Defendant Must Pay For Water

Judgement for Plaintiffs in Sum of $800 for Water Rental for Four Years—Defendant Claimed Perpetual Water Right Without Compensation for His Land.

Judge Stewart yesterday rendered a decision in the case of Joseph Perrault and R.Z. Johnson vs. Enos C. Walling, wherein the plaintiffs sought to recover the value of delivering water to the defendant from the plaintiffs’ irrigating ditch during the years 1902 to 1905 inclusive. The parties in the case entered into a stipulation that a reasonable charge for said water is $2 an inch and the evidence showed that 100 inches had been used by the defendant annually during the past four years. The court decided that “plaintiffs are entitled to recover from the defendant the sum of $800, being a reasonable and fair charge for the rental of said water during the period named.”

In the decision Judge Stewart said the only question involved in the case was whether or not defendant had a right to take water from plaintiffs’ ditch sufficient to irrigate his lands without compensation. Walling claimed to be the owner of a perpetual water right in said ditch without compensation, while plaintiffs claimed he only had a perpetual water right in the ditch upon his paying a reasonable rental.

J.B. Walling, father of the defendant in this suit, was the original owner of the ditch. On February 5, 1888, he entered into a contract to sell four-fifths interest in said ditch to Joseph Perrault and in June of that year executed a quit claim deed to Mr. Perrault. The deed was absolute, so far as all the interests of Walling were concerned. On the same day a contract was entered into between Walling, Perrault and Johnson, owner of the one-fifth interest, whereby, in consideration of a right-of-way through Walling’s land for said ditch and the right to enlarge same if necessary, the owners agreed to furnish water to said Walling sufficient to irrigate his lands during the lifetime of said Walling and his wife. J.B. Walling and his wife have long since been deceased. Judge Stewart said:

“The fact that said ditch and the lands now owned by the defendant formerly belonged to J.B. Walling, does not give to the said land the right to perpetually use water from said ditch without paying a reasonable charge therefor, when the evidence shows that Walling sold said ditch without any reservation for a free water right for said land.”

Source: Idaho Statesman, April 14, 1910.

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