Adams v. Cinemark USA

Waters and Water Rights — Dates of Appropriations — Evidence — Insufficiency — Public Lands — Settler may Convey Rights Orally — Ditch Rights — Acquisition by Prescription — Decree Requiring Removal of All Dams in Stream Held Too Broad — Modification. Waters and Water Rights — Dates of Appropriations — Evidence — What not Sufficient to Establish Rights. 1. Where, in a water right suit, there was oral testimony of a substantial nature showing the construction of two ditches and irrigation of lands through them in the years 1882 and 1883, findings of the court fixing the rights as of those dates will not Page 243 be disturbed on appeal even though a quitclaim deed and notices of appropriation described the dates as 1886 and 1888, but if error was committed it was harmless unless a claimant objecting could show that his right antedated the years found by the court. Same — Public Lands — Settler may Convey Rights Orally. 2. A settler upon public lands of the United States may convey his right therein, with water rights appurtenant thereto, orally, with or without consideration, to one who thereupon takes immediate possession thereof. Same — Decree Held not Open to Contention That It Violated Policy Requiring Fullest Beneficial Use of Water. 3. Contention that a decree in a water right suit requiring the holder of a right on the upper reaches of a stream to permit a large body of water to flow past his place to that of a prior appropriator, should not be sustained where the evidence shows that most of it would sink before reaching there and that a small amount would be useless, because contrary to the policy requiring the fullest beneficial use of water, held not well made, the evidence as a whole not warranting the deduction drawn. Same — Evidence — Hearsay — Recitals in Unrecorded Notice of Appropriation. 4. Recitals in a notice of an appropriation of water not recorded by the appropriator held mere hearsay and insufficient to even tend to prove his intention, understanding and actions in making the appropriation. Same — Ditch Right may be Acquired by Prescription by Adverse User for Statutory Period. 5. A ditch right across the lands of another may be acquired by adverse user for the full period of ten years required by the statute to bar an action with respect to real property. Same — Decree Requiring Removal of All Dams and Obstructions Held Too Broad — Proper Modification. 6. Since under section 7100, Revised Codes 1921, the construction of permanent dams in a stream is permitted for the purpose of raising the water to the level of the users headgate, a decree directing all parties to a water right suit to remove dams and obstructions when prior appropriators need water, could apply only to temporary obstructions; therefore, the decree ordered modified as to a dam of an objecting party in existence for many years, so as to direct the lowering of the headgate therein when necessary to supply the needs of prior appropriators, the court having the power to order the construction of a spillway thereafter if the means indicated prove ineffectual to insure a proper distribution of the water.