19 Or. 99 | Or. | 1890
delivered the opinion of the court
It appears from the pleadings and evidence in this case that the appellant’s premises consist of the northeast quarter of section 2, the north half of the northwest quarter and the west half of the northeast quarter of section 1, all in T. 15 S., R. 16 B. Willamette meridian; that he has been the owner of the northeast quarter of said section 2 since about the year 1870, and of the north half of the northwest quarter and the west half of the northeast quarter of said section 1 since the twelfth day of September, 1876, at which last-mentioned time he purchased the same from James McDonald, who was the owner thereof from about the year 1870 to the time of the sale to appellant.
The evidence further shows that about the year 1870 a ditch was cut from the north side or right bank of the said creek to a point northerly through a part of the land of said Snederly where it intersected a slough, or old channel,
The said lands require irrigation in order to insure a reasonable crop, and would be of little value for agricultural purposes without it. The said creek furnishes suffl
In view of the condition of the subject matter, and of the manner in which the several parties interested have treated it, I am convinced that there was a tacit agreement among them that each should be entitled to appropriate a just proportion of the water of the creek for the purpose of irrigating his land.
Said parties were doubtless induced to locate where they did in order to secure the benefit of the water of the creek, for the purpose mentioned, and the exercise of a liberal policy in extending the privilege was best calculated to influence the greater number of persons to make permanent settlement there, which is an important consideration in the founding of a frontier community. The parties appear to have cooperated in providing facilities for using the water to render their lands productive, and they no doubt intended to afford to each an equitable share of it. None of them could have reasonably supposed that he was acquiring an exclusive right to a definite and certain quantity of the water, or that he would be permitted to use it to the exclusion of the right of the others in its use for similar purposes. Whether the respondent has appropriated more of the water than a due share thereof does not definitely appear; but he has set up an arbitrary claim to a thousand inches of it, which he insists he has secured by adverse user of a sufficient length of time to establish a ’right by prescription. His claim, however, is not sup
There are, however, some items of testimony in tbe depositions which would indicate that tbe respondent’s right to tbe use of tbe water was merely permissive; but a court of equity in such a matter will give effect to tbe intention of tbe parties as ascertained from their acts regarding it, and tbe circumstances connected therewith, where it is not satisfactorily shown by direct evidence.
' I am fully satisfied in this case that it was tbe intention of tbe parties before named, that as between themselves to enjoy equal rights in tbe use of tbe waters of tbe said creek, and that they acted upon such intention in building tbe said dams and in tbe construction of said ditches, and that tbe same should be carried into effect.
This court held in Coffman v. Robbins, 8 Or. 278, that a parol agreement to divide water which passed through tbe lands of different persons, each of whom prepared ditches for conducting tbe water and took and enjoyed it for a number of years under tbe agreement, would be upheld and enforced in equity, although tbe only consideration for tbe agreement was tbe digging of tbe ditches and taking .care of tbe water. Tbe principle determined in that case is, I think, applicable to this one; and if tbe said parties were all before tbe court, I should be in favor of rendering such a decree as would enforce it, but we cannot bind persons who have not been made parties to tbe suit.
I am of the opinion, therefore, that the circuit court, instead of rendering the decree appealed from should have decreed that the respondent be restrained and enjoined from using any more of the water than an equal share with the other parties named, whenever there was not a sufficient quantity of it in the said stream to fully supply them all. Such a decree can be enforced in the mode pointed out in Olmstead v. Loomis, 9 N. Y. 423, and approved by this court in City of Salem Co. v. Salem F. & M. Co., 12 Or. 387, or by any other suitable and practicable mode which may be adopted.
The contention in Olmstead v. Loomis was in regard to the use of water for hydraulic purposes, but I think the principle is equally applicable to a case like the present one. Under this view, the decree appealed from must be reversed, and a decree entered in accordance with the principle above laid down, and the case remanded to the said circuit court with directions to enter such decree as the decree of that court, and enforce it by such mode of procedure as to the said court may seem most suitable and proper. Neither party will be entitled to costs and disbursements in the suit or upon the appeal, but each is required to pay the costs and disbursements which he has incurred. The costs and disbursements, however, which may be incurred in the enforcement-of the decree-shall be taxed against the respondent in case he refuses to observe its terms.