64 P. 304 | Or. | 1901
after stating the facts, delivered the opinion of the court.
The defendants having no apparent right to’the water, and not having adversely used it for the statutory period, can they be permitted to question plaintiff’s right to the use of'the water on account of such private ownership of land below his claim, and thus deprive him of said use for milling and mining, unless continued by him ten years for those purposes? While the rule is quite uniform that, to warrant relief by injunction, the party aggrieved must show a satisfactory title to the right involved, and, if such title be denied, or in doubt, a perpetual injunction will generally be refused against a defendant in possession until the complainant’s title is
The defendant Hampton testifiesThat when the plaintiff executed the right of way deed the latter represented
“Notice is hereby given that I have dug a ditch in sections 8 and 9, and claim for irrigation purposes the first right of three hundred inches of the water of Grave Creek which is run in a ditch on the north side of Grave Creek. The head of said ditch is in section 9, township 34 south, range 5 west, about two hundred yards above the Esther Quartz Mill. I have used said water along the line of said ditch nineteen years.”
This notice is a circumstance tending to corroborate Hampton’s testimony, but we think if it had been intended that the defendants were to have the use of all the water of said creek during the mining season, some mention thereof would have been made in the deed executed by the plaintiff. That deed, however, having contained no recitals to that effect, it is evident, we think, that plaintiff intended to reserve the use of the water flowing in his ditch during the mining season. It follows from these considerations that the decree is affirmed.
Affirmed .