Carnes v. Dalton

Jun 14, 1910

Reporters:: , ,
Before:: King

Lead Opinion

Mr. Justice King

delivered the opinion of the court.

1. The facts above stated are practically conceded by the pleadings, as well as by defendant’s testimony, only the legal effect thereof being in question. Defendant admits removing the four-foot board from his head gate, when there was no surplus water in the company ditch, occasioning thereby the depletion complained of, and at the same time expressly reсognizes that plaintiffs’ water right through the ditch is prior in time and superior in right to the claim of defendant and his co-owners. The only point, then, with which we are concerned, and as to which there is any difficulty, is whether plaintiffs had a right to elect to take the water through the box at the point mentioned. There can be no question, under the pleadings and admissions of defendant,; as to plaintiffs being еntitled to the quantity, when needed, capable of flowing through the box provided at his point of diversion. The conceded one-eighth interest could not, without pressure, flow through a box one foot square. But if plaintiffs elect to take less than the quantity to which they may be entitled, it is obvious that defendant is not in position to complain. Furthermore this quantity appears to be adequate for. plaintiffs’ purposes.

2. It will be remembered that plaintiffs were not parties to the former suit, and are in no wise bound thereby, and their interests, so far as here involved, must be considered as if such suit had never been instituted. It is *603argued that the suit in hand was properly dismissed, not only for the alleged reason that there was no interference or pretended interference with plaintiffs’ rights, but on account of the injury complained of being the result of wrongful acts by Kelsey. It is true that Kelsey was enjoined by the former decree from either removing boards from, or obstructing the flow through Dalton’s half of the head gate, unless otherwise ordered by the court, provision for which was reserved in the decree. If, then, Kelsey violated this decree and closed the head gate, that is a matter with which Dalton and Kelsey only were concerned, and not these plaintiffs.

3. Defendant and his co-owners, it is conceded, were entitled to use the ditch only for the purpose of conveying surplus waters, from which it follows that if there were no surplus therein, they had no right to remove the board which occasioned the injury to plaintiffs. It was certainly not incumbent upon plaintiffs, whose rights were first аnd superior to defendant, to see that sufficient water was flowing in the canal to supply defendant’s needs, for, their rights being first, it necessarily devolved upon defendant to see that the desired surplus was in the canal, and it became his duty, subject to the qualifications to follow, to provide therefor, before lowering his head gate to let such surplus pass through his premises.

4. Under the agreement with plaintiffs’ predecessors in interest, plaintiffs were, and are tenants in common in the company ditch and dam at its source with Dalton and others, succeeding to the original interests, making each responsible in proportion to his interest therein, for the maintenance and repair of the dam and ditch, and in case of default of one or „ more the other has a right to make such repairs, for which the defaulting party becomes liable for his pro rata; but such failure by plaintiffs, if any, did not justify defendant, under the law, in making up the loss thus occasioned, by draw*604ing off the water from plaintiffs’ division box. See Moss v. Rose, 27 Or. 595 (41 Pac. 666: 50 Am. St. Rep. 748).

5. When, therefore, he removed the board, causing the depletion complained of, without making provision for an additional supply of water in the ditch to make up the deficiency, he necessarily invaded plaintiffs’ rights tо their injury, of which they were entitled to complain. This was as much as an encroachment upon plaintiffs’ rights as if he had tapped plaintiffs’ ditch below the point of diversion. Had the company ditch been partitioned, so that plaintiffs’ so-called “one foot” in width of water would have flowed separately and apart from ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the waters in the adjacent canal, it would certаinly not be urged that Dalton would have the right, in the event of a shortage, to open this partition; this, however, was not the method pursued. The waters claimed by each were allowed to mingle, and were divided at the point above indicated. The division box, therefore, constituted the partition, and it was incumbent upon defendant, in the use of his surplus, so to adjust it as not to interfere with plaintiffs’ use, so long as plaintiffs’ use and manner of diversion were reasonable.

6. The method pursued by plaintiffs appears to have been for the purpose of determining when they were receiving their quota of water, for the court had ruled (although not as against them, but as against defendant and his co-owners) that Kelsey was entitled to the quantity that would flow through the four-foot aperture. Whеn, therefore, it is disclosed that the quantity was of the same depth across the eight-foot box, and within the manner designated by the commissioner appointed by the court, it becomes clear that the one-half awarded Kelsey, and the one foot, or one-eighth, owned by plaintiffs, would not have flowed through this opening, without an additional obstruction being placed in defendant’s aperture at the head gate. It is. accordingly immaterial, *605so far as defendant is concerned, whether such obstruction was placed there for the purpose of increasing the flow on Kelsey’s side of the box, or for the purpose of running the additional quantity through the Carnes box, eight or ten feet above it. In fact the latter method would seem to be the more convenient manner of distributing the water, for when the supply was adequate for the demands of all, it would be left of uniform depth across the entire width of the head gate, and require only such additional flow through the ditch above as would furnish the increased quantity necessary to fill the Carnes box.

The question then arises whether Kelsey was a necessary party. There is no dispute between Kelsey and plaintiffs аs to the quantity to which plaintiffs are entitled. It is conceded by all, including Kelsey, that plaintiffs were entitled to one-eighth of the entire flow, and Kelsey, insisting only that it be diverted to plaintiffs in the manner adopted, in no way attempted to interfere with plaintiffs’ use, but, on the other hand, endeavored to aid him in acquiring the supply required. He might properly have been made a party, but it cannot, undеr the record, be held that he is a necessary party, for, as indicated, a determination of the rights between plaintiff and Kelsey is not essential to the solution of the difficulty between Dalton and the Carnes. Section 41, B. & C. Comp. The only interference that plaintiffs were subjected to was by Dalton, hence it was not required that he make any one else a party defendant by reason of the trespass complained of.

7. It is well settled that one tenant in common in a ditch or water right may institute a suit for unlawful’ interference therein by another tenant (Moss v. Rose, 27 Or. 595: 41 Pac. 666: 50 Am. St. Rep. 743), and, as stated by the court in Gould v. Stafford, 77 Cal. at page 67 (18 Pac. at page 879): “Evidence that persons other than defendant also diverted water from the stream *606was admissible only on the issue as to the amount of damages. If defendant’s diversion of water was wrongful, he could have no defense as against the injunction in the fact that others were guilty of a similar wrong, and evidence offered to prove the latter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fact would be irrelevant and inadmissible. And as plaintiff waived all claim to damages (except nominal), we think that it was error to admit evidence of diversions of water by third parties.” The same case was later before that Supreme Court on appeal. Gould, v. Stafford, 91 Cal. 146 (27 Pac. 543: Gould v. Stafford, 101 Cal. 32 (35 Pac. 429). At the retrials the pleadings were amended and the cause heard under new issues, and while the results differ, the court adheres to the rule first announced on this point. To the same effect, Wiel, Water Rights (2 ed.) § 196; Lakeside Ditch Co. v. Crane, 80 Cal. 181, 186 (22 Pac. 76). See, also, note to Barnard v. Shirley, 41 L. R. A. 758, where authorities considering this principle are collated.

8. It is also argued that since defendant concedes plaintiffs’ prior right, and manifests no intention of continuing the interruption, the suit сannot be maintained. But it is clearly established that he did insist upon the right to deplete the flow in the manner complained of, and in his answer prays that his rights therein be adjudicated, under which circumstances it is fully settled that a suit is maintainable. Section 394, B. & C. Comp.; Jones v. Conn, 39 Or. 30, 47 (64 Pac. 855: 65 Pac. 1068: 87 Am. St. Rep. 634: 54 L. R. A. 630); Hough v. Porter, 51 Or. 318, 372 (95 Pac. 732: 98 Pac. 1083: 102 Pac. 728); Whited v. Cavin, 55 Or. 98 (105 Pac. 396, 401). The same point was urged in the “briefs, and at the oral argument, but not deemed important in Seaward v. Pacific Live Stock Co., 49 Or. 157 (88 Pac. 963), and Williams v. Altnow, 51 Or. 275 (95 Pac. 200: 97 Pac. 539).

It follows that the decree dismissing the suit must be reversed, and one еntered enjoining defendant from *607interfering with the flow of one-eighth the carrying capacity of the company ditch to and through the aperture provided by plaintiffs for that purpose. And it appearing important that the rights of the parties hereto should be adjudicated, in the benefits of which each must share, and that defendant was probably acting within what he believed to be his rights, the сosts allowed defendant in the circuit court will not be disturbed; plaintiffs to have their costs on appeal. Reversed.

Mr. Justice Eakin, having at circuit court tried the former ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍suit involving this ditch, took no part in this decision.

Rehearing

Decided July 12, 1910.

On Petition for Rehearing.

[HO Pac. 174.]

Mr. Justice King

delivered the opinion of the court.

9. In the petition for rehearing our attention is called to McPhee v. Kelsey, 44 Or. 194 (74 Pac. 401: 75 Pac. 713), where the ditch here involved was in controversy, the petition averring it was there held that L. S. Kelsey and the successor of the elder Wilson “were the owners, or had the superior right tо the amount of water which would fill the present ditch to one-half its capacity; that this respondent and his associates were entitled to the use of the other half when there was sufficient water to fill the ditch, and the decree of the circuit court which is in evidence in this cause is to the same effect;” and that it has been decreed and conceded in all former litigation that Kelsey and Wilson (plaintiffs’ predecessors in interest) were entitled jointly to one-half of the ditch; and that it has never been held th‘at Kelsey alone was entitled to one-half interest. For these alleged reasons it is argued we are in error in holding, in effect, that plaintiffs’ one-eighth interest, when taken together with Kelsey’s decreed rights, results in a right in defendant *608and others interested with him to but three-еighths of the quantity capable of flowing through the company ditch. If in this counsel were correct, there could be no question as to the soundness of their position, but, as stated in our former opinion, the final decree in McPhee v. Kelsey, reported in 44 Or. 194 (74 Pac. 401: 75 Pac. 713), was vacated and a new hearing ordered (45 Or. 290: 78 Pac. 224), after which further testimony was taken, and in the decree entered thereunder the following language appears: “That L. S. Kelsey is entitled to the prior and exclusive right to the full amount of the water in said ditch to the extent of said four-foot ditch in width; that plaintiffs James Dalton and P. L. Smith (being the successors in interest jointly with George Neil of the rights of said McPhee, Smith, Tanner, and York in the said enlargement of said ditch) are entitled to the amount of water carried by such enlargement, subject to Kelsey’s rights, above defined.” It is also conceded that four feet in width, as herе used, means a one-half interest, and in all the former litigation respecting this ditch it is so treated.

When viewed in connection with the contention and proof in the above case we fail to see any ambiguity in the language quoted from the decree. It decrees as clearly as is possible to do so that, as between Kelsey, on the one hand, and Dalton and Smith, on the other, Kelsey alone is the prior owner, and entitled as a first right to a quantity of water equal to one-half of the carrying capacity of the company ditch, and the part of the decree following the above excerpt enjoins Dalton and his then co-owner, Smith, from any interference therewith. This decree was offered in evidence by the plaintiff, and for obvious reasons must bе considered in determining the rights of the parties hereto, but plaintiffs cannot in any way be held bound thereby, for neither they nor any of their predecessors in interest were par*609ties to that suit. This rule, although elementary, appears to have been overlooked by the petitioners.

The pleadings in this case concede, and the proofs fully establish, that the plaintiffs, Samuel and W. A. Cаrnes, have the first right to a quantity of water equal to one-eighth of the carrying capacity of the ditch involved; from which it necessarily follows, when taken in connection with the adjudication in the McPhee-Kelsey suit, that defendant Dalton cannot interfere with plaintiffs’ first right to the use of a quantity of water diverted through the plaintiffs’ division box, not exceeding a quantity equal to one-eighth of the suрply capable of being diverted through the company ditch. As the former decree gives to Kelsey as against Dalton and his associates in the former suit four-eighths of the carrying capacity of the ditch, it must follow that when Kelsey and these plaintiffs are each using their respective water rights to the full extent allowed, there must be less than four-eighths left for the other owners. This would leаve the condition such that when plaintiffs are using no water, then as between Dalton et al.,’ on the one hand, and Kelsey on the other, each could, when the water is needed, use one-half thereof. That is to say the former decree, as between ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Kelsey and Dalton, is still effective. Kelsey, being first entitled to a “four-foot” supply, after which, when not needed by the Carnes’, Dalton et al. may receive, when available, a like quantity, but when required by the Carnes’, Dalton’s supply must be reduced in proportion to the carrying capacity of the Carnes’ foot-square division box, whether one-eighth or less.

In connection with the foregoing, reference is made to our statement in the narrative of facts, to the effect that Kelsey and Wilson were recognized as having one-hаlf interest, and the defendant and his co-owners one-half. This statement, however, had reference only to the original understanding between the parties, and not *610to the decree as finally entered. It is too obvious to admit of discussion that not what we may now discover as the original understanding between the litigants, but the decree, as. finally entered in the former suit, is binding upon this court.

In the petitiоn much discussion is entered into as to the alleged injustice in holding to the effect that defendant cannot divert water from the river into the company ditch or in any way interfere with or use the division head gate; that the division gate mush forever remain closed for the benefit of Kelsey and these plaintiffs, and defendant must accordingly lose his entire water rights, etc., etc. But there is nothing in the opinion from which such conclusions may be deduced. We merely held in substance, and so stated, that defendant should be enjoined from interfering with plaintiffs’ prior right to the use of the quantity of water capable of being run through the Carnes box one foot square, placed at their point of diversion a few feet above the Dalton-Kelsey division box; such quantity not to exceed one-eighth of the carrying capacity of the company ditch. If then there is at any time only sufficient in the ditch to supply the quantity awarded plaintiffs, then as between the plaintiffs and defendant the plaintiffs are entitled to close defendant’s side of the division-box in such manner as may prove essential to the diversion of such quantity through the Carnes division box. Again, when there is only sufficient to furnish Kelsey his four-eighths, and the Carnes the quantity awarded them, the Dalton side of the division box may, for that purpose, be closed entirely. But when all water capable of flowing through the company ditch, in excess of that required by either or both of the parties last named, is in the company ditch, the excess must be permitted to flow to defendant’s premises, and the boards in the head gate may be removed or arranged in such manner, whether by defendant, his *611employees, or others authorized so to do, as to permit such surplus to flow through the head gate.

We do not wish to be understood as adjudicating in this suit any controversy between Kelsey and this defendant, for example, as to what lands and where Kelsey may irrigate, etc. We intend only to recognize their relative rights as expressed in the dеcree in evidence between them, and the rights thereunder are here considered merely in connection with, and only in so far as may be essential to a full understanding and determination of the controversy in hand. Nor can we at this time determine the relative rights of the plaintiffs between themselves, or as between plaintiffs and Dalton’s co-owners, or as against Kelsey, the reasоns for which are obvious. Indeed it is unfortunate that all were not made parties either to the former suit, or to the one before us, where issues could, and should, have been framed with the view to a determination (during the lifetime of the witnesses) of the relative rights of all concerned, but in the absence of such presentation we are powerless to afford a complete remedy . for the many complexities possible to arise between all those interested.

It is argued that it is unnecessary, in order to furnish plaintiffs the water awarded them, to obstruct the flow through defendant’s division box. When the company ditch is used to its full carrying capacity this position is tenable, but to concede this contention, when the supply is inadequate for all, would be to question the law оf gravitation, for the findings in the former suit recite that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“the bottom of the Dalton box is 4 feet 4 inches wide, and has a rapid fall for a distance of 10 feet above the box and the same through the box”; hence when there is only sufficient in the ditch to supply plaintiffs, or to supply plaintiffs and Kelsey, as the case may be, and defendant’s head gate is left open, it must necessarily follow that a part of the water would flow through Dal*612ton’s head gate, depleting plaintiff’s supply proportionately. The contention on this point overlooks the adjudicated as well as conceded fact that plaintiffs and Kelsey are prior appropriators, and their actual needs, to the extent of four-eighths formerly decreed Kelsey, and that here awarded plaintiffs, must first be supplied before any water may flow to defendant, and whatever may then be left to defendant, whether much or little, becomes immaterial. It may prove more practicable to run the quantity going to Kelsey and these plaintiffs, as tenants in common, through Kelsey’s side of the box, but if so it will necessitate a rearrangement of the company division head gate. This, if found necessary, may be directed by the trial court as before, through the aid of commissioners, appointed for the purpose.

We appreciate the suggested difficulty possible to arise in carrying out and making effective the decree when entered, if all the parties involved and interested do not comply with the former decree, as well as the one here entered, but with that we have nothing to do. It is our function to interpret and not. to administer the law. In this connection, however, it may not be improper to note that, as supplementary to the usual method of dealing with those who may refuse to comply with a decree in this class of cases, an adequate administrative system appears to have been provided in the act of 1909. See Laws 1909, p. 319.

The petition for rehearing is denied.

Reversed: Rehearing Denied.