Gardner v. Wright, 91 P. 286

Opinion by

Mr. Commissioner King.

It is unnecessary to determine whether the court erred in sustaining plaintiffs’ motion to strike out defendant’s averment concerning riparian ownership, since the evidence as taken does, not indicate an intention to rely upon this defense. Plaintiffs, through their predecessors in interest, claim the entire flow of Washington Creek by prior appropriation, which is asserted through the Estes and Dill deed given to Gordon and Manville*622in 18G4, wherein the appropriation is expressed as having been first made by these grantors in June, 1862. The defendant, as indicated by the evidence adduced in his behalf, relies on<adverse possession through his grantor, Estes, for more than the statutory period, having its inception in‘an appropriation made in‘the spring of 1863, which is alleged to be prior in time and superior in right to any valid claim of plaintiffs.

It is urged by-defendant, and testified to by Estes, that there was no intention of conveying any water rights by the deed referred to, except a right to the surplus water flowing below defendant’s lands; but the covenants in the deed, when construed in connection with the water notice of Dill, then on record, convey and warrant .the title to the entire stream, to the extent that it may be applied to a beneficial use on the land to which right of possession was therein conveyed, whether such use should be for irrigation or for other purposes. The showing-made to that effect in support of the. allegations .of the complaint, in- the absence of other evidence, establishes, as against defendant, a prima facie, right .to the,use of the water in.plaintiffs to the extent -that thejr may have succeeded to the interests named in the Estes, and Dill deed. To overcome this proof defendant insists that die has established his right to the,use of the stream (except as to the. surplus water) by adverse posr session for more than 40 years.

1. Plaintiffs maintain that defendant, through his grantor, is estopped by the covenants in the deed from asserting, this defense. It appears well settled that a subsequent possession by a grantor of premises‘conveyed, under claim of ■ ownership, etc., for the period prescribed by the statute of limitations, will not necessarily inure to the benefit of his grantee, and title- by adverse possession for such period. may be acquired by such grantor: 16 Cyc. 697; Jones v. Miller (C. C.) 3 Fed. 384; Stearns v. Hendersass, 9 Cush. 497. (57 Am. Dec. 65); Hines v. Robinson, 57 Me. 324 (99 Am. Dec. 772.); Sherman v. Kane, 86 N Y. 57; Horbach v. Boyd, 64 Neb. 129 (89 N. W. 644). In the case last cited, the Supreme Court of Nebraska on this point say: “It must be evident that, if the grantor subsequently *623makes an entry upon the possession of the grantee, there is no presumption that the new possession so acquired is permissive or subordinate to the grantee. This would be more obvious where several years intervene between the grant and the entry. Whatever the rule may be where the possession of the grantor continues after the conveyance, in such a case the new title may be established by proof’ of open and notorious adverse possession, as in other .cases.” It must be conceded, however, that, notwithstanding the rule stated, if such possession is held in subserviency to the title of the grantee, the possession thereof would inure to the grantee’s benefit.

2. The circuit court held, in effect, that, when Estes reacquired the water rights above the Swift farm, any interest so obtained inured to the successors in interest- o-f Manville by reason of .the covenants in the deed given to Manville and- Gordon in 1864, and that defendant, through Estes, his grantor, is estopped from asserting his claim to the subsequently acquired water rights to the extent that plaintiffs have succeeded to the interest of Gordon and Manville; but held that, since Gordon made only an oral transfer to Manville of his interest in the possessory title to the property acquired under the Estes deed, upon which water had not been diverted at the time of the conveyance, nor prior to the diversion by Estes, the estoppel could not be invoked as to Gordon’s half interest, in. the property described in the deed. The court-accordingly held that defendant, as successor in interest to Estes, was estopped to the extent of only- one-half of the water right previously conveyed, and found in favor of plaintiffs for one-half of the rights claimed and demanded by each of them. Since no diversion was made prior to the time of the parol conveyances by Gordon, nor until after the diversion and use subsequently made by Estes, it is clear that the court did not err in this holding in respect to Gordon’s interest, although a different rule applies where actual appropriation-has been made: Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472: 60 Am. St. Rep. 777).

3. We are then confronted with - the question: Was Estes estopped to assert title adversely as to the remaining interest *624claimed by the successors in interest of Manville? The general rule is recognized to be that, when a person assumes to convey property by deed, he will not be heard, fox the purpose of defeating the title of the grantee, to say. that, at the time of the conveyance, he had no title, and that none passed by the deed. Nor can he deny to the deed its full operation and effect as a conveyance, and such deed conveys all after-acquired titles: 16 Cyc. 686, 689, 701; Taggart v. Risley, 4 Or. 235; Wilson v. McEwan, 7 Or. 87; Raymond v. Flavel, 27 Or. 219 (40 Pac. 158). From the foregoing authorities it is clear, under the prima facie showing made by plaintiffs by the deed and Dill notice of location of water right, that defendant, by reason of receiving his title through Estes, would be estopped from asserting that, at the time of the execution of the deed from Gordon and Manville, the grantors had no authority to convey more than the surplus waters of the stream; that, notwithstanding they had previously sold an interest therein to Abner Smith, they were estopped in equity from setting up such sale as against any claims of the grantees, or their assigns. This would preclude defendant, as grantee of’ Estes, in the absence of other testimony, from asserting any title to the water through any rights that may have been received, if any, through the marriage of Estes to Mrs. Smith.

4. As to whether Estes or his grantee are estopped by the covenants in the deed from claiming title by adverse possession against Manville’s grantees, however, another and different question arises. There can be no doubt, under the law, that it is incumbent upon a person relying upon a claim of adverse possession, as against a grantee in a warranty deed, to clearly show that there was a change in the relation of the parties with reference to the rights involved before such right can be maintained. Any unexplained possession, therefore, is presumed to be in subserviency to the title placed on record by the deed, from which it follows that the grantor, in order to avail himself of1 the lacheB of the grantee or assigns, or of the limitations prescribed by law, must show that he brought home to the grantee and his assigns knowledge, either actual or constructive, of such change in the *625relations of the parties: Jones v. Miller (C. C.) 3 Fed. 384; Sellers v. Crossan, 52 Kan. 570 (35 Pac. 205); Schwallback v. Chicago, M. & St. P. Ry. Co. 69 Wis. 292 (34 N W. 128: 2 Am. St. Kop. 740).

5. It is incumbent, therefore, upon defendant to show to the satisfaction of the court that his possession was not in subserviency to the grantee. The authorities are practically unanimous in support of this view, which appears to be “the strong contention of plaintiffs’ counsel. We will then examine into the status of the case before us on this point. An examination of the testimony discloses no question as to the character of the holding, not only as to the possession of the defendant, but of his predecessor in interest, Estes. We find that Estes ánd Dill conveyed all the’ water, so far as the language of the deed is concerned, to plaintiffs’ predecessors in interest, and that possession was surrendered to them under the deed, although, prior to such conveyance, they had sold the land above with a water right in the stream to Smith. Three years after the execution of the deed to Gordon and Manville, at a point on the same stream above their lands and for the irrigation of the farm previously sold to Smith, upon which Estes afterwards filed as a homestead. Estes began to assert a separate and distinct right and to use the water for the irrigation of his homestead. Five years later, presumably for the purpose of further protecting and maintaining his claim to the water, he, at the diversion points, posted and recorded the notices mentioned. When considered under the issues, as pleaded, together with the fact that the Estes farm was being irrigated by the use of the ditches mentioned, that a large orchard had been planted, which, with crops of hay and grain, were necessarily being sustained by the use of the water of this stream, all which notices, with the other‘facts and circumstances stated, were sufficient to establish a disclaimer, under the covenants given, and bring home to the knowledge of the grantee full notice of the change in their relations: Petrain v. Kiernan, 23 Or. 455 (32 Pac. 158); Horbach v. Boyd, 64 Neb. 129 (89 N. W. 644). The testimony showing the open use of *626the water under the notices posted, growing crops, and general knowledge thereof in the vicinity, while not sufficient to establish ownership, was clearly competent as evidence for the purpose of establishing claim of ownership as well as to indicate open and adverse possession under this defense: Petrain v. Kiernan, 23 Or. 455 (32 Pac. 158); Rowland v. Williams, 23 Or. 515 (32 Pac. 402); Boyce v. Cupper, 37 Or. 256 (61 Pac. 642); Eastern Oregon Land Co. v. Cole (Or.) 92 Fed. 949 (35 C. C. A. 100); Land Grant Co. v. Dawson, 151 U. S. 586 (14 Sup. Ct. 458: 38 Fitzgerald v. Brewster, 31 Neb. 51 (47 N. W. 475) : Maxwell L. Ed. 279).

6. When it appears that there* was an intention on the part of Estes to claim and hold possession of the use of the stream for -x beneficial purpose, in defiance* of any rights claimed by his grantees and their assigns, the statute commenced to run, if such intention was accompanied by acts of diversion sufficient to indicate a purpose to carry such determination into effect. We have evidence of such motive and purpos.e in the notices posted and recorded, together with the use of the water both prior and subsequently made. From that time (April 15, 1872) the character of his possession cannot be doubted, and from which date, if not before, the statute of limitations began to take effect.

7. If it appears that plaintiffs and their-predecessors in interest permitted 10 years to elapse without regaining control, during which Estes was using the water, when needed, for irrigation and domestic use, then such delay vested a complete title thereto in Estes, and constituted an absolute bar to the maintenance of this suit, unless it is shown that such use was permissive, or that it was of such character as not to constitute an invasion of the rights of the lower proprietors, against whom he was claiming and asserting’such right. From the time, therefore, that Estes openly manifested his intention by the notices and use of the water, as stated, whatever may have been the character of his possession before, his possession became adverse, and in no way could it’ then be found that he was holding in subserviency to the deed previously given. Being in actual possession and making constant use, when needed, of the necessary *627amount, it required only an adverse claim, however wrongful it may have been, and however well he may have known that his rights were unfounded, to render the possession adverse, and as to whether such possession and use were either knowingly wrongful or without right is unnecessary to determine.

8. It is the office of the statute of limitations, as enacted by our legislatures, as well as recognized by the courts from earliest history on the subject, to prevent and avoid the uncertainty in titles and propertj” rights which would necessarily exist if persons were permitted to wait until after a generation had passed away, taking with it the most capable witnesses, before questioning another’s rights. It is therefore settled that title by “adverse qiossession may be acquired regardless of the good faith of the claimant, if accompanied by even a pretense, commonly known as a claim of title. The principles here invoked on these points have long been recognized in this state: Parker v. Metzger, 12 Or. 407 (7 Pac. 518); Joy v. Stump,14 Or. 361 (12 Pac. 929); Coventon v. Seufert, 23 Or. 548 (32 Pac. 508); Oregon Const. Co. v. Allen Ditch Co. 41 Or. 209 (69 Pac. 455: 93 Am. St. Rep. 701).

9. On this point, however, it will be observed that, while prior to the posting of the notices, Estes may not have had what is termed a color of title, yet he claimed under what was, to say the least, its equivalent, and held under circumstances furnishing strong evidence of good faith. He had married the occupant of the ünsurveyed farm, and to preserve their holdings, when the public lands occupied by himself’ and family were surveyed, filed on the land as a homestead, receiving the government’s receipt therefor. He testifies that it was not his intention, by the deed given plaintiffs’ predecessors, to convey more than the surplus water, which testimony is admissible for the purpose of showing his intention when he made the diversion under his notices; and, evidently believing it was only the surplus to which his grantees were entitled, and becoming a riparian proprietor on the stream by virtue of it being his homestead,, he presumably considered his claim to be under a valid and existing right. While such claim was not conclusive against his grantees, these circum*628stances axe entitled to great weight in determining the status of his claim at its inception, as to whether his possession was in subserviency of or adverse to others on the stream.

10. The adverse possession urged and established as a defense may be defeated by showing that such use was interrupted within the statutory period, or, in other words, that the use during the irrigation seasons for the statutory time, under the conditions named, was not continuous, or by proof that such use did not substantially interfere with plaintiffs’ rights: Britt v. Reed, 42 Or. 76 (70 Pac. 1029).

11. While an adverse right cannot grow out of mere permissive enjoyment, the burden of proving possession thus claimed to have been held by such permission or subserviency is cast upon the party attempting to defeat such claim: Coventon v. Seufert, 23 Or. 548 (32 Pac. 508); Rowland v. Williams, 23 Or. 515 (32 Pac. 402); Bauers v. Bull, 46 Or, 60 (78 Pac. 757); Horbach v. Boyd, 64 Neb. 129 (89 N. W. 644). The same rule would necessarily apply to any other assertion made for the purpose of defeating the running of the statute, and it accordingly follows, after the showing made by defendant, that, in order to defeat his claim of adverse possession, the onus was upon plaintiffs to establish that the use by Estes was not continuous for the statutory period, as well as to establish, if reliance is had thereon, that the use by defendant and his grantor was not such as to constitute a substantial interference with their rights.

12. So far as appears in the record, the plaintiffs and their predecessors in interest at all times, since, the open manifestation by Estes of his claim in 1872 to the waters of Washington Creek, actually needed all the water of this stream for domestic and irrigation purposes. Its use, therefore, by defendant and his grantor under such conditions constituted an invasion of the rights claimed by plaintiffs and their predecessors. It being incumbent upon the plaintiffs to show that the use of the water on the Estes farm did not substantially interfere with their wants, nor constitute an invasion of their rights, and there being no evidence in the record to that effect, but, on the contrary, it appearing that the use of the water was necessary, and that they *629were deprived of its benefit by the Estes place for more than the 10-year period, the claim of adverse possession is clearly established, unless shown that the interruptions by plaintiffs’ predecessors were sufficient to prevent the running of the statute in defendant’s favor.

13. On this point it will be observed that no claim of interruption is asserted, nor attempted to be established, prior to the year 1884. No principle of law is better established than that, when title is once acquired by adverse possession for the statutory period, such title remains in the person so acquiring it as completely as if conveyed to him by deed from the owner: Joy v. Stump, 14 Or. 361 (12 Pac. 929). Therefore, after the title by such possession became complete, no interruptions were of ahy avail to plaintiffs, unless actual, open, exclusive; continuous and adverse, under claim of ownership for the statutory period: B. & C. Comp. § 4; Pearson v. Dryden, 28 Or. 350 (43 Pac. 166); Oregon Const. Co. v. Allen Ditch, Co. 41 Or. 209 (69 Pac. 455: 93 Am. St. Rep. 701); Sherman v. Kane, 86 N. Y. 57. In this case, then, it is conclusively shown that Estes, under his adverse claim, had the continuous and uninterrupted use of the waters from 1872 to .1884, without interference by any one, and his claim and open assertion of right being established as commencing not later than 1872, ■ it ripened into a complete title prior to 1884; of which he has not been divested.

14. It is urged, however, that his title had not then become fully vested, and that the temporary interruptions of his use of the water, after 1884, were sufficient to stop the running of the statute, that is, that the use did not continue, without interruptions, for any 10-year period. On that point it will be .observed that none of the uses testified to by plaintiffs are shown to have been permanent, and none are claimed to have taken place at any time, except during June and July. It is the law that one person may establish a right to the use of water during one part of a year, while another ma3r, at the same time, secure a perfect right to the use of the waters of the same stream for the remainder of the season: Long, Irrigation, § 61; McCall v. Porter, 42 Or. 49 (70 Pac. 820, 71 Pac. 976). It follows, then, *630that, under the most favorable application of the testimony possible for plaintiffs, they have lost the rights which they or their predecessors may have had to the waters of Washington Creek by adverse possession of defendant and his grantor, unless it be during June and July of each year.

15. The question then arises: Were the interruptions of Estes’ use of the waters, in the manner testified to by some of plaintiffs’ witnesses, sufficient to prevent the running of the statute in his favor during those months P From the record it appears that much of the testimony relative to interference with his use was by parties farming the Bea place adjoining plaintiffs’ lands, and whatever water may have been procured by them was used on that place. But since the right to the use of the water by the owners of the Bea farm is not involved in this suit, plaintiffs cannot avail themselves of any interference on the part of persons occupying those premises. The result of this proceeding must be determined with reference only to the parties involved here: McCall v. Porter, 42 Or. 49 (70 Pac. 820, 71 Pac. 976). As to the parties herein, the testimony of nearly all the witnesses indicates the water to have been taken by them from the Estes place without his knowledge, and that, when he discovered any interference, its use would be immediately reclaimed. A fair example of these interruptions, if they can be termed such, finds expression in the statement of some of plaintiffs’ witnesses, to the effect that they would sometimes go up and cut the Estes dams, after which water would occasionally run a day, and again not that long; that when they went up and turned the water down or cut the dams they would not speak to Estes about it; or, as stated by Kennedy, that during the 13 years he was on the Gardner place he did without water most of the time on account of persons using it on the Estes farm, and “once in a great while” he would go up and tear dams out, and that when the water was thus obtained it would “probably come down one day and maybe not two hours,” the effect of which was that it came near drying them out altogether.

16. Under Section 4, B. & C. Comp., plaintiffs cannot maintain the suit unless it appears that they or their predecessors *631were seised or possessed of the property in question within 10 years immediately prior to the commencement of this proceeding: Fellows v. Evans, 33 Or. 30 (53 Pac. 491); Maas v. Burdelzke, 93 Minn. 295 (106 Am. St. Eep. 436: 101 N. W. 182). * To gain possession it must be such a re-entry or recapture of the use of the water as can be turned complete. Possession by permission of Estes was insufficient for this purpose, and a mere temporary cutting of his dams without his knowledge, whether to his injury or not, would be insufficient. It would not be seriously contended if A. takes possession of land, fences it, constructs and occupies a residence thereon under a claim of ownership, etc., for 10 years, and B. at different short intervals forced himself onto the land, placing his tent there and remaining until discovered, or until dispossessed as soon as discovered, that such interference and possession would be sufficient to stop the running of the statute. In discussing the question as to whether an unsuccessful action in ejectment would toll the statute, it is given as the rule that “prosecutions, to stop the running of the statute, must be successful, and lead to a change of possession”: Moore v. Greene, 60 U. S. (19 How.) 69 (15 L. Ed. 533). So it might also be said, that an attempt to regain possession of a water right, the use of which had been under the actual control and in the possession of another, must be successful and lead to a change in its control before it can defeat such claim under the statute. In order to have affected the legal status of Estes as an adverse claimant, so as to prevent the statute from running, he must not only have had knowledge, actual or implied, that the interference was taking place, but there must also have been at least an implied yielding thereto; or, if not, then there should have been such an entry as would have challenged this right to such extent as would ordinarily have been termed successful, and not possession for merely such time as to enable Estes to learn of the removal of the dams and replace them: Angelí, Water*632courses (6 ed.), §211; Workman v. Guthrie, 29 Pa. 495 (72 Am. Dec. 654). The reason and spirit of our statute on the subject does not contemplate that slight interruptions will stop its running in favor of one, who, for all practical purposes, maintains possession of the property, for, if such rule should prevail, so far as applicable to the determination of water rights, it would, in effect, be a mere nullity.

17. Thus far we have examined only the question of estoppel urged by plaintiffs relative to the defense of adverse possession, relied upon by the defendant, thereby first considering the main points to which our attention has been directed by counsel for the contending parties. But, whether intended as a foundation upon which to base the defense of adverse possession, by way of indicating the origin of the “claim of right” of his grantor, or as a separate, complete and sufficient defense, defendant pleads and maintains that his claim is prior in time and superior in right to plaintiffs’, and, these averments being consistent, it becomes immaterial as to which is intended. A similar allegation relative to priority of their appropriation is made and urged by plaintiffs. This feature, being essential to a complete determination ‘of the effect of the question of estoppel under the issues and evidence relative thereto, will be considered. From the proof it appears that plaintiffs’ rights, when considered with reference to their allegation of prior appropriation, independ-. ©nt of-the Estes and Gordon deed, did not attach prior to 1875, if prior to 1884. Littlefield testified to having known the .various farms on the creek continuously since 1862, and that he first saw ditches on plaintiffs’ lands in 1875. The testimony of M. J. Hindman indicates that a garden was Irrigated there in 1867, but from what source of water supply is not shown. Th© ditches observed, so far as appears, may have been constructed to catch the flow from springs testified to as being below defendant’s points of diversion, some of which were on plaintiffs’ lands.

It was incumbent upon plaintiffs, in order to avail themselves of this right, to clearly prove all the elements essential to a right under the doctrine of prior appropriation, and the evidence disclosed is insufficient to establish their diversion and appropria*633tion for that purpose earlier than 1884 (Morgan v. Shaw, 47 Or. 333: 83 Pae. 534), unless the deed referred to is sufficient. In fact, it is not clear that plaintiffs are endeavoring to show an actual appropriation of the stream sufficient to maintain their rights in this respect, earlier than that year, except to the extent shown by the color of title beginning with Estes’ deed, already considered. The defendant, however, clearly and without question establishes a diversion for his lands not later than the year 1872, and shows the application thereof to a beneficial use at all times since. It cannot be doubted, therefore, that the appropriation claimed by defendant is prior in time to plaintiffs’ appropriation; but it is maintained that defendant should be and is estopped, by reason of his grantor’s deed to their predecessors, from pleading any right or claim to the use of any water from Washington Creek as against them, not only by adverse possession, as heretofore discussed, but from pleading a prior right to its use. Estoppel, as here urged, is evidently based on the assumption that defendant, in relying on his claim as prior appropriator, does so on the theory that he obtained his right to divert the water by reason of the interest sold to Smith in 1864, which had its inception in the appropriation made on the Estes farm in 1863. Owing to there being no privity of estate between Estes and Smith, this claim cannot be maintained (Low v. Schaffer, 24 Or. 239: 33 Pac. 678); but, notwithstanding Estes cannot tack his appropriation to. Smith’s rights, the diversion in his own right, as above stated, attached prior to that of defendant.

18. We are then confronted with the question: Can the defendant, notwithstanding such deed, avail himself of his claim in this respect? The doctrine of estoppel is intended to preclude fraud, and to that end imposes silence on a party, when in conscience and honesty he should not be allowed to speak: Van Rensselaer v. Kearney, 52 U. S. (11 How.) 297 (13 L. Ed. 703). As usually understood and applied, estoppel can be used only that the ends of justice may be subserved.

. 19. Then, when it is remembered that Estes and Dill conveyed only their inchoate title to the waters of Washington Creek, *634which consisted only of such rights as a notice of location thereof could give, which, so far as appears from the record, was but a claim of right requiring due diligence for its complete development, they transferred by their deed all they were able to convey, and since, after receiving such conveyance, the grantees neglected or failed to perfect the right thus granted, can it then be said the ends of right and justice would be subserved by holding the grantors to account under their covenants of warranty for the failure of the grantees to perform a duty imposed upon them by law, and Avhose acts or nonaetion the grantors could not control, and over which they had no supervision ? We think not. To hold their grantors estopped to assert an after-acquired title, under such conditions, would be to make estoppel a weapon of injustice, rather than a shield to protect the wronged. When the deed was given, the grantors warranted that, up to that stage of the proceedings, there were no outstanding claims which could defeat the rights therein conveyed, if diligently perfected. The grantors warranted that they Avould hold up> their end of the log, but not that the grantees would not let theirs fall. At the date of the deed the legal title to both land and water was in the government. The grantors had but an inchoate right in each, and both were subject to forfeiture either by intentional abandonment or an act or failure to act, which the law implied as such. The long delay after 1864, whether for 5 years or 20, constituted an abandonment under the facts shoAvn, and left all, rights thus forfeited subject to an appropriation by others: Seaweard v. Pacific Livestock Co. 49 Or. 157 (88 Pac. 963).

Estes, in 1872, if not earlier, made such an appropriation as vested in himself a complete right to the use of the stream to the extent thus applied, and, unless estopped as claimed, the rights of plaintiffs’ predecessors became subsequent to this title-thus acquired by him, both in time and right; and it is immaterial whether he thought by his marriage to Mrs. Smith, in 1867, he succeeded to the interest of the heirs of her former husband, for he openly asserted and maintained his right as an appro-, priator, independent of any previous claim thereto. When the deed was executed to’ Gordon and M‘anville, the grantees kneAV, or were bound to know, as a matter of’ law, the extent of the title *635conveyed; that the grantors had but an inchoate interest, requiring a duty to be performed on the part of the recipients, in order to carry into effect the right transferred to them — as much so as to the “squatter’s rights” to the land described in the deed, the forfeiture of which, under like circumstances, would not have precluded the grantors from asserting an after-acquired title thereto.

20. The adjudications on this question are not numerous, but we feel fully warranted by the principles enunciated in the few decisions bearing on the question, as well as by the reasonableness and justice of the rule, in holding that an after-acquired title by the grantor will not inure to the benefit of the grantee, where the latter knew at the time of the transfer that the grantor had no title and did not expect him to procure one, or where the title purported to be conveyed is an inchoate interest, the completion or forfeiture of which depends upon some acts to be performed, or diligence to be exercised by the grantee. We find no authorities to the contrary, and supporting this rule are Viele v. Van Steenberg (C. C.) 31 Fed. 249; Goodel v. Bennett, 22 Wis. 565; Wallace v. Pereles, 109 Wis. 316 (85 N. W. 371: 53 L. R. A. 644: 83 Am. St. Rep. 898); Altemus v. Nickell, 115 Ky. 506 (74 S. W. 221: 103 Am. St. Rep. 333). It follows that defendant is not estopped to claim either as an owner through his grantor by prior appropriation, or by adverse possession for’ the statutory period, and, when both claims are considered in connection with the facts disclosed, it conclusively appears that defendant has acquired a right to the use of sufficient water from Washington Creek to properly irrigate the amount of lands heretofore cultivated, amounting to not less than 60 acres.

21. As to the quantity of water, however, to which he is entitled for this purpose, it is not so clear. Witnesses for plaintiffs testify that their farms have consumed all the stream will furnish, when it could be procured, and that all of it has been and is necessary. Defendant and his witnesses also indicate that all has been necessary for and applied in the irrigation of his premises. In this respect they give only their opinion, without stating the facts from which their conclusions are inferred; but as it is shown, and not controverted, that the lands along Wash*636ington Gulch require from au inch to an inch and a half of water per acre for their proper cultivation it will be presumed that this amount is sufficient, and the apportionment will be on this basis, notwithstanding the opinion of defendant’s witnesses that the Estes farm requires all the water in the stream. It being shown, and not questioned, that defendant has between 60 and 70 acres of land in cultivation, including orchard, upon which good crops have been raised each year, it will be assumed that a flow of 60 inches of water is ample for defendant’s, irrigation and domestic requirements: Morgan v. Shaw, 47 Or. 333 (83 Pac. 534).

22. The record is silent as to the quantity of water understood by the use of the word “inch”; but it has been held that, when the record fails to disclose the amount intended by such designation, it will be presumed that it was to be measured under a six-inch pressure: Morgan v. Shorn, 47 Or. 333 (83 Pac. 534); Bowman v. Bowman, 35 Or. 279 (57 Pac. 546). This designation, however, is not sufficiently definite to be a safe guide at all times in ascertaining when the rights of a person awarded a given number of inches under six-inch pressure, etc., are being invaded. In speaking of the measurements of water in use in California, Mr. William Kent, in his recent reference book for use by engineers and mechanics, states the situation thus: “The term ‘miner’s inch’ is more or less indefinite, for the reason that California water companies do not all use the same head above the center of the aperture, and the inch varies from 1.36 to 1.73 cubic feet per minute each; but the most-common measurement is through an aperture two inches high and whatever length is required, and through a plank 1¿ inches thick. The lower edge of the aperture should be two inches above the bottom of the measuring box and the plank five inches above the aperture, thus making a six-inch head above the center of the stream. Each square inch of this opening represents a miner’s inch (under six-inch pressure) which is equal to a flow of 1^ cubic feet per minute.” See, also, Wiel, Water Rights, pp. 147, 175; Newell’s (Practical) Irrigation, p. 128; Troutwine, Civil Engineering, p. 546; Merriman’s Treatise on Hydraulics (1904) pp. 122, *637123, 124; Mill‘s Irr. Manual §§ 88-92, inclusive; Dougherty v. Haggm, 56 Cal. 522.

It is evident that the only reliable method by which any certain number of inches of water, when awarded under this method of measurement, can always be determined, is on the basis of what is termed by engineers as “second feet,” or quantity of water flowing past a certain point in a given space of time. The ratio recognized by the authorities cited and rule quoted is that one inch of water under six-inch pressure equals one-fortieth of a “second foot” — that is, 40 miner’s inches furnish a flow of water equal to one cubic foot (7-| gallons) per second of time— which ratio we find substantially accurate, and will be adopted here. “Inches” of water, when unexplained, having been determined to have reference to the quantity so designated under six-inch pressure (Bowman v. Bowman, 35 Or. 279: 57 Pac. 546), it follows that defendant, having from 60 to 70 acres of cultivated land requiring irrigation, is entitled as a first right to the use of 60 inches of the waters of Washington Creek for irrigation and domestic use.

23. As to any water in excess of his actual requirements, as here awarded, including the quantity of water that may pass below defendant’s lands after its use thereon, plaintiffs have acquired a right thereto, at such times as needed by them for the purposes stated, as against defendant: Seaweard v. Pacific Livestock Co. 49 Or. 157 (88 Pac. 963). And, as between the parties, plaintiffs and defendant herein, at all times that the water is not required by one of them, it should be at the disposal of the other, for irrigation and domestic use, when needed: Mann v. Pwriter, 48 Or. 321 (86 Pac. 598).

24. The trial court being invested with discretionary powers in taxation of costs, in the exercise of which there appears no abuse, the decree in that respect should not be disturbed; but the cross-appeal appearing justifiable on the part of defendant, he should be allowed his costs in this court.

The decree of the circuit court should be modified and one entered in conformity with this opinion. Modified.

Mr. Justice Eakin having tried the cause in the court below did not sit in this ease.

Case Details

Case Name: Gardner v. Wright

Court Name: Oregon Supreme Court

Date Published: Jul 30, 1907

Citations: 91 P. 286; 49 Or. 609; 1907 Ore. LEXIS 167

Court Abbreviation: Or.