114 P. 464 | Or. | 1911
delivered the opinion of the court.
The decree offered in evidence adjudicates finally these matters: (1) That Kelsey had a prior right to the water occupying four feet in width of the enlarged ditch; (2) that plaintiff in this case and his associates were entitled to any additional water that the ditch would carry after Kelsey’s appropriation was exhausted; (3) that Kelsey could divert at the Dalton Box or at any other place the quota of water belonging to him if that amount came down from Powder River; (4) if, in the use of his portion of the water, the bottom of the ditch at the Dalton Box was raised necessarily so high that no water went down to Dalton, Kelsey was not liable; (5) that Kelsey should not interrupt the flow of water from Hutchinson Slough, through the Dalton Box, except when such flow was equal to the capacity of the ditch. From this we take it that, if there should happen to be a scarcity of water from Powder River, Kelsey could not make up the deficiency by diverting the Hutchinson Slough water belonging to Dalton. The pleadings in the former case are not in evidence, but we assume from the opinions found in 44 Or. 193 (74 Pac. 401: 75
“I instruct you that the prior appropriator of the waters of the stream for irrigating purposes has the right to use the same to the extent of his necessities for such purposes without let or hindrance from other users
We think this instruction properly states the law, and that it is not in conflict with the decree of 1906. That decree, it is true, adjudicates that Kelsey is entitled, as a prior appropriator, to the use of four feet of water, but this must be subject to the qualification that such use must be necessary at the time. At some seasons of the year one-fourth of that amount might be all that would be required, and at other seasons the whole might not be sufficient. Now to allow defendant to divert four feet of water upon his own land, when one foot would be amply sufficient, would be clearly unjust and contrary to that sound policy of the law, which does not recognize actual ownership in running water, but merely the right to beneficial use of it.
The second instruction objected to we think correctly states the law, and does not infringe upon the rights of defendant as defined by the decree. The courts in all previous litigation between parties, as in this case, have recognized the difficulty of laying down any fixed rule
“I also instruct you that the findings of fact found by this court in that suit wherein this plaintiff and others were plaintiffs, and Mr. Kelsey was defendant, must control you, wherein such findings are definite and certain in their terms or their import is plain. Where this court in that suit found certainly upon any point that has arisen in this action, its finding must control yours and. you must abide by such finding, which, I instruct you, is final and conclusive alike upon the parties hereto, this jury, and this court, and they must be so treated by you under your oath as jurors.”
This instruction is erroneous, in that it leaves to the jury the construction of the findings of the circuit court. It was the duty of the court to construe these findings and explain to the jury their force, efficacy, and application to the matters at bar.
“One of the provisions of plaintiff’s ‘Exhibit B,’ which is the instrument executed by L. S. Kelsey, C. A. Dougherty, James Dalton, and others, on the 10th day of October, 1900, reads as folows: ‘* * and the said L. S. Kelsey shall have the right at any time and all times to pass his own water from other ditches through said ditch, and at any time use his own water therefrom.’ I instruct you that the said stipulation is mutual; that is to say, all
This instruction is misleading, in that it seems to leave out of view defendant’s prior right to use four feet of the water flowing through the Kelsey-Wilson Ditch. It is true that such right is expressly recognized in other instructions, but there is such an ambiguity here as was calculated to confuse the jury.
“As to the Dalton Box, I instruct you that the plaintiff has no right to disturb it or lower the bed of the ditch at that point or above there or to fill in the ditch at the Hutchinson Slough, with more water than can be carried past the Dalton Box. Nor did Mr. Kelsey have any right to dam up that box and prevent any water from flowing through the same if there were other reasonable means available to him whereby he might use his water, if by so damming he would needlessly prevent plaintiff from getting his share of the water. If by opening the bottom of the dam in that box, whereby the water could run through to plaintiff and by turning in enough water additional at the head of the ditch in North Powder River he could have procured a sufficient volume of water to have satisfied his needs and thus have avoided any injury to plaintiff, if plaintiff was injured, it was Mr. Kelsey’s duty to have done so and to have allowed water
We think this instruction is correct. It is plausibly contended that a different rule is lain down in the case of Carnes v. Dalton, 56 Or. 596 (110 Pac. 170); but we do not so view that case. In that case it appears that by reason of the dam in Powder River being out of repair it was impossible for Carnes to get the quantity of water he was- entitled to by reason of a prior appropriation without repairing or raising the dam. Dalton, who was defendant in that case, claimed the right to use the full amount of his subsequent appropriation, leaving the prior appropriator to rebuild or repair the dam in order to get the share to which he was entitled. The court properly held that Carnes was not required to do this, but, if there was sufficient water flowing at the head of the ditch to supply Carnes, that he was entitled to take it, leaving to the subsequent appropriator the duty of raising the dam, so as to turn more water into the ditch. What is said by the court in reference to the right of Carnes and Kelsey to use the water then flowing in the ditch must be construed as applying to the conditions there found to exist. In the case at bar conditions are different. There is evidence tending to show that there was an abundant supply of water at the head of the ditch for all parties, and if, by simply lifting the headgate, Kelsey could secure his supply, without using that already turned in by plaintiff, he should have done so. Then, if the ditch would not carry enough to give him his four feet of water and also supply Dalton, he should have the right to be first served, or, if what Dalton had previously turned in was all that the ditch would contain, Kelsey would have the right to use the whole of it. We do not understand the instruction to assert any different doctrine.