119 P. 331 | Or. | 1911
delivered the opinion of the court.
The testimony shows that plaintiffs’ predecessors in title, J. H. Koontz, in 1883 built a dam across the Umatilla Eiver near the southeast corner of the S. W. % of section 22, in township 3 N., of range 29 E., in Umatilla County, and dug a ditch part of the way and constructed a flume the remainder of the distance of about two miles northwesterly, on the east side of the river, to Echo, where, in 1885, he built a flourmill, the motive power of which was furnished by water flowing in the ditch and flume. The mill was destroyed by fire in 1889, but was rebuilt the next year. The United States reclamation service occupied for a short period the line of the mill race, but at all other times since the mill was originally built
The title to the land owned by Cuhna and his alleged right to appropriate water for irrigation from the river at places above the plaintiffs’ dam were derived ■ as follows: John Dickey was the owner of 160 acres of land lying on the west side of the stream and above the line where the dam now diverting water into the mill race was subsequently placed, and in 1879 he commenced near the southeast corner of his land to dig a ditch from a slough, following the foot of a rock bluff, northwesterly across his premises, in which undertaking he was assisted by James Taylor, who extended the ditch to and upon his lands, four 40-acre tracts of which lie west and two 40-acre pieces are situate north of the line of the Dickey lands, and water was thereby diverted and used for irrigation. Dickey conveyed his premises to Taylor, who in 1887 dug a new ditch, commencing below the old ditch, but above the dam now owned by plaintiffs, and extended the conduit across his lands, using the water flowing therein for ' irrigation, and thereafter abandoned the old ditch. Taylor died, and his widow, having remarried, conveyed the Taylor and Dickey lands to Cuhna, who continued to use water through the new ditch for irrigating such premises.
Koontz secured from persons who owned lands bordering on or through which the Umatilla River flows, quitclaim deeds conveying the right to divert from the natural channel of that stream, between the places of intake and the termination of the mill race, such quan
It is maintained by plaintiffs’ counsel that the old ditch referred to was dug by Taylor and Dickey to drain their lands, and that no water flowing in that conduit had ever been used for irrigation. The fact thus asserted to have been established is deduced from testimony which shows that levees were built by Dickey and Taylor to keep the freshets caused by melting snow from overflowing their lands. Two sons of John Dickey testified that in 1871 their father and Taylor built levees along the slough to protect the lands from overflow, but that in 1879 the old ditch was dug through such embankment.
“You may take up this Cuhna land section by section in your own way, and tell the court how much alfalfa land, orchard land, grain land, irrigated and nonirri*77 gated land, you found in making your' survey of the same.”
He replied:
“The S. E. % of the S. E. 1/4 of section 21; I will say all of this land of Joseph Cuhna’s is in township 3 N., range 29 E. of the Willamette meridian. In section 21 there are 10.46 acres grain. There is no alfalfa and no orchards. In the S. W. % of the S. W. 1/4 of section 22 there is .54 acres of alfalfa, no orchard, and 55.5 acres of grain; that being all the land in 22. In the N. E. 1/4 of the N. E. 14 of section 28, there is 2.70 acres of alfalfa, no orchard, and 9.36 acres of grain; this being all the land in section 28 that is irrigated by the Joseph Cuhna ditch and land in cultivation- In section 27, the N. W. % of the N. W. 1/4, there is 32.96 acres, and there is 2.12 acres of orchard, and .9 acres of grain, and 1.29 acres being leveled. In the S. W. *4 of the N. W. % of section 27 there is 2.6 acres of alfalfa, no orchard, no grain. In the N. E. 1/4 of the N. W. 14 of section 27 there is 1.20 acres of alfalfa, 2.20 acres of orchard, and 9.91 acres being leveled at this time. In the S. E. 14 of the N. W. 1/4 of section 27 there is 15.47 acres in alfalfa, no orchard, or no grain. In the S. W. 14 of the N. E. 1/4 of section 27 there is 7.2 acres of alfalfa, no orchard, or no grain; this being all the land that is under the Joseph Cuhna ditches, or. that is in cultivation.”
It will be observed that Canfield’s testimony as taken and reported by the stenographer makes him say, respecting the irrigable land in the S. W. 1,4 of the S. W. 1/4 of section 22: “There is .54 acres of alfalfa, no orchard, and 55.5 acres of grain.” As the area thus noted would make a 40-acre tract contain 56.04 acres, it is very evident the stenographer made a mistake ,in the decimal point. The sum of the areas of the irrigable land on the various tracts as noted is 154.23 acres. In awarding to defendant 150 inches of water, it is believed the trial court took the area thus computed as the basis of the quantity reasonably required for irri
Predicated upon the award made by the court as applicable to 154.23 acres, the actual area would be entitled to 101.41 inches, and we believe 100 inches is sufficient properly to irrigate the defendant’s land.
The determination of the lower court will therefore be modified, and 100 inches of water will be given as the measure of the defendant’s right; but in all other respects the decree is affirmed. Modified.