Gearhart v. Frenchman Valley Irrigation District

Rose, J.

This is am application to the state board of irrigation for the adjudication of a water right. Gearhart and Benson, plaintiffs, claimed the right to divert from the Republican river 200 cubic feet of water a second for the purpose of operating a flour-mill near Arapahoe. Their claim was resisted by defendants, who are upper appropriators of water for irrigation. The work of constructing the plant owned by plaintiffs was begun July 24, 1879. It was completed December 31, 1879. Since that time the right thus acquired has been continuously exercised. Separate, adjudicated appropriations of defendants date from 1890 to 1912. The state board of irrigation decreed that plaintiffs acquired the right to divert for power at the head-gate of their millrace 195 cubic feet of water a second, and that the appropriation dates from July 24, 1879. Defendants have appealed.

It is argued by defendants that plaintiffs have no valid appropriation, because they did not give notice of their claim or present it to the state board of irrigation for adjudication until Jnne 10, 1912; that the doctrine known as “balance of convenience” should be applied, because the use of water for irrigation is more important than its nse for power; that the claim of plaintiffs should have been rejected, because they allowed defendants, without notice or objection, to expend |300,000 in improvements for the purpose of using for irrigation waters of the Republican river and its tributaries. On the record in the present case, there being no dispute about the controlling facts, these propositions are questions of law which were recently decided adversely to defendants in the case of Kearney Water & Electric Powers Co. v. Alfalfa Irrigation District, ante, p. 139. It is unnecessary to restate the rules of law announced in the case cited or the reasons for the conclusions reached. The findings of the state board of irrigation are proper deductions from the evidence, and the decree correctly applies the law.

It was assérted in argument below that defendants had acquired prescriptive rights superior to the claim of plaintiffs, but this question is not adjudicated.

Affirmed.

Letton, Fawcett and Hamer, JJ., not sitting.