189 P. 986 | Or. | 1920
Lead Opinion
The allegations quoted from the complaint constitute all of the matter upon which the plaintiff in that pleading predicates his right to the water in question.
“An allegation, in ordinary and concise terms, of the ultimate fact that the plaintiff is the owner in fee, is sufficient without setting out matters in evidence, or what have sometimes been called probative facts, which go to establish that ultimate fact.”
In Hague v. Nephi Irrigation Company, 16 Utah, 421 (52 Pac. 765, 67 Am. St. Rep. 634, 41 L. R. A. 311), applying particularly to the appropriation of water, the precept is thus stated in the syllabus:
“Where the allegations of a complaint in a suit brought to determine the plaintiff’s right to the use of water of a stream state, in general terms, a cause of actioA by alleging clearly and distinctly ownership, invasion of rights, and injury, without distinct allegations of how plaintiff became the owner of .a water right, whether by appropriation, adverse user, or purchase, plaintiff’s title can be shown by proof, and the allegations will be sufficient to withstand a general demurrer.”
An analogy may be drawn from Rogers v. Miller, 13 Wash. 82 (42 Pac. 525, 52 Am. St. Rep. 20), where it is held that in an action to quiet title an allegation of ownership in fee admits proof of any title, including that acquired by adverse possession. On the
“In pleading an appropriation of water, the acts constituting such appropriation must be stated and not merely legal conclusions, so that, upon an inspection of such pleading it can be determined whether or not the facts stated constitute, in law, a valid appropriation of water for a beneficial use. ’ ’
The pleadings in these cases state that the water had been diverted, but fail to aver that it had been applied to any useful purpose, and on account of such omission the court held that the complaint stated merely conclusions of law.
“A complaint to determine the priority of irrigation water rights is insufficient where it does not * * show that any particular land needed irrigation, does not specify the amount of water diverted nor the amount needed to the acre, or for any specific land, and does not show how much water plaintiffs’ gran*618 tors acquired a right to use; an allegation that plaintiffs were entitled to all the water in a creek during the dry season being too indefinite.”
In Hough v. Porter, 51 Or. 318, 406 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728), Mr. Commissioner King, discussing the congressional legislation mentioned, reaches the following conclusion:
“Congress could reasonably presume that, if an appropriation were desired for the purposes mentioned in the act, some steps would be taken manifesting such intent, and that, if the owner is not the first to move in that direction, the person making an application thereof to a beneficial use within a reasonable time ought to be rewarded for his diligence, and he is entitled to have his rights in that respect recognized and protected. For this reason the settler who has acquired title to the land through which any stream may flow, took it subject to the rights of the person who has or who may subsequently make the first use of such stream for the purposes enumerated in the act, excepting only as to the natural wants and needs of such settler.”
Affirmed.
Rehearing
Denied June 29, 1920.
Petition for Rehearing.
(190 Pac. 726.)
On petition for rehearing. Denied.
Mr. D. W. Sheehan, for the petition.
Mr. A. S. Cooley, contra.
The defendant has presented a petition for rehearing in this case, wherein it is very earnestly contended that the conclusions reached in the original opinion herein are not justified by the evidence. We have therefore made a careful review of the record, and the result is that our former opinion is confirmed thereby. It is true that many years ago there was some sort of an agreement between the plaintiff and defendant’s predecessor in interest whereby arbitrators made a division of the waters of the stream, but defendant’s predecessor found that the water so allotted to him was so inadequate as to be valueless, and was abandoned more than ten years prior to -the commencement of this suit. The petition for rehearing is therefore denied.
Affirmed. Rehearing Denied.