no doubt whatever of the chaotic condition of water titles on the stream and showed the necessity for some speedy settlement. In his decision Judge MeC'arty stated that the evidence in the case did not show conclusively that the right to control the water in question had ever been surrendered to the irrigation district, and that it was questionable but that a court of equity would, on the evidence as it stood, allot to the defendant, Hunt, the stream in question. He stated, further, that the district water master had absolutely no right under the evidence to designate to the individuals within the subdistricts the amount of water they should take, that being the province of water masters of the subdistricts. George J/. Burgess v. J. A. Gardner and JR. J. Gardner.-On August 12, 1890, a complaint was tiled in the district court against John A. Gardner and Royal J. Gardner by George M. Burgess, alleging (1) that the plaintiff was the owner of a certain tract of land in Grass Valley and had a right to water to irrigate that land; (2) that the selectmen of Washington County, acting as water commissioners, had decided that James Rencher was entitled to a primary right to one half of the water of Rencher Canyon and that John A. Gardner was entitled to the other half; (o) that the said water commissioners had given secondary rights to the water of Grass Vrailey to John A. Gardner for 25 acres, to George M. Burgess for 80 acres, to H. Burgess for o~ acres, to B. Burgess for 15 acres, to R. Gardner for 5 acres, to E. Whippie for Hi acres, to R. L. Lloyd for 15 acres, and to L. Brown for 7 acres; (4) that since July 18, 1881, the plaintiff, George M. Burgess, had acquired, by purchase and appropriation, a complete title to tive-sixths of the secondary rights to the water of Grass Valley, and that he had used them until the spring of 1898, when the defendants diverted the water of Rencher Canyon at different places and used it on laud that had not been previously irrigated or cultivated, thus unlawfully depriving the plaintiff of his secondary rights; (6) that part of the land for which John A. Gardner had been granted a primary right by the county water commissioners was meadow adjacent to the main stream, from which the water applied in irrigation seeped back to the stream and flowed on to the land below holding a secondary right, and that the lands on which the primary rights had been used since 1898 were so situated that no water found its way back from them into the main creek. August 27, 1899; the defendants filed a demurrer to the complaint, alleging that it could not be ascertained from the complaint whether the plaintiff relied on an original appropriation, upon an award of certain alleged water commissioners, or upon a right acquired by purchase or by adverse use, and. further, that the complaint did not allege an appropriation of any water or the use of any water for any useful purpose. October 10. 1800, Judge E. V. Higgins sustained the demurrer. The decision on the demurrer covered the