116 P. 569 | Or. | 1911
delivered the opinion of the court.
The Umatilla River is an unnavigable stream which takes its rise in the Blue Mountains near the eastern boundary of the county bearing its name, and, after receiving various affluents, flows in a general north to northwest course in passing the lands mentioned in this suit. The holdings of the plaintiffs are on the west side and premises of the defendants are on the east side of the river. After the fall rains have set in and until the melting snows of the mountains are gone in the early summer, there is enough water for all purposes; but by July the river gets low, and, until some time in September, there is a scarcity of water for late crops, such as the second and third crops of alfalfa, and not enough to operate defendants’ mill to its full capacity.
The defendants seem to count upon the deeds from the former riparian owners to Koontz as giving the present owners of the mill unlimited and exclusive right to take the water of the stream in quantities ever increasing in proportion as their milling plant is enlarged, even to the diversion of the whole river into the millrace. We do not so construe the terms of those deeds, nor give them the effect desired by the defendants. The deeds conveyed to Koontz the right to divert from its natural channel and away from the land of the grantors, through the millrace, “such portions of the water of the Umatilla River as may be necessary for irrigating purposes along the line of said mill race and also to propel by water power any flouring or other mill which may hereafter be constructed by the said James H. Koontz, his heirs or assigns at or near the town of Echo.” This language of those deeds clearly indicates only a partial, and not a total, diversion of the stream as contemplated by the parties. It amounted to a license to the grantee to appropriate water sufficient for the enterprise then in view. He had the right to make one appropriation and to follow it up by actual application to the useful purpose designed within a reasonable time; but that would determine his right as of that date, if, indeed, it did not exhaust his privilege under that license. At any rate, each new enterprise or material enlargement of the old one requiring additional water would call for a new appropriation.
Under the principle already noticed that any material enlargement of an original project or the inauguration of a new enterprise requiring additional water would call for a new appropriation which must be in subordination to the rights of others as then existing, the testimony on the part of the plaintiffs is not clear as to the scope of the undertaking in which they and their predecessors in interest at first engaged. We are unable to determine whether either plaintiffs or defendants have merely carried out their original designs, or whether they have gone on into new and enlarged ventures, demanding more and more water, until, as appears by the pleadings, they both want all the water.
We conclude that the decree of the circuit court should be reversed and the suit dismissed without costs or disbursements to either party, and without prejudice to any other suit either may deem it advisable to institute concerning the matters in dispute.
Reversed : Suit Dismissed.