64 P. 860 | Or. | 1901
delivered the opinion.
The plaintiffs are the owners of certain lands, through which Cottonwood Creek, a perennial stream, flows in one or more of its branches, the water of which is utilized by them for irrigation purposes. Being riparian owners-, they allege that the defendants, who have no riparian rights, are diverting the water from one branch of the stream above them, to their detriment and injury. The defendants assert, however, that they are also riparian owners upon one branch of the same stream, and that they have acquired an appropriation of three hundred inches of water, miners’ measurement, by adverse user, and base their defense to the plaintiffs’ suit on these conditions. Cottonwood Creek flows southeasterly in a single channel until near the line dividing sections 33 and 34, township 39 south, range 19 east, Willamette Meridian, where in the' space of a quarter of a mile it breaks up into four channels, two of which (the most southerly) are small, and for the most part reconduct the water into one of the other two. The two latter, known as the “North Fork” and “South Fork,” are well defined, and have a perpetual flow of water through the lands of the plaintiffs. At certain times of the year, ever since there has been a settlement in the vicinity, — some twenty years or more, — water has escaped from the South Fork through a depression or swale near the east boundary of the northeast quarter of the southeast quarter of section 34, which at some distance below runs in a well-defined channel, known as the “Old Channel,” which passes through a portion of the defendants’ lands, by reason whereof they claim to be riparian owners with respect to Cottonwood Creek. Whatever appropriation the defendants have acquired has been by diversion of the water through a ditch constructed by them intersecting tliis old channel
A brief reference to the testimony will indicate more clearly the contentions of the respective parties, and enable us to discuss and determine understanding^ their relative merits : Creed Pendleton testifies that he has resided on the creek about twenty-three years, and is acquainted with the old channel; that before there was anything done at the head of it the water flowed down sometimes until April, sometimes May, and sometimes June, owing to the freshet; that where it left the creek there was a kind of sag or swale came round from the bend, and started off from it; that there was no regular channel at all from the head of the creek, which continued in that condition from seventy-five to one hundred yards before any banks were perceptible ; that at first it formed into potholes, which extended for a half mile or more, where a regular channel was cut out, extending on down ; that the water did- not run down the swale or the old channel later than until May before there was a change made, unless it was during the time of high water, and then it would run over for a day or two ; that within the last four years there has been a channel cut to the creek, which witness thinks was done by putting in dams and running the water out, thus
A. A. Smith says that generally the water ran down the old channel until about the first of June, during the high water season of the year ; that it seemed that Mr. Bernard was always contending for water, to let it flow naturally, and other parties were stopping it from washing out. J. F. Arthur observed the condition of the old channel since 1884 or 1885, at which time there was no channel where it leaves the creek; that it overflowed in very high water, and ran down into a low swale and formed a channel below ; that the water would run down in the early part of the season, which could not have been later than June, or might have lasted into July, some years; that water does not run down into the channel when Cottonwood Creek is in its normal condition ; that there is now a ditch running out from the creek, fifty or sixty yards long, five or six feet wide, and three or four feet deep, which he first noticed about two years ago ; that .he has seen dams in the stream, but not for the last six or seven years. He says that they seem to have been put in to
J. E. Bernard, one of the defendants’ witnesses, testifies that, excepting a small portion at the head, there
The water does not flow in the old channel upon which the defendants’ lands are located later than June, unless in exceptional years ; its source of supply being from the perennial stream upon which the plaintiffs’ lands are situated, somewhat lower down. Mr. Long, in his work on Irrigation (section 9), commenting upon like conditions, says : ‘ ‘ Every proprietor of lands on the banks of a natu
The consensus of the testimony seems to be that until within late years the water flowed out through the course in the early spring after the breaking up of winter, and thence on, perhaps, until the snow melted in the mountains. The time when it ceased to flow varies, as detailed by the witnesses, from the middle of May to the first of July. There has been a dispute or contention between the parties interested, all along, respecting the outflow. The Bernards have on several occasions constructed dams in the creek for the purpose of diverting its waters, and these have been taken out from time to time by the plaintiffs. Within the last two or three years there have been one or two channels cut through the swale to the creek, and whether these have been produced by natural overflow or through artificial means is not entirely clear ; nor does it matter, as the plaintiffs have the right to maintain the banks in their accustomed condition. The witnesses all concur that one of the channels which now connects with the creek is very much larger and deeper than it used to be ; that the head gate as constructed by the defendants puts the conduit down on the level with the bed of the creek, and is of sufficient capacity to absorb a large percentage of the natxxral sti’eam. Trxxe, the plaintiffs and defendants, or individuals representing each side of the controversy, entered into some sox-t of an agreement whereby the head gate should be put in, but this was not carried into effect; and it is claimed by the plaintiffs that the appliance was not constructed or placed in accordance with the understanding, so that, if any such agreement was entered into, it can have little bearing xxpon the question at issue. The plaintiffs have tom oxxt the head gate, bxxt the defendants insist on maintaining