Galiger v. Hansen

WATERS AND WATER COURSES ? TENANCY IN COMMON ? TRIAL DAMAGES ? APPEAL AND ERROR. 1. Trial ? Requested instructions properly refused. In an action by landowner against executrix of cotenant of irrigation ditch, which crossed landowners land, and another cotenant, based on theory that defendant cotenants had placed large and excessive quantities of water in irrigation ditch in violation of a decree defining number of inches of water each of three cotenants was entitled to place in ditch, requested instructions to effect that defendant cotenants were under duty not to make any greater use of ditch than permitted under decree and duty not to violate injunctive portion of decree and not to increase use of easement or size of ditch were abstract statements and too general and incomplete to be of any assistance to jury in determining meaning of decree and were properly refused. 2. Tenancy in Common ? Who may object to use of ditch. Tenants in common in any irrigation ditch rights and each of cotenants is entitled to exclusive possession of entire property as against everyone, except his cotenants, the only cotenant or other injured appropriator of water can object to use of irrigation ditch made by another cotenant and a stranger cannot. 3. Waters and Water Courses ? Water rights and ditch rights separable. Water rights and ditch rights are separate and distinct property rights and one may own a ditch right without a water right. 4. Tenancy in Common ? Instruction as to amount of water. In action by a landowner based on theory that large and excessive quantities of water had been placed in ditch in violation of a decree defining number of inches of water each of three cotenants were entitled to place in ditch, landowner was not entitled to instruction which set forth amount of water each defendant was entitled to place in ditch but was only entitled to instruction that defendant cotenants could not convey more than 254 inches of water, which figure included number of inches of water allotted to cotenant who was not named as a defendant. - Page 35