127 P. 548 | Or. | 1912
Opinion by
J. D. Cornutt, plaintiff’s grantor of the land, constructed the ditch for the diversion of the water by plowing a furrow, where not too rocky, and completing the same by pick and shovel, and used the water for irrigating orchard, garden, and some hay land.
1. Defendants contend that the ditch was abandoned for five years prior to 1910. There is no evidence of abandonment, except an attempt to show a nonuser of the water for that period; but, if such nonuser were proved, it would not establish an abandonment. To constitute abandonment by nonuser alone, such nonuser must have been continuous for a period equal to the statute of limitations for the commencement of actions to recover real property, namely, 10. years. Dodge v. Marden, 7 Or. 456; Watts v. Spencer, 51 Or. 271 (94 Pac. 39). And Section 6546, L. O. L., has no application to such a ease as this. Defendants initiated their water right November 19, 1909, by obtaining a permit from the State Engineer, under Section 6624 et seq., L. O. L.
“All surplus water * * together with the water of all lakes, rivers and other sources of water supply upon*260 the public lands * * shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.”
In Hough v. Porter, 51 Or. 318, 404 (95 Pac. 732: 98 Pac. 1083: 102 Pac. 728), it is held under this statute that every riparian owner, regardless of the date of settlement, is entitled (at least as against a subsequent appropriator) to a quantity of water reasonably essential for his domestic use and for the watering of his stock; but, beyond this, he is entitled to water for irrigation only to the extent to which he is the prior appropriator. Such appropriation is limited to the amount actually diverted and used for a needful purpose.
Plaintiff’s grantor diverted water for irrigation in 1902, in a ditch about 10 inches wide by 6 inches deep, for the irrigation of the orchard, garden, and hay land. The amount irrigated is not definitely stated, except as three or four acres of orchard, three or four acres of garden, and some hay land. Gardén was not raised every year, nor was hay irrigated more than a few years; and it is not possible from the data before us to determine what amount was actually used, nor how much was needed by plaintiff or his grantor. Defendants’ use and diversion is also uncertain, and the data given us from which to compute it is too indefinite for that purpose; the record in this case being very incomplete, and not one upon which a full adjudication of the water rights involved may be had.
The decree of the court will be reversed, and the cause remanded to the lower court for such further proceedings as in its opinion may be proper. Reversed.