Lee v. Salt River Valley Water Users' Ass'n ( 1907 )

PER CURIAM.

— This is a condemnation suit, in which five acres of a tract of one hundred and sixty acres of land are sought to be condemned for the use of a power canal being constructed by the appellee. The one hundred and sixty acre tract of land is irrigated from the common source through an irrigation ditch of the appellants constructed from a point on the river several thousand feet above the land in question. It is claimed that the construction, in the manner proposed by the appellee, of the improvement for the use of which the five acres of land of the appellants is sought to be condemned, will destroy, at a point some distance from the land in question, the ditch carrying water for the irrigation of the entire tract,- and thereby cause damage to the portion of the land of appellants not sought to be condemned. The question presented by this appeal is whether the appellants can recover in this action, under the pleadings and the record before us, not only the value of the five acres sought to be condemned and the damage to the remainder of the appellants’ land by the taking of such five acres, but also the damage caused to the rest of the appellants’ land by the destruction of the appellants’ ditch as stated. Upon this question the trial court was of the opinion that such latter damage was not within the issues and could not be determined in this action. Here the members of the court sitting are equally divided upon the question. The judgment of the district court is therefore affirmed.