Coffman v. Robbins, 8 Or. 278

Coffman v. Robbins

8 Or. 278 | Or. | 1880

*282By the Court,

Boise, J.:

There are in this ease no legal propositions which present any difficulty. If the stream of water in controversy was running in a well-defined channel through the lands of the respective parties, they would each have a right to have it continue to flow in its natural course without diminution, except so far as the same might be legally used by each riparian proprietor, while passing through his premises, for domestic use, stock, and reasonable irrigation. But, from the evidence, it appears that this stream, before its flow was disturbed by ditches, spread out on the lands of both parties into a swamp, with no fixed and definite channels, especially when the water was flush. It entered the lands of the appellant by two channels, and the evidence is conflicting and uncertain which carried the most water at the time the first ditch was made, which is marked on the map in the brief as ditch S. We think, however, that the evidence tends to show that prior to the making of this ditch, which was about the year 1861, some of the water flowed about the south-east corner of Coffman’s land, and stood in stagnant sloughs during the dry season. This appears from the direct testimony of some of the early settlers, and from the testimony of the surveyor, F. E. Habersham, who shows from the elevations of the ground that the water could flow about said corner, and he traces old channels or swales leading around that point; and the undisputed fact that this stream spread out and made a swamp, which produced tules or rushes near this locality, shows that the water must have gone there and remained during the season. The testimony, however, tends to show that before ditch S was made, the surplus water flowed on in different channels across the lands of appellant, and most of it passed on to the land of respondent, at or about the point marked “levee” on the map.

But the evidence is very uncertain as to which channel then carried the most water. This ditch S .was cutacross the west channel and dammed it up, so that from that time on for many years the water ceased to flow down the west *283channel, and consequently had a tendency to obliterate all the channels which formerly carried the water about respondent’s south-east corner. It appears that the respondent soon after ditch S was dug extended it to his south-east corner and the water ran there for years. It was afterwards agreed between the respondent and Martin Robbins, who owned the land now owned by appellant, that respondent might divert a part of the water through ditch S to his south-east corner, and Martin Robbins might convey a part of the water to his barn, which was done by ditch E, he (Robbins) joining said ditch with Simmons at his line. This continued for some five years, when the parties quarreled about the water, each claiming a right to use it all; Coffman claiming a right to take it all to his south-east corner, and Robbins claiming the right to have it all flow through his land wherever he chose. It is claimed that if Coffman had been taking a part of the water to his southeast corner, it was by a license which was subject to be revoked by Robbins at any time. It is also claimed that if he had been taking the water by an agreement to divide the water which had been acted on by both parties for a number of years, such agreement is by parol and not binding, being void by the statute of frauds. And also, if it was binding so far as to be upheld by a court of equity, both parties having repudiated it when they quarreled, it became void by their acts.

We think that if the parties divided this water by mutual consent, and then, on pursuance of such agreement, Coffman dug ditches to receive one half of it and dispose of it at his south-east corner, and Robbins did the like on his land, and each took and enjoyed the water for years under this agreement, such a contract should be upheld in equity, for the agreement was a legitimate and proper one, and as the consideration (which was the digging the ditches and taking care of the water) was paid and the possession given, the agreement could be enforced in equity; and if these equitable rights once attached they would not be destroyed by a mere quarrel between the parties, for neither gained or lost a right by this disagreement. Such dis*284agreement is only evidence tending to show that the agreement never existed, or had not been performed. And we think the evidence shows that the agreement was made and that the rights under it still exist, unless Thomas Eobbins bought without notice. The evidence shows that when he purchased the land this water was running as divided in the ditches, and Coffman was in possession, taking his half to his south-east corner, and Eobbins must be presumed to have purchased knowing this fact. We think, therefore, that these parties have each a right to one half of this water, as decreed by the circuit court.

We think, also, that the evidence shows that both parties have been at fault in seeking to evade the agreement by which the water was divided; for it appears that the respondent claimed that he had a right to take all the water to his south-east corner and deprive Eobbins of all the water, and that both parties have been injured by turning the water from the ditches and letting it flow at will. It seems to have been an unfortunate quarrel between neighbors, by which both have suffered. And we think that while the court is called on to settle the rights of the parties to the water, as neither party is without fault and both have been injured, neither should recover damages, and the decree will be modified in this respect; and appellant will be entitled to costs in this court, and respondent in the circuit court.