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DENVER & RIO GRANDE WESTERN R. CO. v. HIMONAS

No. 4242.

190 F.2d 1012 (1951)

DENVER & RIO GRANDE WESTERN R. CO. v. HIMONAS.

United States Court of Appeals Tenth Circuit.

Rehearing Denied July 28, 1951.

Attorney(s) appearing for the Case

Grant H. Bagley, Salt Lake City, Utah (W. Q. VanCott, S. N. Cornwall, Dennis McCarthy and Clifford L. Ashton, Salt Lake City, Utah, on the brief), for appellant.

Brigham E. Roberts, Salt Lake City, Utah and Edward Sheya, Price, Utah (Calvin W. Rawlings, Harold E. Wallace, Parnell Black, Wayne L. Black, Salt Lake City, Utah and B. L. Dart, Price, Utah, on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The appellee, a farmer and rancher near Sunnyside, Utah, sued the appellant Railroad Company, claiming a prescriptive right for the use and maintenance of an irrigation flume across the Railroad's right of way. It was alleged that since 1926, the appellee and his predecessors in interest had used the flume as a part of his irrigation ditch to take surface or flood water from Grassy Trail Creek on the east side of the railroad, to the west side...

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