WATERS AND WATERCOURSES - DIVERSION - PRESCRIPTIVE RIGHTS OF SERVIENT RIPARIAN OWNER

Authors

Abstract

When new waters, formed by seepage and waste from an upper irrigation ditch, began to flow as a stream, they were intercepted by a canal of the defendant irrigation company. At the point of interception a needle gate and spillway were constructed. This gate was kept closed, however, and the waters were diverted along the canal for more than the prescriptive period. The plaintiff sought an injunction restraining the defendant from opening the gate, allowing the intercepted waters to pass through into the plaintiff's drainage district. The theories of the plaintiff were: (a) the defendant's irrigation canal had become the natural course of the water, hence could not be changed to the injury of the plaintiff; (b) since the defendant had acquired a right to the waters by prescription against the plaintiff, the plaintiff had acquired a reciprocal prescriptive right to have the diversion continued; (c) the defendant was estopped from ceasing to divert the water. Held, the plaintiff is not entitled to the injunction because: (a) the irrigation canal had not become the natural watercourse, the needle gate making it obvious that there was no intent permanently to divert the water; (b) even if the defendant had a prescriptive right to divert the water formed in this way, there was no reciprocal easement by prescription on the part of the plaintiff, since there was no use adverse to the defendant; and (c) the plaintiff had not acted in reliance on the continued diversion, hence there was no estoppel. Mitchell Drainage District v. Farmers' Irrigation District, (Neb. 1934) 256 N. W. 15.

Recommended Citation

WATERS AND WATERCOURSES - DIVERSION - PRESCRIPTIVE RIGHTS OF SERVIENT RIPARIAN OWNER, 34 Mich. L. Rev. 299 (1935).
Available at: https://repository.law.umich.edu/mlr/vol34/iss2/17