122 P. 42 | Or. | 1912
Lead Opinion
On Motion to Dismiss Appeal.
delivered the opinion of the court.
The motion to dismiss the appeal is overruled.
Motion to Dismiss Denied.
This is a suit in equity by Andrew Cantrall and A. S. Kleinhammer for an injunction against the Sterling Mining Co., a corporation, to prevent an interference with certain water rights acquired by appropriation by plaintiffs’ grantors in the water of Little Applegate Creek, in Jackson County, Oregon. From a decree in favor of plaintiffs, defendant appeals. Modified,
Opinion on the Merits
On the Merits.
The plaintiffs in this suit complain of the defendant for an alleged interference with their water right arising from an alleged appropriation by the plaintiffs’ grantors of the water of Little Applegate Creek, amounting to 500 inches, under six-inch pressure, in each of two irrigation ditches which they describe in their complaint.
The plaintiff Cantrall is the owner of certain lands described in the complaint, and the plaintiff Kleinhammer claims an equitable interest in the same property by virtue of a ' contract for the sale of the same by Cantrall to himself. As there is no dispute about their relations to each other, they will be sometimes mentioned
“That plaintiff’s grantors, more than 10 years prior to the irrigating season of 1908, appropriated and diverted of the said waters of the said Little Applegate for each of said ditches 500 inches of water, under a six-inch pressure, for irrigating and domestic purposes, and conveyed the same, by means of said ditches, down to and upon the said described premises, where the same have been used by said plaintiffs and their grantors each and every year since the date of appropriation and diversion down to the irrigating season of 1908. * * That plaintiffs and their grantors, for more than 10 years immediately prior to the irrigating season of 1908, have taken, appropriated, and used the said waters for said irrigation and domestic purposes through the said ditches on said first-described premises openly, notoriously, continuously, and adversely to the interests of this defendant and all the world, and for more than said 10 years have been in the open, notorious, continuous, hostile, exclusive, and adverse possession, use, and enjoyment of all of the said waters for the said purposes, as against said defendant and all the world.”
It is further stated, in substance, that the defendant owns a ditch taken out of the Little Applegate creek above the point of plaintiff’s diversion, through which it uses the water for mining purposes on Sterling creek, and that in the year 1908 the defendant diverted through its ditch, in the irrigating season of said year, such a quantity of water from Little Applegate as to conflict with the irrigating rights of plaintiffs. They further aver that the defendant threatens and intends to continue such diversion, to the irreparable injury of the plaintiffs.
For an affirmative defense, the defendant substantially avers a prior appropriation, beginning in 1874, of 8,500 inches of the waters of Little Applegate creek, under six-inch pressure, miners’ measurement, for mining, irrigation, and domestic uses and the continuous, open, notorious, and adverse use of the same down to the present time, and that plaintiff’s alleged appropriation is subsequent and subordinate to the prior appropriation of the defendant, stated in the answer. The reply traverses the affirmative allegations of the answer.
The court below, after hearing, decreed that the defendant should turn down Little Applegate creek, past the intake of its ditch, each year during the irrigating season 979 inches of water, under six-inch pressure, miners’ measurement, for the use of the plaintiffs, and that when the use of the plaintiffs was thus satisfied they should notify the defendant, so that it could then resume its use of the water. The court enjoined disturbance of the plaintiffs’ rights thus established, and the defendant appeals.
The plaintiff Cantrall derived his title to the lands described in his complaint from three sources. His holdings consist of the Riley Phillips place, bought in 1881, of the Harwick place, bought in 1885, and the Samuel Phillips place, bought in 1888. Little Applegate creek, in the valley in which the plaintiff’s lands are situated, is augmented by Glade fork and Phil Gleave fork and sun
“This indenture witnesseth: That whereas, U. S. Hayden, T. Cameron and R. S. Armstrong propose to take 1,800 inches of the waters of Little Applegate creek, of Jackson county, in the state of Oregon, in a water ditch for mining purposes, at a point on said creek above the land now owned or occupied by me: Now, therefore, I, Samuel Phillips, in consideration of one ($1.00) dollar to me paid, the receipt of which I do hereby acknowledge, I do by these presents relinquish to said Hayden, Cameron and Armstrong, their heirs and assigns, any right or privilege I may have to the waters of said Little Apple-gate creek for the purpose aforesaid, excepting and reserving for myself, my heirs and assigns, so much of the water of said creek as shall be necessary for irrigating purposes at any time of the year on said land now owned or occupied by me. And I promise and agree, for myself and my heirs and assigns, not to prevent or to hinder said Hayden, Cameron and Armstrong, their heirs or*522 assigns, from taking out or using all of the waters of said creek the waters aforesaid, or claiming any damages therefor, excepting the reservations aforesaid.”
On the same day, Riley Phillips executed a writing in identical terms. These two instruments were acknowledged, delivered, and recorded in the deed records of Jackson County, Oregon, and the defendant, by mesne conveyances, has succeeded to all the rights of the grantees therein. The irrigable area on the two Phillips places, taken together amounts to 100 acres.
The testimony shows that from time to time during the irrigating season of the succeeding years down to 1908, at the request of the plaintiff and his predecessors in interest, the defendant would turn down Applegate creek, from the head of its ditcbj water for the use of the plaintiff in irrigation. After a few days of use, upon notification by the plaintiff, the defendant would again resume use of the water through its ditch. No dispute arose until 1908, when the plaintiff Kleinhammer according to his testimony, sent word by the plaintiff Cantrall to notify the then superintendent of the defendant’s mine that he (Kleinhammer) wanted some water, and the answer came back by some of the men to Kleinhammer to this effect: That Heard, the superintendent of the mine, would not turn out the water; that is, if it was demanded. He said “if we just merely wanted water he would turn it down; but, if it was demanded, to demand away till I got tired.” There was no other demand, and the plaintiff never had any other conversation with Heard, but without further ado this suit followed. The plaintiffs and the defendant both claim by prior appropriation of the waters of Little Applegate creek. The defendant argues that there is a variance between the pleadings of the plaintiffs and their testimony, for that, while they allege prior appropriation, they seek to prove
“The law is well established that no right to the use of water can be acquired by prescription, unless there has been such an invasion of the rights of the parties against whom it is asserted as would have given them a cause of action therefor.”
This principle is further elaborated in Ison v. Sturgill, 57 Or. 109 (109 Pac. 579: 110 Pac. 535), and pointed out by analogy in Talbot v. Cook, 57 Or. 535 (112 Pac. 709). See, also, North Powder Milling Company v. Coughanour, 34 Or. 9, 22 (54 Pac. 223).
“Use of water by any one, in a legal sense, is always qualified by the condition that it must be restricted to such quantity and time of employment only as may be
The plaintiffs agree in their testimony that it is not necessary to call upon the defendant to turn down the water at any time prior to July 1st of each year. They produce three crops of alfalfa annually, the irrigation of the first of which is completed before that date, without disturbing the defendant’s use of the water. The irrigation season closes with the month of. September each year.
The testimony of the plaintiffs indicates that they have been somewhat extravagant in the amount of water they used in irrigation. One witness says it gets wet in the county road where the water runs out after passing over the irrigable land, and the hogs wallow there. Another says that water runs across the road when the plaintiffs irrigate, and that they put in boxes, about two feet wide and one foot high, to act as culverts in conducting the water across the road. All the witnesses speaking on that subject agree that in irrigating alfalfa it is desirable to use a good head of water to flood the land quickly, and as soon as possible to take the water off.
T. W. Osgood, a witness for the plaintiffs, a civil engineer of several years experience in irrigation projects, testifies that on May 16, 1909, he measured the water in the two ditches at what the plaintiff Klein-hammer said was the normal flow. The measurement disclosed that in the Upper Phillips ditch there were 502.32 and in the lower ditch 477.68 miners’ inches. He
Bearing in mind, then, that it has not been necessary to call on the defendant for water until July 1st of each year, the decree will be modified, so as to require the defendant, on three days notice, in writing, from the
Modified : Rehearing Denied.