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

page 241

AGRICULTURE UNDER IRRIGATION IN BASIN OF VIRGIN RIVER. 241 ground of the complaint so thoroughly and touched on so many points of interest that the following quotation is given: It is the contention of the plaintiff that while the defendant may ordinarily change the place of use of their water, yet where the circumstances show, as in this case, that an injury to a third party will result tl»?reby, it can not be permitted. This is true if the injury complained of is a legal injury, such an injury w would create a rmane of action against the wrongdoer. Is then the injury complained of in this case a legal injury? We think not. It in settled beyond controversy that the owner of the soil is likewise the owner of percolating water contained in such soil, and that he assumes the same right to control it as he does the soil. If this is true then the defendants in this case would have a right to prevent entirely the escape of any percolating water within the soil owned by them from without the l>oundaries of euch soil so owned by them and to collect and apply the same to some l>ene.ficial use. Had the defendants in this instance done this the plaintiff would not, by reason of such act on their part, have had legal cause for complaint. Allowing this seepage water to flow from their land for a long period of time, however, was no promise or guaranty on their |>art that they would always allow it to so flow, or that they would perpetually maintain on such tract the source of such flow, nor can such act on their part in permitting the creation and flow of seepage water l>e urged in estoppel of their right to use the water in such a manner that thereafter there will be no seepage. If the plaintiff by virtue of his appropriation acquired any right it is one of definiteneas and certainty. He acquired a right to have the same amount of seepage water flow correspondingly during the same season of each and every year. This means that the defendants would be held not only to use the same amount of water on the same tract each year, but further, that they must so use it that the seepage flow shall not be diminished in quantity. It means that should any crop other than meadow require or absorb more water and thereby decrease in amount the seepage flow, the defendants would be liable to the plaintiff for whatever of damage might result to him by reason of such diminution. A statement of these propositions shows of itaelf the falsity of plaintiff's contention. Under our statute the owner of water can treat it cither as personal property or as realty, and in view of this right it will hardly be ciaimed that the defendants in this case would not have the right to sell their water to a third yowiw, who would equally have the right to use the same for some l>ene-ticial purpose; it might be for irrigation or for the purpose of supplying some village or city with water for domestic use. And if defendants' grantee would have this right, surely the grantor would have an equal right, for the grantor can convey no greater right than he himself possesses. The decision on the demurrer was so clearly against the plaintiff that no further action was taken beyond tiling an amended complaint. CLAIMS TO WATER KKOM SANTA CI.AKA CREKK. A number of claims to water from Santa Clara Creek have been recorded with the clerk of Washington County. These do not give any clew to the extent of appropriations, yet a summary of them is inserted below as making a part of the record of water titles on the stream. January 2, 1806, W. L. Dykes and Joseph Lippman claimed the surplus and unappropriated water flowing in Pine Valley Narrows, and all that could t>e stored by dam or reservoir at that place, for irrigation in the Santa Clara Valley. January 4, 1N%, the same parties filed a claim for the unappropriated water in (Jniss Valley Narrows, and all that could be stored at that point for irrigation in the Santu. Clara Valley; and on the same day they filed another claim similar to their first one on Pine Valley Creek. April II, IHOH, the Utah and Pacific Improvement Company claimed all the water (lowing in SatiUt Clara Creek, about I mile below Foster's ranch, for irrigation on lands which are described in the notice. August Hi, 18yS, A. K. .Miller and George F. Whitehead claimed all the water flowing southerly from Fivemile Place, amounting to 50,000 miner's inches, for irrigation on the Santa Clara Bench and elsewhere. ISIS!) - No. 124-«>H------HI