78 P. 1028 | Or. | 1905
delivered the opinion of the court.
This suit was commenced by the Board of Regents of the Agricultural College to establish an alleged right to the use of a part of the waters flowing in what is known in the record as the “Godley Ditch,” to restrain the defendants from closing certain tap ditches taken therefrom, and to enjoin and restrain them
Thereupon a controversy arose between them and the plaintiff as to the respective rights of the parties, and in June, 1902, a conference was had between the president and secretary of the plaintiff, the director of the station, and the defendants for the purpose of settling such conflict and controversy, and it was then agreed, as we think the preponderance of the testimony shows, that as a settlement thereof the defendants should deepen the Godley Ditch west from the slough so as to prevent the water from unnecessarily accumulating in the slough and overflowing and subirrigating plaintiff’s land; that in the meantime the drain box previously put in by the director should remain in place, and the defendants should be permitted to take water for the irrigation of their lands for the season of 1902 through and across the lands of the plaintiff, tapping the Godley Ditch north of the slough. There is some conflict, it is true, in the testimony upon this point, but Mir. Weatherford, the president of the board of regents, Mr. Daly, its secretary, and Mr. Leckenby, the director in charge of the station, all testify directly and unequivocally that the settlement and agreement were made as stated; and, while their testimony is contradicted by the defendants, the preponderance of the evidence is, we think, unquestionably with the plaintiff. The defendants did not comply with this agreement and deepen the ditch west of the slough, but, on the contrary, in the spring of 1903 cleaned out and enlarged the ditch leading from Catherine Creek to the slough on the east of the Warren Tract, and were threatening to turn an increased amount of water therein, when this suit was commenced. The defendants have an undoubted right to an easement over and across the lands of the plaintiff for their ditch and water right, with the right to use the slough at the southeast corner of the Warren Tract as part of their ditch.
Aeeirmed.