Rodgers v. Pitt

Citations

• 129 F. 932
• 1904 U.S. App. LEXIS 4782

Syllabus

<p>1. Water Rights — Suit to Enjoin Diversion of Water — Parties.</p> <p>A number of owners in common of a dam flume and irrigating ditch, who by agreement divide the waters flowing in the ditch between them, are tenants in common of the water rights, and one may alone maintain a suit to enjoin the diversion by a subsequent appropriator of any portion of the water to which he or either of his co-tenants is entitled.</p> <p>2. Res Judicata — Interlocutory Decree — Questions Reviewable on Fi-</p> <p>nal Hearing.</p> <p>All questions decided on a motion for a preliminary injunction are open for review on the final hearing, but the prior decision should be adhered to unless additional facts appear which require its modification or reversal, or it clearly appears that an error was committed.</p> <p>3. Water Rights — Appropriation of Water — Extent of Right Acquired.</p> <p>To establish an appropriation of water from a stream, the proof must show an intent to apply it to a beneficial use existing at the time, an actual diversion from the stream, and the application of it to such beneficial use; but the right is not limited to the amount of water used at the time the appropriation is made, but extends to such other and further amount within the capacity of the appropriator’s ditch as may be required for the future improvement and extended cultivation of his lands for which the appropriation was made, his intention, and the object and purpose for which it was made, and his acts in carrying out such purpose, being taken into consideration.</p> <p>4. Same — Diligence in Applying to Beneficial Use.</p> <p>To entitle an appropriator of water to claim his rights therein by relation to the time when the appropriation was made, he must have pros-</p> <p>f 2. See Injunction, vol. 27, Cent. Dig. § 341. ecuted the work necessary to apply it to the beneficial use intended with reasonable diligence; what constitutes such diligence being a matter depending on the facts in each particula