Hough v. Porter

Hough v. Porter. [51 Argued re-argued August February 7, May 19, 1908; 4, decided decided January 5, 1909.

HOUGH PORTER. 732; 1083.] Pac. 98 Pac. Parties —Joinder. rights irrigation Where, 1. in a suit to determine water in a stream for rights litigants purposes, the determination of the could not otherwise have been had decree, with accuracy, reasonable nor the when entered’ effectively enforced, presence parties, without of other the court ivas brought they authorized to direct parties, be in and made under providing 41,894, Sections B. Oomp., that, & complete O. when determination controversy of a cannot had presence parties, be without of other brought court shall cause them to be in. Rights in Stream —Action—Parties—Joinder. 2, Where a controversy any diversion or use of water of a stream in or by any its branches of the defendants affects the interest of each of the join plaintiffs, may aliare in plaintiffs interested the relief demanded rights; protection to secure may of their and same rule determines who be made defendants. Gomel aint. irrigation rights, Where, suit, 8. in complaint to determine suffi- charged rights ciently an plaintiffs’ unlawful interference with in the stream alleged P., had, defendant and then that all the other defendants rights have, claimed to str.eam, some or interests in the waters of the unknown, exact plaintiffs nature of which towas but that defendants’ rights interests, any, plaintiffs waters, if were inferior in such against complaint sufficiently pleaded a cause action all the defendants providing Oomp., may under person Section B. & O. made controversy a defendant who has or claims an interest adverse plaintiff, necessary party complete is a who to a determination or settle- n question ment of the involved therein. Parties —New Parties. giving discretionary power require 4. A statute a court all interested parties, implies power necessary carry be made orders and references thereto into effect. Judgment —Oonclusiveness—Parties oe Record. part affirmatively 5. The failure on the of some defendants to assert their rights, proceedings, pre- cannot affect the interests of others in the but will asserting subsequently in default their as to clude those from claims matters rights against controversy, in there determined. Rights Inter oe Deeendants Se —Determination. cross-bills, Oomp., provides that, B. & O. abolishes but in 6. Section arising requir- law, is entitled to relief out of facts where defendant actions ing may, interposition equity defense, to his of a court of and material he filing therein, plaintiff complaint equity also as file a on his answer cross-bill, thereafter be tried nature of a on which the issues as in Held, section, equity equity. that under such in a suit to deter- a suit in rights, up se defendants were entitled to set their claims inter mine adjudicated answers, the same on such notice as the court their and have may prescribe. Jan. v. Porter. oe Issues. Same —Trial n adjudication se, The to an 7. defendants of their inter proceeding arising having limited to where the cause of the suit is one out of or subject-matter

reference to the thereof. Proceedings. Ancillary Process —In adjudication desiring against Defendant, 8. an of his claim his co-defend- original ants, may suit, cause summons to be issued under the title of the co-defendants, copy answer, the same on have may served with a of his or he requiring court, copy a of the have served order of his co-defendants appear respond answer, to the affirmative matter within the specified. time therein Riparian Ownership. thing prior riparian There is no ownership 9. such as so far distribution irrigation purposes riparian ; water for between owners is concerned rights being depending riparian one, of a owner to the waters a variable on by proprietors. use other Waters and Water Courses —Diversion—Extent. explicit required 10. More evidence is for the determination of water rights right, riparian between owners than under other claims of and in acreage large instances, some scarce, by where the is and water a distribution method, by periods by the rotation or time, rather than a division of its quantity, may necessary. become relative existing Appropriation 11. Act at the to the Cong. time, appropriation July 26,1866, 262,§ 9,14 oe Waters. rather than the creation of a new one. c. water, Stat. merely (U. S. a Oomp, recognition St. 1901,p. rights 1137), Statutes —Title oe Act. Congress 12. required The title to an act of is not pro- to embrace all its visions, necessary for which it body reason is to look to the of the act to ascer- tain the intention thereof. Appropriation. Prior necessary procurement 13. It is to the of title to lands under the desert Cong. (U. [Act. land act 1877, 107, March Oomp. e. 19 Stat. 377 S. St. 1548)] p. inception of the title to the purposes located for such depend upon prior a bona appropriation. fide Dedication —What Constitutes. giving 14. A dedication is the property devotion or proper for some object and in such manner as to conclude the owner. Deeds —“Reservation.” something 15. A “reservation” by extracted from the res covered whole general grant, lessening thing granted terms of the from what it would otherwise been. have Public Lands —Extent oe Title. extent, 16. In order law, to determine under of a title included in government, grant, conveyance by from the patent, whether otherwise, or affecting we must take into consideration all acts in force at the time subject public domain,' in order to ascertain what interests remain to transfer. Public Lands —Grant—Reservation. legislative any 17. A by reservation interest in lands enactment is as grant, effective, law, as a expressly matter of as if stated in patent, or through may instrument which title be asserted. Conveyance—Reservations. Public Lands — government gives rights privileges necessarily 18. form of rise to Our accordingly law, hy

unknown to the common not covered the terms general it, important use under for which reason it is not what term such designated. may reserved interests in land be Disposal—Reservations. Public Lands — government legislation, cannot, by any state, 19. The determine after legislation lights admission, riparian its what its or other water relative be, may dispose public shall but of its lands and all incident thereto may best, time, such separate manner as it deem and either at the same or grant, acts, therefrom, dedication, otherwise, make such reservations may see fit. Disposition op Riparian Interests. flowing thereof, public part 20. The water over the domain is a and the general government grant may dispose riparian of its otherwise interest separate from the rest of the estate. Rights. op Acquirement "Water Cong. [Act 8,1877, 107, 21. Under the desert land act March c. 19 Stat. 877 (U. 1548)] right Comp. 1901,p. S. no limit is fixed as to the time a St. right acquirement exercised, except of a water that he who first given applies diverts it to a beneficial use is the better thereto. Rights Conveyance op — Grantee. acquiring Any subsequent part public 22. one title domain Cong. (U. 8, 1877, 107, Comp. the date of Act. 1901. March c. 19 Stat. 377 S. St. 1548), knowledge p. accepted it, thfereto, title full of law in force at with with subject import the time and to the full thereof. Supplementary Dedication — Acts. legislative byw'hicli by 28.-Acts or dedications enactments reservations conveyance sup- required expressly are are to be stated in the instrument of nothing legal plementary only, and, record, for add to the while convenient effect of such reservations therein. op Power Grantor. grantor, government greater convey any 24. Like other the federal can no title than it has. otherwise, stitute a ests affect the uses for held which the w'hich existing riparian rights cations, by 25. 26. The Reservations (U. Dedication — free for the bestowed, must be determined The extent and Desert it follows that S. rights reservation Oomp. held at the time legal recipient construing give rise to the dedication. Land Act. as to all effect of the St. appropriation Extent—Bppect. — Appropriation and dedication of the benefits legal lands settled p. such act 1548), by the act language effect of a and use of the abrogated namely, and in national to the upon to accrue therefrom from the instrument conjunction other in’Act por dedication, “There shall be and or entered after the common law purposes government, public Irrigation Cong. public for of all with the conditions March as well there irrigation,” so far as such inter- interest, 8,1877, making March shall enumerated, as the rule Eppected remain and be c. exercise 3,1877. riparian 107,19 respecting manner such dedi- etc., from Stat. then con- by in or Construction—Presumptions. Statutes — construing legislative respecting lands, public disposal acts In 27. all concerned were presumed possible results that the best must be Jan. legislative by body and,

intended practicable, where such construction applied should be as makes such intent effective. Rights. Operation Riparian Desert Land and Act — Effect — legal Cong. Marcha, [Act 28. While the effect of the desert land act (U. 1548)] abrogate 107,19 Comp. 1901, p. c. Stat. 877 S. St. was to the modified rights riparian doctrine as to all lands acquired to which title has been after go rights originally thereof, the enactment it does not so as to affect far. giving rights riparian ; is, rise to the doctrine for domestic and stock requirements. Rights Riparian Owner. regardless owner, Every riparian therefore, 29. settlement, of the date of quantity reasonably is entitled to the of water essential to his domestic use watering including stock, and for the irrigation supply of his proper sufficient for the garden produce may of such proper be essential to the suste- family. nance of his Appropriations. on Lands on Settlement Stream — bordering through upon upon 30. Settlement land or may which a stream adjacent, flow, may or to natural supply which a source of water be notice, situated, which it is in itself sufficient water for domestic requirements uses and incident thereto are and will demanded; continue to be mining, irrigation, but, appropriation to constitute an power purposes, good steps thereof, some towards a diversion or other and notice, sufficient necessary. terests. tempt together clusions here reached. whatever 81. The references Riparian The with define, riparian case, Oregon cases, examined, Rights. nor to in of Stun- rights any the landed (lode Beck, manner riparian U. S. 541 establish and proprietor held, rights (10 Sup. -may constitute in conflict with the con- rule Ot. 850: 33 have, but do not at- respecting recognition Ij. Ed. such in- 761), Appellate of, Decisions Courts —Extent as Precedents. appellate precedents only of an 82. Decisions court are to the extent of the court, considered, points presented by and there determined it. Appropriation. Water Water Courses —Artificial Channels — high-water artificially opened, After channels are they, 33- and after to- dug connecting gether stream, the cuts them with with the main have been opening by parties them and interest, used their successors and such recognized acquiesced use is as branches main creek others branches, period the main stream and its tributaries prescribed on for the limitations, they channels, the statute become natural and owners of adjacent lands thereto are law entitled to the same consideration and to respect unquestioned the same thereto as are those on the main and channel. Waters and Water Courses —What Constitute.. having spreads, current, 34. the water no Where well-defined as into a accordingly marsh, course, it cannot be deemed a water docs not come permitting any riparian rule a claim thereto within owner. and Water Water Courses^-Diveksion. closed, artificially otherwise, 35. a channel has been or Where and the during year therefrom water diverted the low-water season of each for 10 years, riparian portion year it loses its character for that of for each which deprivation and water thereof occurred. obstruction 51 Or.-11 v. Porter. Irrigation Rights Appropriation Waters and Water Courses — for — Riparian Owners. rights examined, that, 30. Evidence and held while the relative of the irrigation parties purposes for are to be awarded in accordance the re- with irrigation rights spective appropriation dates of purposes, for these are sub- ject to the riparian proprietors each of the upon to insist a continu- together ous flow of demands, sufficient water to meet their domestic with watering such supply additional for the of a reasonable number of stock for each, depletion of which may stream shall not be sufficient it become injurious stagnant using or to the health of those or their stock it. Appeal Review—Sufficiency and Error — of Evidence —Remand Testimony. for Further. 37. testimony Where the appellate before the ample court is for a de- quantity termination of the to be left properly supply the stream domestic necessary other requirements natural wants and riparian of the along owners stream, appellate may controverted court determine points other testimony adequate which the purpose, is for and re- mand the permission cause to the court below with take further evidence determining supplemental to enter decree the continuous flow neces- sary to protection the full riparian parties of the interests to the suit. Appropriation —Priorities. remaining surplus 88. The waters after the domestic and stock demands riparian of ject subsequent owners on all lands entered 3,1877, to March are sub- appropiation, thereto vest in the order of time which the applied water has been diverted to a beneficial use. “Miner’s Inch” Defined. irrigation “inch,”as 39. The word used with reference pur- water for “ poses, is estimated on the basis of 40 inches to one second foot.” “Duty of Water.” irriga- reference, “duty water,” 40. The term as used with to water irrigation given purposes, tion quantity means any essential tract. “Head of Water.” irriga- water,” 41. The term “head of as used with reference to water quantity'entering purposes, tion is the the intake of canal or ditch. Irrigation Appropriation. — examined, Testimony duty held, 42. as to from one- acre, per third of an to two-thirds inch estimated on basis of 40 inches to one foot,” ample “second for the ol' the lands involved. Appropriation —Method. appropriation method is essential to a 43. No certain of water. An valid ditches, by may made, without construction of dams in effective diversion slough subirrigating lands, channels, thereby or other overflow- ing them, by any process application result in the successful use. the water to a beneficial Appropriation of Use. —Method and such economical 44. The water must be used such methods man'neri greatest desired, application to uses secure the adopted in its will must be change though necessary duty available, at considerable ex- becomes even origin methods, there was but little which had their when de- pense tko old correspondingly supply abundant. mand and Hough Jan. v. Porter. Right. Appropriation —Limit of by 45. quantity Beneficial use and needs of the appropriator, and not originally diverted, capacity nor purpose, of ditches constructed for the rights. determines the limit his of Tacking. - Appropriation right The, appropriator 46. of an of water cannot be tacked to that aof squatter upon public lands, who, mere may applied while he have water irrigation

in the subsequently by of the land subsequent appro- owned such priator, has it. abandoned Right. Appropriation —Transfer squatter 47. upon public may acquire But a mere lands such in an interest right possession to the may, thereof parol, that he even transfer his rights l-ights another, thereof, therein purchaser event claiming prior under appropriation, doctrine relate back to the. time of original diversion. Appropriation Squatter Conveyance — Interest. right 48. A mere claim of squatter, accompanied the land held a if application a divei-sion and thereof, of the water in the reclamation is suf- right, convey ficient gether to entitle him to to another his interest in the water to- may with such interest as he may have in the land to which the water appurtenant. Rights Swamp Lands —Water for. originally may 49. The fact that lands swamp lands, have been and re- claimed, acquired such, and title preclude thereto as does the owner from acquiring right irrigation a water for the thereof. Irrigation Swamp —Reclaimed Lands. 50. When lands are swamp, such, shown to be and reclaimed it will be irrigation presumed prior that necessary; to its reclamation no thereof was when, reclaimed, district, but once if in an arid it comes within the same rule respecting irrigation rights and the same law riparian applies and to other agricultural vicinity. lands in the Appropriation —Priorities—Ditches. claiming party A appropriator 51. as an cannot, purpose, for the of estab- lishing right prior another, a avail himself of a ditch constructed for drain- age, appears was, unless such ditch prior the time of and to the in- rights, irrigation ception of other intended purposes as well. crease affidavit tion as and for an reclaimed, Mareh rights. Appropriation 52. Where 53. Where Appropriation —Priorities. having 3,1877, required either a diversion he will not be unreasonable an a c. been initiated person appropriator to the effect —Failure Stat. 877 files on land under permitted time or use prior fails to use delays to Use Water [U. thereof to the date of such the lands are desert S. to assert increasing Comp. is the full amount made the desert 9t. Diverted. right subject use, entry. to water p. in character 1548]), land act any subsequent to the of water and makes for the intervening (Act Oong- diverted, irriga- un- in- Change Appropriation — Method. 54. Where water has appropi-iated been applied in the of a during long land, after, tract of period of use in a certain manner change locality, in a certain other attach, in the stream such a appropriation made, not be point either of the of diversion or of the v. Porter. change prejudice substantially place use, of its where to make such will appropriators. interests of such other Appropriation. diverting When, use, purpose 55. for the for a beneficial a ditch is commenced, prosecuted and within a time reasonable the work thereon completion, therein, applied and water turned'into it and to the use appropriation, quantity applied» to the extent diverted relates back to the commencement of the work. Rights. Appropriation —Tenants Common —Determination through rights parties 56. claim their When the same diversion and from through originally ditch, the appropriation by same which the was made them by where, predecessors interest, they ; or their in are in tenants common and involving rights thereon, in a suit with others on the stream no issues are rights common, framed may between such tenants their be left relative rights against undetermined, only parties and their as other to the suit will be decreed. Appropriation. Diversion — right by 57. When tenants in common claim a water reason of con- the canal, subsequently struction a permitted of and the water is to flow down diverted, the inception channel and is elsewhere the as well as the limit of rights, against intervening their appropriators, by as are determined the capacity mentioned, by any subsequent diversion, of the canal and either place or in time. Irrigation Change of Method. — owning right change may 58. Parties the to use water the of method con- veying change prejudice point use, materially to the of if such does not rights doing gulch, ; any dry ravine, hollow, others’ and so as well as the stream, may by appropriator natural channel of a be used the in its water place transmission of use. Appropriation —Method Use. through conveyed any course, is natural 59. Where water channel or water prejudice may, practicable when to do so the user or users without substantial commingle rights, the water thus diverted and to others’ let take it out at point. some other Change Evaporation. by Diversion — of Method —Loss through right by acquired and the con- 60. Where a is the use of water tapping supply, any and users there- struction of a ditch of water source stream, points other on the after elect to take the from water thus diverted including by evaporation, such loss as due allowance must be made for loss must, distribution, may which loss use and occur under different methods quantity practicable ascertainment, from awarded so far as be ceducted original of use. under diversion and method Appropriation —Beneficial Use. may compre- use to a beneficial A Ude water 61. bona intention to devote through persons upon lands by other and other hend the use to be made appropriator. than those of the Appropriation —Method. against Rights, may be initiated persons, to the use of water third 62. tapping heading through supply upon of water upon and the source a ditch acquired, another, has been but which from whom no easement the lands of revocable, none but the owner of the and may by of such land be the owner complain, position a are in the ditch is constructed premises across which proof thereon this feature no no issue and offers such owner makes and where disregarded. be will Jan. v. Porter. appropriation. Waste Water — 63. is Where water claimed as the “waste” waters from the farm of an

adjacent resulting user, water all the by excess of that caused seepage quantity by from appropriator but diverted such in excess of accordingly needs, quantity in excess may to which he receiving applying entitled, person and the the excess to a beneficial use right acquires therein, a any vested appropriator surplus would an other right, water, inception of which like that of other appropriator, dates steps provide from the first taken to for its use. Adverse Use —Evidence. showing by plea user, 64. a Under title appli- adverse of a continuous by upper cation the water for a beneficial proprietor use an for more than showing 10years aprima makes claim, under such facie defeat which it is questioning upon person by incumbent competent such evidence to showing overcome thus made. Adverse User —Evidence. prima 65. Where claim adverse user is established facie continuous application required prior suit, use for the time the onus thus thrown contesting party fully thus such claim is proof met that within shortage statutory period supply in the water below the adverse prejudice substantially claimant not sufficient the interests of other appropriators supply from the source of water from appropriation which the is made. Pleading —Inconsistent Defenses. possession prior 66. appropriation Adverse are not inconsistent de- pleading. fenses, and both be asserted in the same Appropriation. Adverse Possession — pleader possession only, 67. Where on proof relies adverse and in his defense, fails to sustain such and the evidence offered is sufficient to establish appropriation, may considered, an it be and his under the doctrine of showing prior may appropriation be established in accordance with the thus made. Appropriation —Nonuser. The to the use 68. of water cannot be deemed forfeited on account of alone, period prescribed nonuser of the by short the statute of limitations real actions. Bights Water —“Abandonment.” right, 69. To constitute an “abandonment” of a water thex-e must be a con- currence of the intentioix to abandon and an actual failure in its use. Bights Water —Forfeiture. Involuntax-y 70. abandonment px-operty of real cannot work a fox-feiture rights any previously of water initiated in connection therewith. Changing Loss of Lands — Water Use. lights 71. Water initiated in the reclamation another, lands lost to who inaugurated x-ight in-igation, change had a to water for cannot the use thereof having right, lands; to other but he will be treated as abandoned such where prejudice not to do so would work to the appx-opriators. of other Trial —Dismissal—Grounds. parties 72. one of the When proof suit has not offered as to his rights, claiming x-ight against appear and it does not that he is a to the use as involved, others whose interests may, are discretion, court in its dismiss prejudice without to him. v. Porter. and Dismissal Nonsuit —Discretion of Court. claiming properly 73. Where trial court orders all and interest in parties, they appear, may, matters before it to be made it in the exercise grant discretion, nonsuit, of its sound refuse to a in motion which event against proceed may their failure to further result in a decree them on the grant

merits; granted, may, proper, motion, and, but the court if it deems such if rights their will not be determined. Appeal Equity in —Decree. general that, parties 74. it is the rule as to the interests of the to a While equity appeal, suit in who do not more favorable than entered in the decree general entered, may always invoked, trial rule not court will not be such be appearance voluntary instance, in the first where their is not but made in requiring subject- response to an order of the court all interested in the parties. matter of the suit to be made Rights. Water adjudicated, rights parties whose are at all times that 75. As between by more, must, controvery required one or when is not needed water subject by uninterrupted their others, use. remain Rights Application. Water — application in their to the number of acres All are limited 76. acreage acquired, except in the when increase and to the land for which prejudice change place work to the material of others or of use will not in the stream diverted. interested Rights Judgment. Water — concerning generis, questions practice suits are sui 77. Water precedent, for-which reason courts of provided are not for either statute or usually necessarily practice the rules equity bound in all cases are not summons and order of the invoked; parties where are served with other, to each of them di- required interplead with reference court disregard order, court, rectly indirectly spirit of the in the act in of the affecting discretion, may their in- either enter decree exercise of its sound just may equitable. terests, not, as it deem Pleading - Effect. —Admissions requiring all interested If, spirit the court’s order of the 78. in violation avoiding order, any the effect of such parties, purpose of to be made for the framing neglect make issues, them between themselves parties or in to frame réeognize pleadings which, follow, and to makes a de- in their admissions pleadings may enforcement, amended to be deemed impracticable cree general being purview of the order thereby proof, within conform to the harmony proof with the and inimical court, and all admissions of the disregarded. a decree to the enforcement Appeal De Novo. Equity —Trial apeal, on Code, equity are tried de novo Since, suits in under 79. discretionary power statute, the same by the has court, except limited where trial court. thereto as in reference t>he Supplemental Decrees. Owing de- usually enforcement encountered to the difficulties 80. conflicting suits, interests, the trial in water many are crees, there where supplemental advisable, de- to’enter such power when deemed has the court may be neces- appellate court as the decree cree, with not inconsistent appellate effective. court decree of sary make the of Court. Costs —Discretion necessary by a was made that suit the evidence is clear from 81. Where against wrongful knowingly should be taxed parties, costs one of the acts of Hough Jan. v. Porter. injured directly parties thereby; him appears in favor but where it general proceeding arising parties that to the are benefited result from adjustment conflicting stream, may,

an of all claims on the in the court adjudge discretionary powers matters, of its under the Code in such exercise pay his cost. that each own Henry Judge. L. Benson, From Lake: King. by Mr. Statement Commissioner 14, 1900, by April on Marion This suit was instituted Conley Hough against Stephen A. D. Por- and Annie C. interfering ter, him with the restrain from flow Creek, Oregon, County, Lake waters of Silver plaintiffs’ premises. day On 8th October of year, by court, permission same of the an amended com- plaint filed, appears in which Annie as the C. A, Stephen plaintiff, only sole with D. Porter de- fendant, averring, effect, grant- plaintiff her ors, years prior thereto, for more than 15 were the own- described, riparian ers of arid certain land there to the named, years stream which re- for more than 20 has quired the use of 500 inches the waters of Silver Creek proper irrigation thereof, for the plain- without which etc.; worthless, year tiff’s land would become that in the wrongfully constructed, Porter and has ever since maintained, continue, and threatens to dam head gate premises in the channel of Silver above her Creek in such manner as to interfere with the flow thereof farm, thereby depriving her her of use necessary irrigation thereof, for the as to which plaintiff adapted avers that has she 280 acres of land chiefly growing grass requiring the amount irrigation thereof, of water proper specified for without which lands would become worthless. These prayer averments were equit- followed the usual able answered, specifically denying relief. Defendant allegations such as were with inconsistent the affirma- answer, tive matter averments affirmative are, effect, as follows: That the cause of did not suit years commencement; accrue within 10 before its Hough Porter. v. described, lands Porter is the owner in of certain fee irrigation allegations sea- followed the usual as the being arid, requiring irrigation, as well son—the lands claiming riparian as as his diversion on the stream — prior appropriator 3, application 1883, from March and of the water of 100 inches to a beneficial use to the extent 1895, pressure; April, under a six-inch and that changed point a of diversion was to more convenient dam, yards below his former from about 200 noint continued, giving dimen- his was thereafter the diversion ditch, etc., carrying capacity fixed sions the its and inches, has con- of which it is maintained been all proper stantly the used since March. lands, would become which his lands

of worthless, and without prayer a the effect

etc. This is followed go dismissed, (1) that: Plaintiff’s suit be and defendant unharmed; preliminary injunction (2) hence that the general dissolved; (3) for other and issued be and such equitable. relief as seem meet and issue, having placed it reply the cause at An amended reporter to take was referred to the official as referee testimony, it report and who did so and certified the court; the cause under ad- and court then took court, consideration, visement. After due on Octo- hearing argument 23, 1901, and ber after evidence being testimony taken, upon and of counsel after finding impracticable duly advised, and and settle complete the matters in con- make determination of defendant, involving plaintiff troversy between the and tributaries, and without the waters Silver Creek appear- parties court, and it presence of before the other parties ing were in- of numerous other that litigation, persons so ordered that all the volved naming them, brought plaintiff interested, plead suit; they parties appear made to the 1902; furnish that the clerk or March on before copy duly certified order with the sheriff Hough Jan.

service, by him, officer, such to be served as within 30 designated. days persons upon the The order directed parties appearing pursuant plead thereto to either defendants, respective plaintiffs, as their interests might appearing appear, as defendants complaint interplead should answer codefendants, their of them. order,

Pursuant to the court’s Annie there- C." permission complaint, asked to amend her amended granted, 20th, following, May which and on filed an added, complaint, coplaintiffs, amended to which was as Mary Kittredge, Conley, the names of J. H. Marion W. Hayes, Hayes, Hayes, Geyer, J. M. John A. C. and W. McCall; defendants, Porter, H. and as A. D. S. D.C. Porter, administrator, Daisy Porter, widow, and F.W. Porter, Porter, E. A. Porter and Carl D. minor heirs by Daisy Porter, of A. guardian; S. D. Porter P. G. Chrisman, Porter, Porter, John C. and James C. guardian; Chrisman, F. M. Lane, Lane, B. F. Jennie C. Jackson, Improvement Co., C. Occidental Land & a cor- poration, and Co., Chewaucan corpora- Land a & Cattle tion, grantee; Jones, McKune, its P. W. Mary E.C. C. Brown, and E. May 20, 1902, D. Lutz. plaintiffs On caused each of the defendants named to be with served summons, etc., practically in the same form and man- filing ner in original of an suit. The amended complaint named, omitting last formal is parts, follows: plaintiff, “That Hough, grantors Annie C. and her years

have been for past, more than 17 last and she is y> y:> now, simple the owner in fee of the S. of the S. of of y> 2, section the 14, the N. of N. E. and’the N. E. 14 y¡, 11, N. W. of section and the S. W. of the W. S. 14 1, township S., of range E., section in 28 14 Lake in Vi. County, Or., containing is, 320 acres. That there and memory ever since the been, of man there has a natural water, Creek, stream of fined bed and known as with Silver well-de banks, flowing perpetual stream of water. That said Silver Creek flows from and over de lands of 330 Porter, through A. fendant S. D. and over said lands plaintiff Hough, riparian is and that all her said land Hough’s year plaintiff to said stream. That in the 1876 grantors appropriated, and diverted and year and ever since until the of said Sil 1895 have used waters irrigating portions ver in of said described Creek those naturally irrigated by stream, inches lands not said 280 water, pressure, measured under a six-inch means of of -ditches, said water dams and and such use of large crops grasses, valuable which were raised and appro hay. That at the time said cut and cured for public priation all the on said Creek were lands Silver belonging government lands, United States. Kittredge Mary plaintiff of section That J. owner containing acres, township range E., 36, in Lake S., 640 Or., possession by pur County, thereof Oregon having lands, from the as school chase State of having price paid purchase third of the received one therefor, purchase said State a certificate of from effect; Creek, and that is now full force and Silver Porter, flowing A. after flows over lands defendant S. D. over Kittredge, plaintiff all the said lands plain riparian to said stream. That her said land is Hayes possession of the H. is the owner and in tiff W. 30, 4,. and lot of section E. N. W. N. y_i 19, lots 3 and section the S. E. of the S. W. County, Or., S., range E., township con in Lake plaintiff Hayes taining is the That John 151.95 acres. 14, possession 14, E. of the N. W. and in of the owner S. E. the' N. of the S. 14, 27 E. and the S. W. 14, County, Or., of N. % 14 range E., 30, township S., 15 Lake section containing 160 That said Silver acres. flowing A. D. Creek, the defendant over lands of S. after plain Porter, tiffs said land of said several flows over all of riparian Hayes, to said all lands is and their said plaintiff Geyer in fee A. is the owner That G. stream. simple 31, 4, E. an<f lot section of the of the S. W. 14 1/2 County, Or., range E., township S., con 15 in Lake 27 Creek, acres,

taining after and that said Silver 105.66 Porter, flowing A. D. flows of defendant S. over lands Geyer, is plaintiff and all said land of all said land over plaintiff is riparian W. McCall said stream. That H. E. of simple sec of the E. of the the owner in fee tion 14 1/2 Or., E., County, township S., range 14 in Lake 3, 28 Hough Jan. 331 containing acres, Creek, 160.04 and that said Silver after flowing Porter, over of land defendant S. D. flows A. plaintiff McCall, over all of said lands of and all his said riparian plaintiff land is to said stream. That Marion Conley predecessors interest, year and his , by patent settled and since then from the 187— government acquired to, United States title and he now of, simple is the owner in fee the W. of section Yz township S., range E., County, Or., 28 in Lake con taining acres, during and all said has times been possession in tiff year plain of said land. That in the Conley appropriated diverted and from land of the States, year United and ever since and until Creek, irrigating has used of the waters of said Silver land, water, his said of 320 inches measured under six- pressure, applied by inch diverted and means of dams such, ditches, large and and of use said water raised crops grass grain. and valuable of That at the time appropriation of said all lands on said Silver Creek were public belonging government lands of the United year 1895, by States. That since the reason of the acts complained the defendant S. A. D. Porter hereinafter of, supply water said Silver has been Creek diminished, plaintiffs Conley but that have year irriga each used the waters of said stream in the land,. supply tion of their said to the extent reaching their land. That all lands of the parties plaintiff irrigation require are arid lands and produce crops value, produce and with produce large agricultural will crops, and valuable irrigated Creek, said land can be from said Silver water, pres that one inch of measured under six-inch sure, per necessary irrigate acre of said land to said agricultural crops, produce land and cause the same to during May, July each of the months of June and year. year each Porter That in the 1895 the S. A. D. defendant constructed, wrong wrongfully has ever since maintains, fully maintained and still and threatens continue, gate dam and head in the channel of said Creek, plaintiffs, Silver the lands of above or near the E. S. corner of the S. S. W. of section W. Y\ S., range township E., County, in Lake That growing gate during said and head dam season agricultural crops all the diverts water of Silver Creek

332 channel, is carried off from its natural from said and the same point easterly and of diversion in an direction running entirely prevented of onto lands from down thereby plaintiffs de parties plaintiff, are and irrigating purposes, prived of use of said water for plaintiffs' rea and son of the said lands are rendered worthless wrongful of defend diversion said aforesaid, Porter, D. it is ant A. proper as and that now S. year have of said creek season of the the water plaintiffs’ lands, grow grasses hay, and flow crops, prevented and unless the said diversion is other by temporary restraining court, plaintiffs a order of great irreparable in a total will sustain loss crops. Occidental Land failure of That the defendant & foreign private corporation, duly Improvement organized and respectively, a Co. is existing. Isa M. Corum That defendants minors, aged years, 13 and 10 D. are Jewell Corum ap guardian has and that no ever been acting pointed That all the defendants or is for them. rights have, have, claim to some or interests Creek, or ex but that the exact nature waters tent of said Silver rights are claims of the defendants any, unknown, and each of interests, plaintiffs fendants, if of the de and the them, are inferior to the plain plaintiffs in the waters of said stream. Wherefore injunction against pray temporary A. tiffs a order of enjoining restraining Porter, D. defendant S. obstructing him the natural channel of said Silver from maintaining gate Creek, or head here and from dam diverting mentioned, manner inbefore the waters and and from channel, Creek from its natural said Silver thereby preventing from the waters or otherwise way running its ancient down said Silver Creek in prior volume, plaintiffs be decreed to have against in the waters said Silver Creek and interest defendants, them, and are entitled to and each of lands creek to their said the flow of the waters and ured under six-inch Hough, said follows, waters, meas extent said use say: pressure, C. is to Annie inches; Mary Kittredge, inches; Ma 640 J. inches; inches; Conley, Hayes, W. H. John rion inches; inches; Geyer, Hayes, Hayes, M. A. J. G. inches; McCall, H. 160 inches —of the waters and W. guardian appointed litem be Creek. That ad Silver Porter. Jan. 333 Corum, represent for Isa Corum and Jewell D. minors in this said suit; and that each of the defendants be required any rights to set forth and show or interests they may Creek, have in the waters of Silver and upon injunction the final of determination this suit said perpetual. plaintiffs be made their That and recover have herein, costs and disbursements such and have may appear other and further relief as to the court equitable.” by nearly defendants, Answers were then filed all the substantially as follows: Porter, specifically denying prin-

S. A. D. after cipal complaint, averments of the as an affirmative defense, substance, avers: That the cause of suit accrue, defendants, did not as to of the within years (10) ten from the commencement thereof. That 7, 1889, May all times since has he been and is the simple 11, owner in fee E. of S. section town- 14 ship S., range E., M., containing acres; 28 14 W. 160 11, also the S. S. W. of section in said town- V2 14 ship range containing aforesaid, acres; and 80 also the Y¿ 11, township S. of the N. E. °f section said and 14 range aforesaid, containing acres, County, 80 in Lake Ore- gon. agricultural That all these lands were valuable for purposes, June, 1880, and since the month of been have used, possessed, cultivated, occupied, improved by and defendant, annually large which from he has harvested crops, through and valuable etc. That the lands Creek, stream, Silver natural flows in well-defined channels, arid, crops produce banks and are and will not irrigation. 1881, March, without That in the month of upon point defendant Porter entered the stream at a center, about the on the south line of the south side of V4, 11, township the S. of the S. W. W. section S., range E., M., sec- W. where the creek crosses the 14, placed tion 11 and and line between sections built and leading therefrom, a dam therein and constructed ditch upon the south side of the of section S. S. W. *4 on E. E. and to the S. of the N. S. 1/2 Hough range, by section, township in said and means said appropriated, prior appro-

which he and diverted conducting priator, water, 100 inches of the same to and irrigation and and lands described domestic purposes. March, That at all times since stock injunction herein, con- until the service of the defendant tinuously exclusively uninterruptedly, with and knowledge world, all, to the whole dur- adverse ing ap- year, season each diverted and through lands, propriated upon his used dam, the and 100 inches of means of the said ditch and a more convenient of That for waters Silver Creek. April, irrigation land, the of proper in month of his point changed point about of to a 1895, he the diversion gate, and constructed yards the and head below dam leading of the to the center the S. of thence on a ditch % of 11, to the west side thence on of section and S. W. connecting 11, the it with said the E. of section S. *4 irrigated his ditch, he from which former thereafter to, premises. of diversions alluded time the That the bordering upon the stream below defend- all lands the up lands, public premises and so continued ant’s were named. time the of his ditches to the construction year 1870, has and is the the been That ever since Sil-, general people and about custom of in and vicinity appro- territory thereof ver and Creek use, gates priate, dams head divert and means of and ditches, Creek, cus- the waters of and such and Silver general recognized, tom is and well used and followed thereof, people locality territory and and open public and is an stream therefor. Silver Creek was during predecessors he and his in interest herein “That past, period years more next last and' over and notoriously, peaceably, adversely, uninterrupt- openly, right exclusively, continuously, edly, a under claim of all, thereto, knowledge everybody, with notice and and adversely world, appro- and whole diverted and Jan. inches,

priated used, aforesaid, 100 and measured pressure, Creek, under six-inch the waters of Silver said lands of his beneficial and purpose, appro- useful and and and such diversion priation quantity and use of said aforesaid water of necessary proper said stream is and was and therefor during plaintiffs, all of said time.” That each of the specifically separately' naming them, and no has interest right in common with each other the waters of Sil- Hough’s plaintiff “That ver Creek. Annie C. hus- band, Hough, plaintiff’s knowledge, ap- Wm. with said proval, acquiescence connivance, together and and with (cid:127)plaintiff McCall, Small, H. and W. defendant H. Geo. during year 1889, year 1900, up April and concert, connive, conspire did and combine to cheat and defraud the defendant A.S. D. Porter out Creek, of his in and to the waters Silver and day April, 1900, up that since 15th and present time, parties, conspirators, the said have and contriving unlawfully conniving, conspiring, still are combining unlawfully, deceitfully wickedly, deprive this defendant of the waters Silver Creek to lawfully legally entitled, just which he is and his lawful thereto and therein. That said con- among spiracy, things, part other consisted in and as a conspiracy, plaintiff Hough of that the said was to com- suit, mence this which was the direct result of such con- aforesaid, spiracy Small, and said defendant H. Geo. conspiracy part under and virtue of said and as thereof, above, to and was did turn the water and off they, conspirators others, testify and would all and it, claim that A. D. S. Porter did and caused the diversion alleged; help, of the waters and said and McCall-was they, conspirators, if the said could unlawful such deprive means the said defendant A. D. of the S. Porter Creek, water of Silver said Small was then to turn the Hough get waters down the creek so would -which water Hough to, then and Small they and were not entitled the said McCall water to which let have were to McCall to, thereby dry up defendant’s this and not entitled country, which out of the this defendant lands and drive repeatedly so to conspirators threatened have the said conspirators al- party above named are That if the do. way, it ruin the defendant’s lands will lowed their dire Wherefore, defend- this defendant. and his home and (1) plaintiffs’ judgment That and decree: ant demands go un- dismissed, hence and that defendant suit be said injunction harmed; (2) preliminary heretofore dissolved; filing be of answer issued herein relief, general such other and further (3) and for for equitable seem meet and further relief as other or general cases; (4) and for relief and as is usual in such of suit.” and for costs and disbursements substance, answers, to the same effect P. Jones W. Porter, except Á. D. out in the answer of S. as set acquiring "title description lands and date of inception thereto, character and date of acquir- right. description date the lands and The N. ing The E. of the thereto is as follows: W. title y2 range S., 31, township 3 of section lots acres; also, E. E., M., of the S. 155.42 S. 15 W. y2 and lots 3 and of section 1/4, the S. E. W. S. % M., range E., S., 169.15 acres. 31, township W. Creek, alleged riparian to Silver lands are to be The settlement on attached which defendant’s 22, 1892, prayer described, October lands suit, P. Jones that defendant W. the dismissal adjudged use of the waters a reasonable to have an inch Creek, an extent of five fourteenths Silver costs, etc., and pressure, per with acre under six-inch general relief. guardian, Porter, by his and John C. P. Chrisman G. complaint, on Porter, to the amended demurred Jas. C. to con- ground sufficient it did not state facts Jan. against

stitute a cause of suit either of the defendants named, uncertain, and for the further it reason is in that cannot be ascertained therefrom where or plaintiff Hough what plaintiff Conley, means the them, appropriated either of diverted or waters Creek, capacity Silver or the size or the of the ditch or ditches, or the location thereof. The demurrer was over- ruled. by them, which, An answer was filed after the specific denials, usual avers: That the cause of suit did years not accrue within ten before the commencement Porter, thereof. That July 9, 1884, John C. since has been and is the owner of the S. of the N. W. of sec- % 1/4 24, tion 23, and the N. E. township S., section 1/4 range E., M., containing land, W. 320 acres of all of agricultural, arable, etc., is and which he has cul- tivated all July, times since 1884. That P. G. Chris- owner, rnan now grantors is the and he and his have been at all times the owners since of the W. of the % S. E. and the E.S. 1/4, the S. W. and all that 1/4 1/4 part of the N. E. except upon S. W. the tract 1/4, which the town situated, Silver Lake is section township S., range E., M., containing W. about 140 land, acres of agricultural, of which requiring irri- gation, etc. That all of the lands of the defendants de- arid, during scribed are June, May, the months of July, August, September year, and October of each re- quire irrigation produce crops in order to That thereon. flowing Silver Creek is a natural stream of water through defendants’ lands in well-defined banks and year 1885, channels. That defendants John C. Chrisman, point lands, Porter and P. G. at a above their ditches, appro- means of dams and diverted and priated 218 inches of water therefrom to and belonging them, lands described as for the thereof and for domestic uses. That their use of the named, water has been continuous since the date and in general which, accordance with a custom ever since Hough v. Porter. 338 year 1870, among people has been and is in force Creek, and around' Silver which it under was usual to divert, appropriate, water, by and use the means of dams, gates ditches, head and etc. That none of the plaintiffs have interest in common with each other they the waters of “That Silver Creek. and their pre- during period decessors in herein interest of over years past, openly, notoriously, 17 and last and more next peaceably, adversely, uninterruptedly, exclusively, con- tinuously, right thereto, under a claim of with notice and knowledge all, everybody, adversely and and world, used, appropriated whole diverted and and aforesaid, inches, prés- 218 measured under a six-inch sure, Creek, of the waters of Silver for the of lands, purpose, their said and for a beneficial and useful appropriation and that such diversion and and use as quantity aforesaid of said of of said stream is and necessary proper during therefor all of said and. judgment time. Wherefore defendants demand and de- (1) plaintiffs’ dismissed, cree: That said be suit and that go hence.unharmed; (2) defendants that said defendants adjudged divert, appropriate have and inches, pressure, use measured a six-inch under Creek, through the waters of Silver and means answer; (3) gen- dam and ditches described in this for relief, eral and for such and other further or other or relief equitable further seem and meet and as is general cases; (4) relief, usual in such and and costs and disbursements of suit.”

George answer, Small, specific H. after the usual alleges: denials for affirmative defenses That for more years prior than ten to the commencement of the suit he y% possession has and been owner and in of the E. y¿ 9, 10, of section S. the N. W. of section %, W. the N. N. W. of the S. W. i/2 % % % and the N. E. S. W. and the S: W. % N. all except W. section section the S. W. 1/4 Jan. %, % of the N. the N. of the N. E. of section W. % 16, and the E. the E. of' the N. N. W. % % % township S., range E.,

section M. W. arid, requiring irrigation, That the lands described were natural water flow- Silver Creek is a stream of ing through the and chan- same in well-defined banks years prior nels. “That more than 10 to the commence- suit, the lands said ment of this and while all of Silver were owned the United 'States or the Creek Oregon, appropriated State of this defendant from the Oregon said lands of the United States and the State of away and carried diverted from said Silver (com- Creek 800 inches of the waters of said stream pres- puted by under a six-inch miner’s measurement sure), by ditches, means the of dams and and carried during upon lands, same to and said and all of said irrigating lands, time has used all of said water in said used, occupied possessed and has so and said 800 inches open, notorious, conspicuous of water in an and contin- during time, claiming manner, uous all of to own said against world, the same as and that all of said the necessary irrigation is and for the successful grow crops of said lands so as to cause and mature diversion, appropriation thereon. That the of use and by defendant, aforesaid, made said water was' long prior use, any any appropriation or of diversion by any plain- of the waters of said stream either or of the long any ownership defendants, prior tiffs or and occupation any upon the lands said stream of of plaintiffs their defendants or either or grantors. prays de- the defendant Wherefore the absolute owner creed herein that this defendant is - inches, under a six-inch miner’s measurement of 800 Creek; that pressure, of the waters of said Silver judgment and disburse- his costs have defendant herein; relief other and further ments and for such just equitable.” to the court seem and Portee. 340 Lane, specific after the usual B. F. Lane and Jennie denials, of That the cause of suit in favor of each aver: plaintiffs years ten did not accrue within before of this suit. B. F. Lane and commencement That Jennie owner, Lane, wife, F. and and B. Lane is the husband March, 1890, and has E. sec- been since N. of 14 containing township S., E., range M., tion 28 15 W. acres; and, also, the E. and lots and S., range E., township N. 15 W. W. of section M., containing agricultural land, requir- 159.96 acres of ing irrigation productive. and to make it That from March, 1890, possessed, cultivated, after defendant has during occupied, improved lands, said used all of large annually all the time has since harvested therefrom irrigation crops, etc. valuable That the season in inclusive, October, vicinity April land is from during necessary produc- which time premises. are tiveness of said That the lands described Bunyard Creek, upon situated Branch Silver they riparian re- are owners. That the branch through to, having flowed ferred in well-defined channels premises described, immemorial, from time flow, seepage percolation reason of the natural Bunyard through lands, they Branch its are irri- gated, moistened, valuable, made fertile and and defend- ants are to a entitled reasonable use of the waters said riparian stream reason ownership of their described, irriga- lands and need the waters thereof for inch, tion and “stock water.” That four fifteenths of an pressure, per measured necessary under six-inch irrigation; being acre for such the same a reasonable necessary amount plain- thereof. That each of the tiffs have no interest in common with the other subject-matter of the suit. A decree is demanded: (1) dismissed; That (2) the suit be that defendants adjudged a reasonable use of the waters of Silver Creek per to an extent of four fifteenths of an inch of water . Jan. 1909] acre; general relief, (3) be deemed for such as equitable, etc. Egli, denials and

Lucinda after the usual averments requires that in reference to the character of the land alleges: years irrigation, etc., “That for more than ten prior to the commencement of this suit defendant and her grantors possession have been the owners and in following described real estate: The S. of section W. *4 28, and the E. of the S. E. of section % 1/4 y4„ of the N. S. W. the N. W. S. W. i/2 1/4 % and the N. W. of the N. of section all W. *4 1/4 range township S., E., M. That more than ten W. years prior suit, to the commencement this all while the lands above all defendant and the lands claimed plaintiffs government belonging were lands or Oregon, appropriated State of the defendant from Oregon, said lands of the United States and State of stream, away and diverted and carried from said about inches, measurement, pres- miner’s under six-inch sure, of the waters of said stream means of dams and ditches, and carried the same to and defendant’s lands, said and there used the same and all thereof purposes irrigation, all and has continued so use during openly, notoriously, continuously of said claiming against time, all of said so to do one, interruption protest any the world without from necessary and all the said water and is for said was purposes. That said diversion and use of said water prior diversion or use of defendant made by any plaintiffs the waters of said Silver Creek grantors predecessors inter- or defendants or their prays that it be decreed est. Wherefore the defendant of 200 herein defendant is the absolute owner Creek, measure- inches of water of said Silver miner’s ment, pressure; this defendant under a six-inch costs; judgment fur- her and for such other and have just right.” court seems ther relief as to the Hough v. Porter. . Porter, by guardian, John Porter, C. his Jas. C. after overruling complaint, answered, of a demurrer substance, Porter, the same as A. D. S. and for an alleges affirmative 6, 1900, defense that on December County, Oregon, adjudged Lake John Porter was C. in- sane, appointed and guardian; Jas. Porter C. his that owner, grantors John C. Porter is and he and his April, 1873, since have owned the N. i/¿ of section township range S., E., M., containing 14 W. 320 acres land; April, that at all times since he and his grantors cultivated, occupied improved have and the lands described, large annually harvesting crops therefrom irrigation, means without which the lands would be worthless; riparian that the lands described are Bunyard thereof; Silver Creek and Branch Bun- yard Branch, unobstructed, when its nat- flows in through naturally ural channel his and irri- land gates same, has, and from time immemorial channels, through well-defined and banks flowed premises flow, seepage and reason of such natural irrigated greater percolation, portion and has described; that lands defendant uses and needs waters water, stream stock and four said for and per acre, under fifteenths of an inch of water measured pressure, necessary a six-inch reasonable for the lands; times, except irrigation of at all when the said leading interrupted by gates dams and head and ditches placed and his therefrom and therein defendant grantors premises, purpose irrigation upon branches, the waters of Creek and in their natural Silver channels, premises described, by flow reason gates seepage percolation dams, head leading irrigate, make fer- ditches therefrom moisten and. land, large portion of defendant’s tile and valuable irrigation, necessary extent which are acre, per that none of an inch of four-fifteenths of with plaintiffs in common interest or have Jan. 1909] (1) That the suit be A is demanded: other. decree

each (2)that adjudged rea- dismissed; to have a be defendant main branch of use of waters of the Silver sonable the Creek, four of an inch of water to the extent of fifteenths acre; adjudged (3) per reasonable that defendant be amount; Bunyard the Branch in the same use of waters of general relief, equitable, (4) deemed such be adjudged etc.; (5) that it be and decreed that Silver alleged, and is the divides as forms what known as Creek Bunyard Branch, Bunyard that Main Branch and and at Branch has flowed flows third times and now one Creek, permitted of the waters of Silver and that it be proportion interruption the continue in same without proportions diminution the averred. Chrisman, denials,

F. M. after usual as an affirma-. defense, tive That the each avers: cause of suit favor of plaintiffs years accrue ten of did not within before thereof; the commencement that all times Feb- since ruary 21, 1890, of defendant has and is the been owner S., range township E. 14 the S. of section 28 M., E., containing land, W. 160 acres all of which are of agricultural irrigation required in character and to make of, productive, them and are situated on «banks to, riparian Bunyard Creek, are dur- Branch of Silver ing April October, inclusive, the months are of from necessary described; of that the lands plaintiffs any right in com- none of have interest Creek, mon with each in or to waters of Silver other A is that be or its branches. decree the suit demanded dismissed, adjudged to have reason- defendant be Creek, to an able use waters Silver extent general per acre, and for relief. four fifteenths of an inch denials, complains Mary Brown, C. after usual years cause of within ten suit did not accrue before thereof; No- all times the commencement that at since 21, 1892, defendant has and is the owner vember been S., range township E. the S. of section 1/1. v. Porter. which, M., E., containing land, W. acres all of agricultural land, character, valuable requir- arid in ing irrigation April year from to October of each to make productive, upon, the lands which lands are situated riparian to, Creek; plaintiffs Silver and that none of the have interest or in common with each other to stream; prays decree, the waters of said for a dismissed, the effect that suit that defendant be awarded, stream, aas reasonable use waters per acre, gen- five fourteenths an inch of water and for relief. eral Jackson, denials,' says:

C. C. after the usual That the years cause of suit did not accrue within ten before its commencement; year that he at all times since the was, has been and is the owner of the N. E. of section 14 S., range E., 12, township M., containing 28 14 W. 160- land, agricultural land, of which acres all of is valuable irrigation during requiring April the months of to Octo- year productive; ber each to make of them upon, riparian to, Conley situated and of Branch Silver Creek, seepage percolation the and from which serves irrigate, moisten and make fertile and the valuable greater portion named, the lands and reason of which defendant is entitled reasonable use of the irrigation pur- waters of the stream for and domestic poses, per acre; to the extent of four fifteenths an inch plaintiffs any right and that none have interest or in common with each other to the waters of Silver Creek or its branches. A decree is for asked dismissal suit, and that be awarded defendant four fifteenths general per acre, an inch of water and relief. for McKune, answer, denials, E. after C. usual- alleges: That the cause of suit did accrue within ten years commencement; before its that at all times since February 28, 1900, defendant has been the owner and is 31, S., range township N. of the E. of section 14 1/4 E., M., containing acres, agri- all W. of which are Portee. Jan. 1909] character, requiring lands, and cultural arid upon, and productive, are situated and to make them irrigates naturally Creek, riparian to, which stream Silver nat- named, such portions reason of of the lands greater portion flow, seepage percolation, ural valuable, for irrigated made fertile thereof are use of a reasonable is entitled to defendant ownership, riparian of his waters of the stream reason per water of an inch of extent of fourteenths five acre; plaintiffs interest or have that none of respect respect to each other in common with suit; subject-matter'of a decree and asks for dismissed, and defendant the suit be effect acre, per an inch of awarded five fourteenths of general and for relief. answer, Co., Improvement Land

The Occidental & denials, alleges: That the cause of suit after the usual years plaintiffs be- did not accrue within ten favor corporation, fore its commencement. That defendant is a year and its times 1874 defendant since grantors of certain lands in have been and are the owners Oregon, particularly County, described as follows: Lake Vi, tract, 1, N. Vs wit: of the S. First No. The S. Vs 16; Vi, and the S. 1/9, N. N. of the S. of section Vi Vi Vi, 21; of the N. W. of section the W. Vi of the S. W. V4 V4, N. N. E. the W. Vi and the S. section Vi Vi, of section E. and the N. E. of the S. W. % the S. E., M., containing range S., township 20—all in W. tract, The 1,320 to wit: And the second No. acres. township 2, section in N. the N. of the S. Vi and Vi Vi M.; Vi, range S~, 14 E~ of the S. 28 W. S. Vi Vi, N. E. Vi E. of the N. E. the S. E. and the Vi Vi 34; 35; E. of section E. of the S. Vi of section S. Vi Vi, township E. section 26—all and the S. S. Vi M., containing land. S., range E., 14 880 acres W. 27 character, agricultural described are That all the lands irrigation productive, since them and requiring to make 346 year they cultivated, occupied, have been used improved, crops

and annually therefrom, and harvested require irrigation April from year to October of each productive. to make them That the lands are situated upon, riparian to, year Silver Creek. That corporation’s grantors 1875 the defendant diverted and .appropriated, appropriated and at all times since have irrigation and used of the waters of Silver Creek portion of the 1, of lands described in tract No. naturally irrigated by stream, inches, said under pressure, by six-inch ditches, by means of dams and crops thereon, use of which produced valuable have been and at appropriation to, the time of the referred all the lands public belonging on Silver Creek were lands government of the United States and State Oregon. plaintiffs any That none of the have interest right in common to the waters of Silver with all Creek plaintiffs. A other decree is demanded to dismissed; the effect that the suit be cor- defendant poration adjudged be a reasonable use of the waters of eight Silver Creek to the extent of inch fourteenths of an per possessed it; of water acre on all the lands to the use of the water extent named superior any right be decreed or claim defendants them, general or either of and for such relief just equitable, deemed etc. Henderson, denials, K. alleges:

E. after the usual That years prior for more than ten to the commencement of pos- the suit defendant has been and is the owner and 1, E., township S., range session of all of section except 7, 1/4, S. of the S. W. W. of sections 6 and % 8, 1, 2, 3, and the W. of section and lots in sec- 8 and % S., range township E., M., tion all of which W. grass character, lands are meadow and lands and arid in requiring productive, to make them and are upon, riparian to, Creek, requiring situated Silver per acre, measurement, one inch of water miner’s for the Hough 347 v. Porter. Jan. 1909] irrigation thereof, proper which a decree is demanded for 2,350 to the use of that be decreed and entitled defendant the use waters of Silver for miners’ inches of the Creek described, general relief. and for of the lands denials, Durand, answer, usual ad- after the for Geo. alleged A. D. Porter as mits “acts of the defendant S. thereof,” that complaint, and avers and the effect years prior of commencement for than ten more grantors the own- have been this suit defendant and his of ers, possession, of the S. E. of S. W. and in 1/4 % 18, N. of the N. and the S. W. section and the W. 1/4, 1/4 1/4 and the S. of of the N. and the S. W. W. 1/4 14, 1/4 E. and the E. of S. E. of section and the N. 1/4 1/4 range E., township S., N. of section W. 1/4 character, M., agricultural W. all of which lands are etc., irrigation productive, requiring to make them Creek; upon, to, riparian are situated Silver years prior the commencement of more than ten bordering upon suit, were all the stream when the lands property of and of the State of United States Oregon, appropriated from Silver defendant and diverted Creek, premises, 250 inches for the water, that amount so to use and has continued interrup- continuously, openly, notoriously without world; against tion, claiming all the to do so as irrigation pur- necessary for the use thereof (cid:127) any poses, prior or use diversion and was made plaintiffs or by any of the of the stream of the waters grantors predecessors interest. their defendants or is the absolute the effect that he a decree to And demands Creek, and waters of Silver 250 inches of the owner of general relief. denials, answer, avers Lutz, the usual E. D. after 1/4, E. and the the N. the E. the owner of that he is 1/4 N. E. of the W. 1/4, E. and the the N. W. 1/4 1/4 1/4 M., S., range E., 15, township 14 W. section M., S., range E., 10, township 14 W. E. of section N. 1/4 County, Oregon, containing land, all in Lake 400 acres of 1890; and has been such owner at all times since that the character, requiring irrigation lands arid described are productive, upon, to make them and are situated and to, riparian Creek; grantors, Silver that defendant his and by diverted, ditches, means of dams and have used and appropriated large quantities water Silver of from Creek irrigation premises the of described more for than years fifteen next before the of commencement this suit. adjudged And demands a decree to the effect that he to the to a have take from the stream sufficient quantity irrigation land, of water for of his and for general relief. Buick, Buick, Brie,

Walter C. Corinna Lulu La Corum Corum, minor, by Conn, guardian litem, Isa M. a L. F. ad guardian Corum, minor, by Conn, Jewell D. L. F. ad litem, Small, denials, and J. M. the usual after in sub- the-day of-, aver: stance That at times since grantors 1884, C. Buick and his have been the Walter possession possession and owners of entitled and S., range township of the S. W. of section % E., M., dry lands, naturally and, which are and arid W. unproductive. irrigation, without artificial are That the lands, viz., remainder of the N. of the S. the W. W. 44> VL and N. N. E. of of of the the S. said W. % % % lands, section are meadow but of such character necessary per of one acre is for the flow inch of irrigation irrigate proper thereof, requiring 160 inches May, premises during and the months of June entire purposes July, is a use which amount reasonable for years prior That more to the com- named. than ten suit, all the lands mencement while on Silver Creek States and its various branches were owned the United Oregon, Buick and his and State of defendant ditches, etc., grantors, by dams, diverted and means appropriated 250 inches waters from Creek Silver during lands, all of and of the stream to and said Jan. 1909] used, possessed occupied and have so

the time mentioned notorious, conspicuous open, 250 inches thereof in an against claiming manner, own the same continuous necessary world, the suc- which was and is all of described, property and all cessful diversion, appropriation by use and defendant grantors prior any use, his were made diversion plain- any appropriation either or thereof any ownership defendants, prior tiffs or occupancy any either or lands on the stream grant- plaintiffs and their or defendants Buick, ors, except Lulu Corum the defendants Corinna Corum, their Brie, D. M. and Jewell La Isa Corum grant- M. grantors, defendant J. Small and the grantors hav- ors; they them and their and each of conjunction diverted, and simul- ing appropriated and grantors, taneously certain and his with this defendant all the That such use of of said stream. of the.waters grantors by Buick and his defendant Walter C. all uninterrupted and adverse to and exclusive has been 1884 all said time. That at all times since the world grantors Buick have been defendant and her Corinna owners, possession, possession and in and entitled to the range 14, township S., E. section of the S. i/l. Y¿ Y2 which, except E., M., N. all of the N. of the W. 14, naturally meadow E. of said section are the S. Yi lands, unproductive and but of such character as to be unprofitable irrigation, men- and all the lands without to, Creek, upon, riparian Silver tioned are situated and require per inch waters thereof for and one acre of the aggre- irrigation, making necessary, proper their during May, gate, and 160 inches the months of June irrigation. July year proper That of each for their years prior ten to the commencement of the more than suit, all and its and while the lands on Silver Creek public branches were lands of the United States various- Oregon, property defendant or of the State of Corinna grantors Buick and appropriated her diverted and from point the stream at premises, by above their means of dams, ditches, etc., upon property described, and during and grantors all of the time mentioned she and her irrigation have used all of the waters in the thereof and used, occupied possessed have so and 250 inches of water open, notorious, conspicuous in an and continuous man- ner, during claiming period, all of said and own against world, same as necessary and all is growing the successful of said lands to the and maturing crops thereon. That all of the and diversion appropriation prior any ivas to that of the diversion of any of the waters of Silver Creek either or of the plaintiffs defendants, long prior ownership any or and occupancy any other lands the stream either grantors, excepting the defendants or their Buick, Corum, the defendants C. Isa M. Lulu Walter Brie, La Small, Corum Jewell D. and J. M. Corum grantors, they grantors their and each of have their appropriated diverted, conjunction and simultane- ously grantors, with this defendant and her certain of stream, the waters of said and such all use of the waters grantors defendant Corinna Buick and her has been uninterrupted, exclusive and adverse to the world during Corum, all of said time. That Isa M. Jewell D. section N. E. Corum and Lulu joint % 24, township of section owners of the Corum and the N. S., range La W. Brie are tenants in common V2, and the N. 1/2 E., M., of the N. E. W. (cid:127) 1/4 they grantors of-, the-day and their at all times since premises. have been owners of said This is by followed similar averments to those contained in the Buick, except answer of Walter Buick and that Corinna they aggregate inches, claim 480 measure- miner’s ment, of the waters of the stream for the of the premises, during May, July, the months of June and and years’ possession ten adverse to the use 250 inches of 351 Jan. stream, and their diversion and the waters of the that any plain- prior appropriation and is that of the use Buick, defendants, except or Buick tiffs Walter Corinna appropria- Small, and J. M. whom it is averred as to conjunction tion and diversion was made in and simul- taneously. grantors That M. Small have J. and been possession times the owners and in at all since the y% %, -day 1884, of-, of the the N. E. and S. 18, i/[, E. 14, the S. and of the N. E. section the N. % % township and S. E. of the E.N. of section % y¡¡ S., range E., M., 14 28 and the S. of section W. W. 19, township S., range and N. section W. of% E., M., agricultural W. of which lands are char- upon acter and situated the channels of Silver Creek branches, they riparian its as require to which are per pressure inch one of water acre under six-inch proper irrigation therof, during May, the months July year. June of each This is followed an allegation years’ possession of ten adverse to the extent stream; use, inches of waters of said appropriation prior and diversion thereof is in time and superior plaintiffs defendants, long to the or prior any ownership occupancy any or of the lands plaintiffs said stream either or de- grantors, except fendants Buick, their Walter C. Buick, Corum, Corinna Isa M. Lulu La Brie and Corum grantors, appropriation Jewell D. Corum and their whose alleged conjunction to have been made in and simul- taneous with that of J. M. A Small. decree is demanded they each of the defendants effect prior right awarded a and interest in the waters of Silver against plaintiffs Creek and all defendants of the other each of them to the flow of the waters of Silver Creek lands, Buick, to their as follows: To Corinna inches; Corum, Brie, Isa M. Lulu La Jewell D. Corum Corum, appropriators, prior as tenants in common and as inches; Small, prior appropriator, inches; J. M. v. Porter.

352 Buick, riparian proprietor, inches; C. as Walter 160 de- Buick, riparian proprietor, fendant Corinna as inches; Corum, defendants Isa M. Lulu La Corum Brie Corum, and Jewell D. as tenants in common as ri- and parian proprietors, inches; Small, defendant J. M. riparian proprietor, inches, of the waters Silver Creek its branches. parties named,

To each of the answers of the several reply, plaintiffs filed between themselves defend- proceeded ants as follows: Small,

Geo. H. for answer to the matter con- affirmative Porter, tained the answer of A. D. S. admits that year S. A. D. Porter constructed a in the dam point claimed, by channel of at Silver Creek upon conducted water he from the stream S. 11, the S. but con- W. section denies that it was % any structed for a more convenient or use of him, appropriated by which had been theretofore or that ii; change point constituted of diversion which previously made, had been denies he at times year 1881, any except 1895, since the or time since used, adversely appropriated otherwise, or or diverted through any ditches, his lands or otherwise said or of, other number inches of the waters of the stream, specifically and denies affirmative alle- other gations answer, of the the same demands affirmative “first'original relief as in his answer.” Egli, E. K. Henderson and Lucinda to the answer Porter affirmative averments in answers of S. A. D. complaint, effect, plead, and ask the amended same relief as in the answer thereto of Geo. H. Small. Egli Small, Durand, H. and E. K.

Geo. Lucinda Geo. Henderson, to the affirmative averments of for answer deny Porter, the answer P. and Jno. C. G. Chrisman therein. affirmative averments Porter, response matter A. D. S. affirmative allegations, Small, all the answer of H. denies Geo. Hough Jan. 1909]

except that at the time of the commencement to admit original May, suit in Small had diverted from thereof, all the the main channels of Silver Creek waters diverting conveying the same from de- and was then lands, of the commencement of fendant’s and at the time thereto, suit, prior month and for more than one entirely depriving all the Small had been defendant of during stream, period and that of five waters of years immediately prior thereto, H. Small had Geo. large quantities of water from the various times diverted by ditches, stream means of dams and but denies uninterrupted, any continuous, such has or diversion been appropriation any that at the time of diversion bordering by waters of Silver him all the lands Creek public property the stream were lands or the Oregon, any appropriation State of or that or diversion by prior occupation possession defendant was occupied by along Creek, of the lands defendant Silver nothing prays H. Geo. Small take reason separate allegations of his answer. Jones, Chrisman, Porter, by P. P. W. John G. C. guardian Porter, Lane, Jas. B. F. C. Lane and Jennie Chrisman, Mary Brown, Jackson, F. M. E. C. C. C. C. McKune, Improvement Occidental Land & and E. D. Co. Lutz, response to the affirmative averments Small, belief, spe- answer of H. Geo. on information and cifically denied them. Small, Egli,

Geo. H. Lucinda E. K. Henderson and Geo. Durand answer the affirmative averments in the answer Lane, and, thereof, B. F. Lane and Jennie after denial allege designated ‘Bunyard “that the stream or channel Branch’ is an artificial channel and was first constructed years ago, very about nine when it was a small ditch con- veying water, date, by a small amount of and since said through artificial means and the flow of water the said channel, greatly enlarged it has become so that the said ‘Bunyard Branch’ now carries about five times as much

51 Ob.— pray water as it did when it was first that it built/’ be decreed that B. F. Lane and in- Jennie Lane have no stream, pray terest in the waters of said for the relief demanded in their first answer.

B. F. Lane and Jennie Lane move to strike out separate and several answers of H. defendants Small Geó. Egli and Lucinda to their answer to the amended com- plaint, practice as unauthorized law or the rules of equity, sham, irrelevant, and as frivolous and and filed separate answer, their and several demurrers to the same grounds: “(1) on the That such ‘does not state facts any against sufficient to constitute cause of suit the de- Lane’; (2) fendants B. F. Lane and Jennie that it ‘does not state facts sufficient to constitute a defense to the affirmative matter set out the answer B. of said F. Lane Lane’; (3) and Jennie that it ‘does not state facts suffi- cient to constitute cause of counterclaim or owner’s complaint against the defendants B. F. Lane and Jennie Lane’; (4) appears upon that ‘it now the face of the complaint, the answer of the defendants B. F. Lane, Lane and 'Jennie and the answer defend- * * separate ant and the further and answer of B. F. Lane, misjoinder Lane and Jennie there is a parties defendant, plaintiff, and that the defendant against these defendants as well as a in this suit.’ ^[*] * misjoinder cannot obtain relief ” The motions parties and demurrers were overruled. Porter, Chrisman, Jackson, A. D.

S. F. M. C. C. B. F. Lane, Porter, by guardian Lane and Jennie Jno. C. his Porter, Mary Brown, McKune, Jas. C. C. C. E. D. E. Lutz, Jones, Improvement P. Co., W. Occidental Land & corporation, Chrisman, responding a and P. G. Egli, affirmative averments in the answer of Lucinda specifically portions denied the material thereof. Small, Durand, Egli H. Lucinda and E. K.

Geo. Geo. Henderson, response answer, spe- to John Porter’s C. cifically denied the material averments.

Jan. 1909] Small, Egli, Geo. H. Lucinda E. K. Henderson and specifically Durand Geo. denied the affirmative averments Chrisman, answer of F. M. which answer Chris- sham, man moved to strike out as frivolous and irrel- evant, demurring grounds also they on the did not state sufficient facts to constitute a cause of suit or coun- against him, showing terclaim misjoinder and as parties defendant, the court overruled. Small, H. Egli,

Geo. Lucinda E. K. Henderson and responded Durand Geo. to the affirmative averments in Mary Brown, the answer specifically denying C. portions thereof, material as to which motion a demurrer filed, by Chrisman, the same as F. M. and overruled by court, separate by answers were filed the same parties to the affirmative averments the answer of Jackson, specifically denying C. C. portions the material answer, of his demurred, to which Jackson de- murrer was parties overruled. The same answered and specifically denied the averments in the answer of E.C. McKune, unsuccessfully which was by attacked a motion and demurrer. Buick, Buick,

Walter C. Brie, Corinna Lulu Corum La guardian Isa M. Conn, Corum her ad litem L. F. Jewell guardian D. Conn, Corum her ad L. F. litem and J. M. separate Small filed answers, their and several and the Small, Durand, defendants H. Egli, Geo. Geo. Lucinda Henderson, E. K. Porter, S. A. D. B. F. Lane and Jennie Lane, Chrisman, P. guardian G. Jno. C. Porter Porter, Jas. Chrisman, C. F. M. Jones, Mary P. W. C. Brown, McKune, Jackson, C. E. C. C. Occidental Land Improvement Co., & corporation, jointly and E. D. Lutz answered, specifically denying averments, each of the putting in issue up new matter set in each of' Small, Egli, answers of defendants H. Geo. Lucinda Durand, E. K. Henderson and Geo. to the answer of the Improvement Co., specifically denying Occidental Land & each of its material averments. Porter, A. D. Chrisman,

S. F. M. Jackson, C. C. John guardian Porter C. Porter, Mary Jas. C. C. Brown, McKune, E. Lutz, C. E. Jones, D. P. W. Occi- Improvement dental Co., Land & corporation, Jno. C. Porter and P. specifically G. Chrisman denied the affirm- ative matter in the answer of defendant Durand. Geo. Small,

Defendants Geo. H. Egli, Lucinda E. K. Hen- derson and specifically Geo. Durand also denied the affirmative averments of the answer of E. D. Lutz. 20, 1902,

On October Durand, defendants Geo. H. Geo. Small, Egli, Lucinda Henderson, Chrisman, E. K. F. M. Jackson, C. C. B. F. Lane and Jennie Lane filed a written stipulation as to the intention plead- and effect of certain ings, as follows: hereby “Be remembered that it is stipulated agreed by counsel, and between A. S. Ham- mond, appearing George Durand, George for defendants Small, Egli H. Henderson; Lucinda and E. K. and coun- Spencer sel W. J. Baker, appearing Moore and & as coun- sel Chrisman, Jackson, defendants F. M. C. C. B. F. Lane and Jennie Lane: That each and all of the state- paragraphs ments and set out in each one and presented by answers filed or attorney said A. Ham- S. defendants, stating mond for each or either of said alleging to the effect that the stream or channel described ‘Bunyard as the Branch’ channel, is an artificial and was years ago, constructed about nine and to the effect that ‘Conley the so-called Branch’ is not a natural stream water, by cutting ditch, taken, but was caused shall be only denials, considered and treated and not as alle- gations calling reply.” of new matter for a denial or 24, 1904, judgment by

On October default for want of appearance answer or other was taken as to L. Heus- mand, Banner, Partin, Jr., Klippel, Morris John L. P. Egli, Henry Egli, Angeline Ward, West, Emil Martie Mary Small, Martin, Sherer, Small, M. Jas. J. M. Maude Hall, Buick, Smith, Smith, J. D. B. E. A. Har- C. J. J. C. McCarty. voluntary row and F. F. A taken nonsuit was Hough Jan. Porter. 357 Geyer, to A. Hayes C. Hayes. John and J. M. The testimony foregoing taken upon which, on the issues testimony with taken, first the cause was submitted to court, rendered, and a which, omitting decree formal parts, is as follows: hereby “It is ordered, adjudged, and decreed: That the hereby defendant S. A. D. Porter be and he is perpetually enjoined diverting from in manner interfering with the flow in said Silver of the Creek amount grants of water plaintiff which this decree to the Hough.

Annie C. plaintiff Hough That the said Annie C. is the owner simple following in fee lands, described to wit: y¿ y% The S. 2, the S. of section the N. of the % % N. E. and the N. E. N. W. section *4 14 the range S. township S., W. of the S. W. of section 28 *4 *4 E., M., 14 County, Or., containing W. in Lake 320 land, County, acres of Creek, Lake That Or. Silver County, Or., upon Lake said lands lands; flows to and said that riparian thereto; predecessor are that plaintiff interest of appropriated, Hough, year 1878, Annie C. Hough prede- and said Annie C. and her cessors in used, interest in said land have ever since Creek, inches of the water of Silver measured under six- pressure, inch and the same was and is a reasonable necessary water, irrigation use of said for the of said land, right and her superior to the use of said water is prior rights and the Lucinda to the stream, of all others in said save George as herein decreed to H. Small Egli. plaintiff Mary Kittredge That the J. is the owner in fee simple following lands, of the described wit: All of sec- 36, township S., range containing E., tion 640 acres land, County, Creek, in Lake Or. That Silver in Lake County, Or., lands; flows to and said said riparian thereto; Mary lands are the said J. Kit- tredge, riparian owner, as such is entitled to the use of Creek, 480 inches of the waters of said Silver measured aforesaid, reasonably necessary as a use of the water lands; plaintiff’s for the of her said said being subsequent to the use thereof and inferior to the right and Porter, George Small, of the defendants D. S. A. H. Hough plaintiffs Conley, Annie C. and Marion granted use to the extent in this decree of the said waters Creek, of said Silver measured in like manner. plaintiff That Conley Marion is the owner in fee simple following lands, described to wit: The W. 1/2 12, township of section S., range E., M., con- W. taining land, 320 acres of County, in Lake Or. That year 1880, plaintiff appropriated said ever has since used 250 Creek, inches of the waters of said Silver aforesaid; measured as such Conley, that said Marion as appropriator, is entitled to the use of 250 inches of the waters Creek, of said aforesaid, Silver measured as reasonably necessary as a use of the said water for the irrigation tiff’s lands, aforesaid; of his said plain- but that said right subsequent to the use is and inferior to the uses, granted by decree, extent plaintiff Lucinda of Hough, George Annie Small, C. defendants H. Egli, ment verted Porter, John C. Improve- the Occidental Land & Co.; that said water has been and should be di- through ‘Conley what is known-as the Ditch.’ plaintiff That W. H. is McCall the owner in fee simple following of the lands, described to wit: E. The of E. township S.,‘range E., section 28 14 V? 1/2 M., containing land, W. County, 160.04 acres of in Lake Creek, County, Or., Or. That Silver in Lake flows to and lands; said ripa- that 120 acres of said lands are (cid:127) thereto; rian rian McCall, ripa- that the said H.W. as such owner, is entitled to the use of 60 inches of Creek, aforesaid, waters of said Silver measured as reasonably necessary a irrigation and inferior to the extent -use of the said waters for the lands; said subsequent that said use is appropriations out, of the herein set granted by this decree. That the defendant S. A. D. Porter owner in fee simple following lands, of the described to wit: The E.S. i/4, %, the S. of the S. W. S. of the N. E. 1/2 % i/2 14 11, township S., range E., M., of section con- W. taining land, County, 320 acres of in Lake Or. That the defendant, .1883, year appropriated, said ever since in the 100 inches of the and has used, Creek, waters Silver aforesaid; Porter, measured as A. said S. D. appropriator, as such is entitled to the use of 100 inches Creek, of the waters of said Silver measured afore- said, reasonably necessary aas use of the said water irrigation aforesaid; said lands but that his. Hough Jan. Porter. right said subsequent defendant’s and use is and inferior plaintiffs Annie C. and Marion Conley Egli, George Small, defendants Lucinda H. Improvement Occidental Porter, Company Land & and J. C. granted by to the extent this decree. Egli That the defendant Lucinda is the owner in fee simple following lands, of the described to wit: The S. W. of section 28 and the E. Vi E. of the S. of section Vz Vi, 29, and the S. the N. and the N. Vz W. W. Vi, the S. W. and the N. W. Vi of the N. of section W. Vi township S., range E., M., containing 14 W. land, County, acres of year 1878, in Lake Or. That in the appropriated said defendant and diverted 200 inches of Creek, aforesaid, the waters of said Silver measured as same; and has ever since used the the said Lu- Egli, appropriator, cinda as such is entitled to the use of 200 ured as Creek, inches of the waters of said Silver meas-, aforesaid, reasonably necessary as a use of the aforesaid; said water for the of her said lands but that subsequent said defendant’s and use is rights, granted decree, inferior to the to the extent in this George Small, of defendants H. Occidental Land Im-& provement Company, and John C. George That the defendant H. Small is the owner in simple following lands, fee described to wit: The 9; E. 10; of section the S. V> and the N. W. of section Vi V? Vi, W. of N. W. and the W. of the S. W. i/2 V2 Vi, 11; of section the N. E. Vi of the S. W. S. W. 14 Vé, 11; 15, except- of the N. W. °f section all of section Vi ing Vi; S. W. the N. the N. E. Vi W. of the N. i/2 V<¿ 16; of section N. E. Vi Vi and the E. N. W. Vi range E., township S., 22—all section in 28 14 M., containing 1,960 land, County, acres of in Lake W. defendant, year 1878, appro- That the said in Or. priated and has ever since used 650 inches of the waters Creek, aforesaid; of said Silver measured as that said George Small, appropriator, H. as such is entitled to the Creek, use of 650 inches of the waters of said Silver aforesaid, reasonably necessary

measured as the said water for the as a use of irrigation of his said lands afore- said; appropriation prior that said was and rights parties of all of the other herein. That the defendant John Porter is C. the owner in fee following lands, simple of the described to wit: The N. Vz

360 14, township S., range section E., M., 28 14 con- W. taining 320 County, acres of land in Lake Or. That Creek, County, Silver Or., upon Lake flows to and lands; said riparian thereto; that said lands are that Porter, said John riparian owner, C. as such is entitled to the use of 100 inches of the waters of said Silver Creek, aforesaid, measured as reasonably necessary as a use irrigation of the said water for the land; of his said 75 waters, inches of the said aforesaid, measured as Bunyard diverted from the said Branch of said Silver Creek, remaining and the 25 inches from the main chan- Creek; nel of said Silver that said subsequent use is appropriation inferior to the Conley of Marion Hough, George H. Small and Annie C. to the extent granted in this decree. That the defendant E. K. Henderson is the owner in simple following fee of lands, of the described to wit: All 1, township S., range section E., excepting 28 14 the and the S. 14; W. of the S. % 7, W. all of sections 6 and 8, 1, 2, 3, 9, section lots 8 and section 17—all W..% township S., range in acres of E., M., 28 containing- 14 W. land, County, in Lake Creek, Or. That Silver County, Or., in Lake upon lands; flows to and the said riparian 640 acres of said land is to said Silver Creek; Henderson, riparian said E. K. as such owner, is entitled to the use of 170 inches of the waters Creék, of said aforesaid, Silver measured as as a reason- ably necessary use of the said water for the lands; of his said subsequent that said use is and in- ferior acquired by to all of the appropriation, granted the extent in this decree. That the defendant P. W. Jones is the owner in fee simple following lands, of the described to wit: The E. 1, 31, the N. 2 W. lots and 3 of section % V2 township S., range E., M., containing 15 W. 155.42 acres; also the S. of the E.S. E.S. % > township S. W. S., range and lots 3 of section E., containing land, 15 W. 169.15 acres of M.— County, Creek, County, Lake Or. That Silver in Lake Or., lands; flows to and the said that said lands thereto; riparian Jones, are that the said P. W. as such riparian owner; is entitled to the use inches of the Creek, aforesaid, waters of said Silver measured as aas reasonably necessary use of the said water for the irri- Jan. Portee. ^[361] gation lands; of his said but subsequent said use is rights acquired inferior to all of appropriation, granted the extent in this decree. Mary That the defendant is the C. Brown owner in fee simple following lands, of the described to wit: The E.S. 31, township range S., M., E., section 15 W. ]4 containing land, County, 160 acres of in Lake Or. That Creek, County, Or., upon Silver in Lake flows said lands; riparian thereto; that said is land that the said Mary Brown, riparian owner, C. as such is entitled to Creek, the use of 50 inches of the waters of said Silver aforesaid, reasonably measured as the necessary as a use irrigation lands; said water for the of her said that subsequent said rights use is and inferior to all of the acquired by appropriation, granted by to the extent this decree. That the defendant E.C. McKune is the in fee owner simple following lands, of the described to wit: E. The N. 31, township S., range M., E., section 14 W. ]4 containing land, County, 160 acres of in Lake Or. That Creek, County, Or., Silver in Lake upon flows said land; riparian thereto; that said land is that the said McCune, owner, riparian E. C. such is entitled Creek, use of 50 inches of the waters of said Silver meas- aforesaid, reasonably necessary ured as as a use of the irrigation lands; said water for the of her said that said subsequent rights use is by appropriation, acquired inferior of the granted to the extent in this decree. That the E. D. defendant Lutz is the owner in fee sim- ple following lands, of the described to wit: The N. E. 14 of section and the E. of the N. E. and the W. 14» E. the N. and the E. N. W. sec- 14> % 15, township S., range E., M., containing tion 400 acres of W. land, County, in Lake Or. That Silver Creek, County, Or., in Lake flows to said said land; E. D. riparian thereto; that said land is riparian Lutz, owner, as such is to the Creek, entitled use of 107 measured as inches the waters of said Silver aforesaid, reasonably necessary aas use of lands; for the the said water of his said subsequent is said use and inferior to each of the granted by acquired decree. appropriation, to the extent George That the defendant Durand the owner in fee following lands, simple described to wit: The E. S. ^[362] (cid:127) Hough v. Porter. Or. 18; of the of N. of the S. W. section the N. W. % 1/4 i/2 yé 14, and the and 1/4, the S. of the N. W. S. W. W. % 19; the E. E. and the S. of of section the N. S. % 1/4 1/4 y2 S., 30, township E. the of the of section 30 N. W. 14 range E., M., containing land, 14 Lake W. 640 acres of County, the That the Durand is Or. said defendant by prescription right the use of 160 owner inches of the waters of said Silver of the the reason- Creek ably necessary irrigation of his said lands. in fee That the' Jackson is the owner defendant C. C. following simple lands, of the to wit: The E. described N. range E., M., 12, S., township 28 14 of section W. 1/4 containing County, land, 160 acres of in Lake Or. That a the said defendant to C. is the owner of C. Jackson surplus Conley the of waters from the ditch use the flowing that plaintiff Conley; past the of Marion lands the said riparian the same is not to Silver Creek. Improve- That the defendant Occidental Land & the n simple Co., corporation, the in fee ment of The S. is owner following lands, 1: the to wit: Tract No. described 16; the the S. of section of the N. and 1/4. 14 14 the of the S. and the of the S. and S. N. N. 1/4 14 14 21; sec- the N. of of of the section W. W. W. 1/4 1/4 % 22; of of N. E. E. of N. tion the S. of the the W. 1/4 1/4 1/4 of S. W. the S. E. and N. 14, 1/4 14 E., M., S., range township 28 14 W. section 20—in containing 1,320 County, land, acres in Lake of of 1/4, the N. of the S. 2: The N. Tract No. 1/4 1/4 E., range township S., 14 and the 2, of S. 28 section 14 E. E. E. . N. and the E. S. of S. 14, 1/4 1/4 E. E. section the S. of S. N. 35; 14 14 1/2 34; E. of section of section the S. S. 1/4 1/2 1/4 containing S., range E., M., acres township 14 880 W. County, Creek, land, in Lake Lake Or. That Silver lands; upon County, Or., that said the said flows thereto; as such Land & riparian the Occidental lands are Improvement riparian owner, Co., is entitled said the waters of Silver inches of the use of 355 necessary reasonably aforesaid, Creek, as a measured as irrigation land hereinbefore tract of for the use 1; & designated the Occidental Land No. as tract owner, riparian entitled Co., is Improvement as such stream, of said inches of waters of 235 to the use measured necessary reasonably aforesaid, use aas n Jan. desig- of the tract of land hereinbefore 2; defendant, nated as tract No. but said use said Improvement Co., Occidental Land & the above- land, subsequent named appropriation, tracts inferior to the granted by decree, to the extent George

the defendant H. Small. That in the E. S. of the S. W. town- section ship range S., M., E., County, Or., Lake W. Creek, ‘Bunyard of said branch Silver known as the Branch,’ diverges southeasterly and flows in a direction. Bunyard That said Branch is an ancient well-defined Creek; channel the of said Silver there been has through Bunyard accustomed flow the said Branch point quarter of diversion one of waters of said Silver Creek. That the defendant Buick is the owner Walter C. wit; simple following lands, fee of the described The 14, S., range E., S. of township W. section 28 14 14 M., containing land, County, W. 160 acres of in Lake Or. That the defendant Corinna Buick is the owner in fee simple following lands, of described to wit: S. E. The 14, township S., E., M., range of section 28 14 con- W. *4 taining land, County, 160 acres of in Lake Or. That the Corum, Isa defendants M. Jewell D. Corum and Lulu joint Corum La Brie are com- owners and tenants in following lands, mon of the described wit: The W. E; 13, the N. of N. of the N. section of the 14 14 14 24, S., range E., township N. of W. section 28 14 14 M., containing land, County, W. 480 acres of in Lake Or. simple That the defendant J. M. Small is the owner in fee following lands, of the N. E. described to wit: The S. of the 14 13, and the S'. E. of N. section 14, *4 14 14, of the W. and the E. the N. E. of N. S. 14 14 M., S., range E., 24, township 14 section 28 W. 19,' S. the N. W. of section W. séction *4 range E., M., township S., containing in all W. year land, County, That 680 acres in Lake Or. Buick, Buick, 1885, the defendants Corinna Walter C. Brie, Corum, Lulu and M. La Isa M. Jewell D. Corum Corum Small, grantors, appropriated from and their J. Oregon, and the State of and diverted the United States point away at a near and carried the S. from said Silver Creek sec- N. E. of the W. corner of the S. W. Yi E., S., range M., township Lake 14 W. tion Hough ditches, gates County, Or., by 600 inches of dams, means of head Creek, waters of said and ever Silver grantors since said date the said defendants and their irriga- necessary have used all of tion of their tracts of the said defendants said water for the land That as hereinbefore set out. Buick, Buick and Corinna Walter C. joint appropriators, as such are entitled to the use Creek,

200 inches of the waters said measured Silver aforesaid, the said as Bunyard necessary said the to be deducted from the flow of reasonably Creek, Branch of said Silver as a irrigation use of said waters for the of their lands; right subsequent and inferior said to be rights Conley plaintiffs Marion and Annie C. George Porter, Hough, H. and the defendants John C. Egli, Improvement Small, Lucinda Occidental Land & Porter, granted by this A. D. extent and S. Co. Brie, That defendants Lulu La Isa decree. M. ators, Corum appropri- Corum, such and Jewell D. Corum joint 100 inches of the are entitled to the use of aforesaid, Creek, said measured as waters of Silver aforesaid, Bunyard of the Branch deducted from the flow reasonably necessary use of said waters for lands; subsequent said to be of their said Conley plaintiffs Marion and inferior to the and Annie C. Porter, defendants John C. and the Egli, & George Improvement Small, Land H. Lucinda Occidental Porter, the extent D. and S. A. Co. Small, M. granted by as such defendant J. That the this decree. 200 inches appropriator, entitled to the use of Creek, as afore- measured of said Silver the waters of said, Bunyard Branch the flow of the from to be deducted reasonably necessary of Creek, use as a said Silver lands; irrigation said his said waters for said to be plain- of the subsequent inferior to and Hough the defend- Conley Annie and and C. Marion tiffs Egli, George Small, Porter, Lucinda H. ants John C. Porter, Improvement A. D. and S. Co. Land & Occidental granted by decree. this extent Lane, his B. F. Lane and Jennie the defendants That following simple de- of the wife, in fee the owners are 18, township lands, section N. E. wit:'The to scribed % land, containing M., E., 160 acres of range S., 15 W. 1 and Or.; lots County, E. also the Lake in the N. W. 1/2 range S., township 1,4 of section Jan. E., M., containing land, W. 159.96 acres of in Lake County, Or., Creek, County, Or. That Silver in Lake upon Bunyard to

flows said land from said Creek; riparian of said Silver Branch thereto; that said land is Lane, that the said F.B. Lane and Jennie riparian owners, wife, as such are entitled to the use Bunyard 90 inches of Silver waters of said Branch of said Creek, aforesaid, reasonably measured as a nec- essary said use of the said water for the of their lands; subsequent said but use is and inferior to rights acquired by appropriation of the hereinbefore set out, granted by extent this decree. That the defendant M. F. Chrisman is the owner in simple following lands, fee described to wit: The 12, township S., range E., M., S. E. containing °f section 14 W. land, County, 160 acres of in Lake Or. That Bunyard Branch of Silver Creek flows to and land; thereto; riparian said said M. said land is Chrisman, owner, riparian F. as such is entitled Bunyard to the use of 40 inches the waters of said Creek, aforesaid, Branch sonably necessary Silver measured as as a rea- irriga- use of the said water land; subsequent tion of his said that said use is rights acquired by appropriation, inferior to all of the granted the extent decree. this Huesmand, Banner, That the defendants L. Morris Partin, Jr., Klippel, Egli, Henry Egli, John Martie L. P. Emil Angeline Ward, West, Mary Small, James Martin, Sherer, Hall, Small, M. M. J. Maude D. J. C. Buick, McCarty Smith, Smith, B. E. J. A. and F. F. J. C. Harrow duly have been served with summons and com- plaint herein, appears particularly as more from rec- court, long ords and files in this and a default has since against ap- been ordered pearance entered them the want of adjudged or answer. It is and decreed that said defaulting right, defendants have no title or interest Creek, the waters of Silver of its tributaries branches, or the use of such It ad- water. is further judged right, P. decreed that G. has no Chrisman Creek, title waters or interest of Silver or the use parties It thereof. is decreed that none suit are entitled to recover either costs or disbursements herein. That there is be allowed to flow from Silver Bunyard into its Branch one Creek exceed fourth Bunyard of the flow of Silver Creek at the head of

Branch, inch water, less 600 inches of measured under six- being pressure, through the diversion in and ditch.” Buick Huesmand, Ranner, The defendants L. Morris John Partin, Jr., Klippel, Egli, Henry Egli, L. P. Emil Martie Angeline Ward, West, Smith, Mary Small, J. A. James Martin, Sherer, Small, Hall, M. J. M. Maude J. D.C. Buick, Smith, McCarty R. E. J. Harrow F. F. C. and defaulted, appeal. each and do not appearing George appealing Those Du- but not are: rand, Huesmand, Ranner, Egli, L. Morris Lucinda John Partin, Jr., George Small, Egli, Klippel, H. L. P. Emil Corum, Brie, Corum, Lulu La D. Corum Isa M. Jewell Buick, Buick, E. K. Henderson and Walter C. Corinna M. J. Small. appellants Porter, Porter,

The are: A. D. C. D. S. Porter, administrator, Daisy Porter, widow, F. and W. Porter, D. E. A. and D. minor heirs of A. Porter Carl S. Porter, guardian; Chrisman, Daisy Porter P. John G. guardian; Porter, M. F. Porter and James C. C. Jackson, Chrisman, Lane, Lane, Occi- B. F. Jennie C. C. Co., Improvement corporation, dental Land & Che- Jones, Co., grantee; its P. C. waucan Land & W. Cattle McKune, Mary E. D. Brown and Lutz. E. C. Part:

Affirmed Continued. plaintiffs respondents was a brief there For argument by Mr. J. C. Rutenic. oral Mr. appellants the names of there was brief over For argu- Watson, E. with an oral Moore Mr. W. J. B. by Mr. ment Watson. Buick, Lulu respondents C. defendants and Walter

For Corum, M. Brie, D. and J. M. Jewell Corum La Isa Corum argument by Lionel Mr. and oral there was a brief Small R. Webster. Small, respondent H. there Geo.

For defendant Stapleton. & a brief over the names Coovert Hough Porter. Jan. argument by Mr. Roscoe

There was a brief and oral Johnson, R. amicus curiae. King.

Opinion by Mr. Commissioner given synopsis pleadings 1. a We have above filed, including court, the orders and the circuit decree of pages printed extracted from the 300 abstract rec ord, understanding proper awith view to the of the issues upon parties which the main contentions of the numerous argued appeal. are suit .based and on this The point respect first to which our attention is directed is in directing parties having, to the order of the court that all claiming, subject-matter an interest of the con troversy, brought suit, order, be it into the which is maintained, law, by is not authorized reason of which argued rights only parties it is the to the suit as adjudicated, requiring filed can first a dismissal thereof as to all was others. The statute under which the order made is as follows: any controversy “The court determine between parties it, prejudice before when it can be done without rights saving others, rights;

to the when not be had without their but controversy complete can- a determination of the presence parties, of other brought Comp. them court shall cause to be in”: B. & C. 41, 394. §§ presented by testimony The facts taken in the suit made, instituted, upon order was as first developed controversy as who the real a serious to was causing alleged injury. party appears It that Silver perennial stream with well-defined banks is Creek during channels, carrying second feet from 11% highest feet when at its season to 100 second low-water parties mark, the suit and that the lands of irrigation. Hough’s dependent stream for are that of Porter on distance below farm is a short testimony taken, creek, first as disclosed point later, that below Porter’s taken well Hough George long diversion H. Small and others had for large quantity time diverted a of water from this stream. Hough quantity necessary inches claimed 100 as the proper farm, quantity of her to which she right who, superior Porter, asserted was her maintained, wrongfully interfering she with her right response thereto, thereof. the use In Porter prior appropriator claimed a inches of irri- Creek and its for the waters of Silver branches gation farm, insisted of his lands above the rights that, superior Hough’s whether his were not, permitted he at times less 100 inches all not than diversion, point of of water to flow below his wrongful Hough’s farm but for the would have reached Small, party to H. was interference of who not Geo. Others, parties, upon and in suit. not but situated vicinity stream, appear have of also immediate diverting rights therein, claimed and to have water been irrigation purposes, and quantities water in for various during June, July, August, September that the months year quan- was not sufficient and October of each there all; tity supply the amount of water to the demands consisting during part of season the latter but second feet. II14 instance, plaintiff, could that the first It is manifest persons along the stream defendants all have made as against branches, she whom and on its tributaries Al- might adversely: Comp. 394. claimed B. & C. have § though necessary, would been some have Altnow, parties proper v. been to the suit: Williams have interrup- 200, 208). (95 as But 51 Or. 275 Pac. through using the Small those water tions Small and therewith, apparent from it is ditches in connection adduced, testimony in order the character of Porter, they Hough rights properly determine defendants, properly necessary made and were were Porter, suffi- that he let true, if claimed Hough Jan. pass premises

dent water supply Hough’s his demands, needs and the court could not de- have termined who was entitled thereof, to the use Hough, between Small and or between Small and Porter Hough, might or Porter and as the case have been, they parties unless were to the suit. To illustrate: Assume the respective rights court had determined the Hough and Porter in the first suit under the first complaint, amended and had found there were 460 inches during in the stream season; the low-water inches, and, them, entitled to the first 100 as between inches, Porter was awarded the second 100 en- and had effect; entry tered a decree to that and that after the irrigation pur- thereof Porter had diverted water poses, by appear reason of which he was cited to why show contempt cause he should not be held for court, hearing but at proved should have that he only, leaving used 100 pass inches 360 inches to his head gate. contempt he Would then have been in because the passing point plain- of diversion did not reach words, tiff? In other could he be held for the interfer- by Small, parties ence or others not to the suit? This illustration serves to demonstrate the ineffectiveness a decree entered under such circumstances. Numerous persons instances occur where the between two be, been, bringing can and have determined without others; example, assume that A. and B. are at the A., stream, B., head of a has the first who is below enjoin A suit to A. from inches of water. wrongful easily maintained, a interference could be diverting the where there was no one water from stream respective diversion, points a decree between their of seen, B., readily be would in that case it can favorable effective, its could be as it would be such that violation decree, true, punished. it would not bind a be Such parties proceeding, be but it would not others it, an parties constitute efficient as between the v. Porter. adjudication respective rights, of their of which either could avail himself subsequently in the event should both joined litigation be others in with over the same stream. Many rights adjudi- the suits of where water have been class, cated been have of this and the ac- decrees have cordingly effectual, large doubt, number, been while a no passed through have the courts and to final decree as stream, when, a on between the to have few. afforded complete remedy, multiplicity and to have of avoided suits, parties, others should been-made as was done have consideration; in the so case under the to do but failure having point in such cases has due to been been the. raised, nor the court’s called to the status attention litigants respect. suit in this It is manifest rights parties under of the three consideration the respect named could not have determined with been being court, could other without all the same each along the stream. be said of others opinion therefore that much discretion We are of cases, court and that must be allowed the trial in such spirit to hold within the reason and statute comes indirectly, directly interest, or that all an who have may, by suit, subject-matter of the order thereto, where, court, parties especially as in made be us, case the determination before litigants been have could not otherwise before court decree, en- accuracy, when nor had with reasonable court tered, effectively of the The discretion enforced. per- by requiring all respect exercised below in claiming adjoining an interest owning or lands sons branches, to Creek, its tributaries the waters of Silver plaintiff de- parties, brought either in and made appeared, with directions fendant, their interests other, think the evidence interplead and we each as to course wisdom the trial confirms adduced at public policy, public with pursued. It is consonant con- determination require, when interests Hough . v. Porter. Jan.

flicting claims public to the streams, to the use of irrigation, manufacturing purposes, other useful appears many eventually brought suits must be rights persons determine the property various whose use, is to be affected such it should be within the sound all, discretion of the trial require court to persons interested, parties, here, to be made as was done rights in may adjudicated order that the of each be finally proceeding. determined in one This course should permitted, be obviously contemplated is the stat- ute, only economy not with the litigation, view to but respective that the justly, interests of all affected peaceably permanently ascertained and settled dur- ing cognizant the lifetime of those of the facts adjudications which the must be had. It is obvious that only impracticable it is not to determine such many adopting instances course, without such but that separate if brought year left to year suits to be from disputes may arise, only as will much valuable evi- pass beyond all, course, dence the reach of but such if pursued, necessarily years litigation must result turmoil, and, many instances, complete in a denial justice. opinion We are of the therefore that no error requiring appearance committed the court in of all the defendants. point

2. The next to which our attention is directed misjoinder parties plaintiff is there and of parties having defendant. Some of the defendants de ground, ques murred on this and otherwise raised the tion, necessary. a determination thereof becomes These however, adversely points, necessarily disposed are appellants’ question contention under the first consid persons ered. this court holds that named Since plaintiffs necessary proper to a de and defendants were Hough respective rights and Por termination of the ter, properly parties they were, accordingly, made joined suit, plaintiffs, and as to who should have been and who defendants, should have accordingly been made depends upon alleged proved. the facts appears or Since it Creek, the diversion or use of the water of Silver or tributaries, by any of its branches defendants, or of the plaintiffs’ alleged rights affects thereto, each of the then all are demanded, by interested in the relief reason of they join were plaintiffs which entitled to to secure the required protection: Comp. 394; Stingel B. & v. C. § Nevel, 62, 65; Altnow, (95 9 Or. Williams v. 51 Or. 275 200-208). disposes question Pac. This also of the alleged misjoinder defendants, reference to the of the reasoning applicable for the same authorities and are positions plaintiffs. to their relative as to the point urged 3. Another and more serious is that complaint, amended, bringing after the order parties, additional does not state sufficient facts to con against defendants, stitute a suit cause of except Porter, grounds S. A. D. defendant on effect, is, P. and others demurred. It G. Chrisman Porter, complaint conceded that is sufficient as to alleges since it interference him in the use sufficient injury. of the stream to constitute a substantial After averring constituting injury by Porter, and the facts against sought, injunction him is which an have, complaint claim “That all the defendants avers: rights have, interest in the waters of Silver some rights Creek, nature or extent of said but that the exact unknown, plaintiffs the defendants are to or claims of interests, any, them if defendants and each of and the plaintiffs in the waters are inferior to allegation demurrers that the stream.” It is to this said arid appear directed. In the to be of various defendants pleading sufficiency states, this manner of where L. P. Cache questioned, it has been sustained: has been 420) ; (62 532 Pac. 27 Colo. R. v. Water S. & S. Co. Co. 325) ; Wiggins (29 Harrison, 676 Pac. 93 Cal. Harris v. (45 Pac. 160: Muscupiabe 182 L. Co. Cal. & W. Portee. Jan. 1909] 337) ; Rep. Farm Inv. Co. v. R. A. 667: 54 Am. St. 32 L. Rep. (61 Carpenter, Wyo. Am. Pac. 258: 87 St. 747). that effect would 50 L. R. A. Averments to 918: language spirit B. & C. within the seem to come “Any person 394, which, alia, provides: Comp. inter § interest who has or claims an be made a defendant controversy plaintiff, a nec or who is adverse to essary party complete or settlement to a determination questions therein.” involved Imp. Co.

4. Irri. v. Umatilla In Umatilla Co. maintained, rights attempted (30 30), to be Pac. sought, was of which a decree and for the determination governing corpora special asserted under a statute were provided acquir specific tions, wherein a manner and, ing by appropriation; when the court title to water required a con the statute strict there observed that struction, evidently that act. In the it had reference to case, fact is called to the of that attention consideration perfected plaintiff claim had not a to the that the rights asserted, to which the court there in reference say: Pac.), plain page (page 22 30 “The 389 of Or. 37 of any bring principle of failed to itself within tiff has equity jurisdiction equity enable a court of would rights alleged supposed pass upon the to consider (page page 22 37 of complaint.” And at 387 of Or. its logic position to Pac.) seemed That clear of the : the certify plaintiff owns be ask the court “to to enabling claims, purpose it to for the water which announced rule there a sale of its bonds.” The make defendants, application no to cases where can have necessary proper them, may deter to a or some of be plaintiffs, who between mination of the right, allege disclosing may and de an established facts threatened, upon acts, a based real or fendants in suit grounds appre for the sufficient to constitute reasonable property injury to vested some substantial hension of appear Comp., rights. would ex- B. & C. Section give pressly right, circumstances, under such any person make party has, a who have, or claims to an controversy interest plaintiffs. But, adverse independent of statute, that section of the ex- law, part general isted at common a equity of the Inhabitants, jurisdiction. As observed Ballou v. Hopkinton, Gray (Mass.) 324, regulating 328: “In rights of mill owners and all others use of ’ stream, persons interested, wherein numbers of are equity able, by decree, regulate respective one their rights, to fix the time and manner in which water drawn, and within what limits it shall or shall not be parties, respectively; all pecu- drawn and thus it is liarly sought adapted against alleged to the relief such disturbance, complete nuisance and affords more remedy adequate than can be afforded one many Upham, (Mass.) at law: suits Bemis Pick. 169; Ames, (Mass.) Again, Bardwell v. Pick. 333.” Comp., B. since Sections when-construed & C. court, together, give power discretionary require to the persons subject-matter all interested in the suit parties, provisions statute, by to be made these implication, powers essential include such proper carrying of the order into effect. that,

5. it is those In this connection manifest as to interfering persons actually alleged plaintiffs’ with rights along stream, averment, except no of similar import complaint, have set out in the could well to-that allegation is therefore that the been made. It obvious have, have, claim to an that all the defendants of the, Creek, of of the waters Silver interest in distribution etc., complainants, the of which is unknown to nature purpose requiring to all for the of should be sufficient rights, respective interplead whatever and assert their suit; be, they may subject-matter the and this of all, respect adopted procedure in was the course of see except some did not A. D. Porter. as to S. While Jan. d. neglect

proper affirmatively rights, assert the their part their to do cannot interest of the on so affect the parties and, only suit, most, the other could result being precluding in default in decree entered those asserting against parties any rights the from hereafter the as here whose interests under issues made be that, adjudicated. impelled are therefore to hold We brought otherwise, demurrer, question by whether adopted complaint procedure the averments are sufficient. question

6. to the The next for determination relates right of defendants to have their interests and claims adjudicated prac appears It between themselves. tically all are not defendants who in default have pleadings response their co- filed to the answers of defendants, specifically denying the affirmative aver several ments or counterclaims in the answers of the respect that of In case unlike defendants. Bennett, 59, (45 Nevada v. Pac. 472: Ditch Co. 30 Or. Rep. each 777), that while 60 Am. which it is held St. the averments of the defendants therein denied complaint affirmatively up rights, their and in set alleged prior and claims be some instances had their defendants, superior other adopted plaintiff, procedure there of those of adjudicate quan permit the court to insufficient except tity priority appropriations, plaintiff the several defendants. between the therein and pur to be indicate the course our statute does not Since sued, seem to proper'procedure cases would such chancery, general modified that the methods of be Pomeroy, Code, adopted: Rem. spirit must (3 Louis, 390; ed.), 808; (3 ed.), Bliss, Eve v. Pl. Co. § § App. 470; Boyd,, Ind. 457, F. Ind. Diamond Co. G. 479) ; Ins. (66 Louis N. E. Tucker v. St. Life 594. Co. Mo. Hough v. Porter. Or. chancery courts,

In the sought a when defendant re- against codefendant, lief a apparent as to matters not upon original bill, the face cross-bill, of the he filed his alleging therein the matters which he relied relief, making defendants thereto of such codefendants proper, process and others as necessary was bring Comp. them in. B. & C. abolishes cross- § bills, provides law, but that in actions where a defend- relief, arising ant is requiring entitled to out of facts interposition equity, aof court of and material defense, may, upon filing his he therein, his answer also plaintiff complaint equity, file a a the nature of cross-bill, upon which the issues thereafter tried be equity. provision that, implies out as in a suit in This brought, right a equity when suit in is the same would follow, filing except necessity separate a pleading obviated, leaving distinct af- defendant defense, firmatively up commonly to set termed counterclaim, alleging necessary the facts to relief against parties all or to the suit. applicable, however, only

7. This method is where against up cause of suit set the codefendants is one aris ing having to, subject-matter of, out reference original suit; appears and such the status consideration, in the suit under defendants as each involved, appears to claim an interest stream main respect and to claim and assert some thereto says against court,” (Section the other. “No Mr. Bliss original 390), deny right, “would or invent one’s an it, proceeding protecting because an mode omis long Code, equity sion in the so as the common-law or practice remedy.” furnished Here the Code abolishes substance, form, appears this but court leaves recognize remedy, as available under it: Nevada Bennett, (45 472: 60 Am. Ditch Co. v. Pac. 777). Rep. St.

Jan. necessary, however, cases, It is 8. in such that suffi given against cient notice be the codefendant whom sought. relief is In Tucker v. Ins. St. Louis Co. Life 588, 595, it Mo. is remarked in that “it that state has not practice process cases; been to issue in such but it always customary ample has been to a afford time to sought codefendant to answer as to the relief time—a generally by which is fixed the court’s order to that if, any statutory rule, effect. And in the absence of we governed parity reasoning by to are deduced from sought by petition, cases where relief is at least the same plead opportunity granted time and to should be where sought by relief answer an in the nature of a cross- bill, prayed by petition.” as when But from Pome roy, approval Rem. cited with in Nevada Ditch Co. § Bennett, page (page at of 30 Or. of 45 Pac: 60 Rep. 777), appear Am. St. it would that service of a notice of some substantial nature would be essential jurisdiction required in such cases. As the notice in such pointed Code, cases is not out it would that seem affirmatively up since there exists the set in the constituting cross-complaint, answer the matter counterclaim, place original bill, in an as in the chancery practice, doing, the defendant in so to all in purposes, places position tents and himself a plaintiff respect codefendants, with the result accompanied the issue and service of a summons by copy pro a of the answer a similar manner to that original plaintiff proceeding a an vided would be bar, however, sufficient. In the case order of the court, copy to, of which directed and served each, appear required that all should within a there time plead interplead respect specified, and with to each might appear, other their several interests which was same, purpose, in effect and served the same summons, require appearance and was sufficient interpleas respect demanded. In the order hav-

ing interpleas each, only pro- directed the between such ceedings required thereof, were after service in refer- serving copies answers, etc., ence required as were brought. the rules of the district in which the suit was Without, time, determining at this whether the affirm- counterclaims, constituting ative defenses are suffi- ciently pleaded, facts, etc., or state sufficient we hold that procedure adopted by par- the method of the court and responding and, ample, pleadings ties thereto was if the purpose, give state sufficient facts for the is sufficient to jurisdiction necessary the court to determine duly may appear each who to have been regularly with the served court’s order in reference thereto. disposed principal points

9. Thus far we have arguments and oral discussed briefs of counsel for respective which, parties, the the determination of it was argued force, with much must in a result dismissal all, except parties far the suit so as affects original reached, however, suit. The conclusion leaves court, making necessary adjudication all in an of their rights practicable respective so far as under the issues brings evidence, us merits of the con to the troversy. stated, appear

As will from the issues some proceeding riparian proprietors, parties to the claim as prior appropriation. invoke the doctrine of while others Throughout discussion, otherwise, has oral and it granted is taken for that all the lands on been and irrigation pur- riparian thereto for streams involved are correct, law, poses. assumption, as a matter of is If this concerned, then, riparian are far as such owners so may must be be entitled water to which each thereof rights being basis; their thereto sub- distributed on appropri- rights ject only have of those who to the inception prior of such time of the ated the water to the then, What, the basis of riparian must interests. .be Jan. riparian owners, any?

distribution between if Dur- ing season, needed, the low-water most when flowing approximately water in Silver Creek is inches, 4,000 riparian with about acres of lands demand- ing large water as such. These ter- lands cover ritory, proportionately and to the water divide between say nothing 7,000 them —to of about acres of lands of parties claiming prior appropriates hereto —would scarcity result such of water that it would seem that very materially could none benefited under such cir- large portion acreage cumstances. A of this has never irrigated, yet been the owners thereof demand acreage long brought equality on an with lands since irrigation. riparian into cultivation If the doctrine prevail, rights, must law, appear their under the entitled diligently same consideration as those have who applied was, effect, the water to a beneficial use. It announced, Conn, (64 in Jones v. Or. 30 Pac. Rep. 634),

Pac. 1068: L. R. A. 630: 87 Am. St. (decided April 28, 1908), in Williams v. Altnow 51 Or. (95 200), thing Pac. prior there is no such riparian ownership, so far as distribution of water for irrigation purposes riparian between con- owners is cerned. Altnow, In Justice Mr. Chief Williams Bean says: riparian "A proprietor has no title the water flow- ing passing land, only right over his but to use while it is place, right and this a cor- subordinate to responding proprietors. pro- in all other One prietor another direction or use the give unreasonably cannot- detain or the water any injury way it in of necessarily follows, therefore, others. It that proprietor riparian nature and extent of the of a stream, irrigation, water of a cannot be meas- can the amount rule, by any or fixed ured definite nor purpose water to which is entitled to use for that he determined, ordinarily definitely al- be ascertained or though exceptional may, perhaps, cases. this be done in upon varying quantity, depending necessarily It is proprietors injury

use other and whether it is an them.” If, then, water,

10. the distribution of the or of portion it, bar, material in the case at is to be made riparian doctrine, under the so-called modified we are shall, problem with a serious as to how it confronted case, accomplished. this be the cause has been While rights largely theory riparian that have at tried on lands, inadequate tached to the the evidence seems to be making equitable purpose of an distribution for the made, under rule. Before the distribution can be that quantity water in the stream we must first know the irrigation during season, time the acre from time to thereof, age crops, character the amount farm in of each irrigation crop proper required of each and kind for the each, etc., crop, all of the time for showing properly surveyed platted, lands should respects other in detail. in this and various its status voluminous, although record, discloses but little But the upon points nature these evidence of a definite other water, scarcity there is a required. When explicit acreage large, is and more evidence is much riparian adjust between required in order ordinary It been proprietors conditions. has than under among riparian distribution held in California instances, may rota owners, be made under the in some time, periods than a divi method, rather tion Wiggins M. L. Co. 113 quantity: W. Cal. its & sion of Rep. Am. R. A. 667: 54 St. (45 160: 32 L. Pac. (64 Conn, fact, 39 Or. 337). in Jones v. as stated In St. R. A. 87 Am. 54 L. 630: Pac. 1068: Pac. particular depend upon the 634), must Rep. each case adopted for that it, rule can be definite and no facts greater particularity therefore, clear, purpose. It is where the proof cases than in such required in the ownership But not arise. riparian does question of theory that the appears tried been case to have Hough Jan. true, riparian applica- is if the

converse is doctrine parties, to the ble lands owned the several a gre'at them, may necessary number it re- become sug- light points mand the cause further on gested. however, record,

The discloses that none of the lands upon by subsequently acquiring were settled those title thereto, beginning year 1878, until with which about the subsequent passage Act, is to the of the Desert Land (95 Altnow, as indicated in Williams v. 51 Or. 275 Pac. 200), question it is a this serious whether act does not abolish common-law rule relative to doctrine of riparian rights, interpretation ap as so far its has been plied of lands to title which has been ac quired 1877, 3, since that act became law: Act March 107, 1, (U. 1901, p. 1548), Comp. c. 19 Stat. 377 S. St. § 393; 6 Fed. St. Ann. United States v. Rio Irri. Grande (19 Sup. 1136) ; Co. 174 U. S. 690 43 L. Ct. 770: Ed. Carpenter, Wyo. (61 Farm Inv. Co. v. Pac. Rep. 918, 935). 265: L. R. A. 747: 87 Am. St. question was neither While raised court be here, materially rights parties low nor it so affects of the suit, represented by counsel, some are of whom not passed cannot be unnoticed. Nor do we feel dis posed pass upon question importance, vast such only litigants here, but, perhaps, to thé to numerous throughout State, giving others without first those opportunity an concerned to be heard. proper

It therefore deemed to continue the cause for argument, by may heard, upon further such as to be wish points leaving any indicated, open discussion points determined, among other and not involved here may sufficiency pleadings be the to deter- defendants, mine the several as well priorities claiming respective prior parties between the together appropriators, with a full discussion arise, privilege points may other with the of" v. Porter. filing such other, bearing and additional briefs on points to be considered as be desired. Argu-

Affirmed in Part: Continued for Further ment. January 5, 1909. Decided

Supplemental Opinion. 1088.] Pac. King. Opinion by Mr. Commissioner principal appellants urged The contention of as first jurisdiction directing was that the court acted without persons that all bordering in the lands interested on Creek, channels, Silver its par- tributaries and be made suit, ties to the part and that such action on the court questions constituted reversible error. These practice thereto, with matters incidental were deter- adversely (51 mined to counsel’s contention Or. 367: 95 732), argu- Pac. and the cause was set down for further points involved, principal among ment on the main which riparian rights, Cong. as affected Act. 3, 1877, 1901, (U. Comp. March c. 19 Stat. 377 S. St. p. 1548), known as the “Desert Land Act”: 95 Pac. 732. question points formerly This and the determined were fully re-argument. discussed at the After a reconsidera- questions practice presented tion of the we find no depart reason from the conclusions announced in our opinion. former come, then,

11. to a consideration of the Desert We owning Act, upon parties Land as to its effect hereto rights upon involved, lands the streams of each of passage whom have attached since the of the act. This any legal problem confronts us with the as to whether riparian owners, and, so, are if to what extent and what bearing upon rights their claims as such have the water question. Jan. history prior

It has become matter of subject laws the use of water was exercised permitting any person go upon under a custom stream, supply upon public or other source of water domain, and divert therefrom wherever and when- needed, provided ever the use thereof did not interfere rights prior words, priority with the of others. In other in the diversion and use determined the con- flicting procedure encouraged claimants. This was acquiesced government through- many years states, recognition out the Pacific Coast until in thereof Cong. July 26, 1866, 262, 9, Act c. Stat. Fed. § (U. Comp. 1901, p. 1437), St. Ann. 1090 S. St.

adopted, provided: “Whenever, by priority pos- session, rights mining, agricultu- to the use of water for ral, manufacturing, purposes, or other have vested accrued, recognized acknowledged and the same are courts, customs, laws, the local and the decisions of possessors rights and owners of such vested shall protected same; right maintained and and the of way for the construction of ditches and canals for the- purposes specified acknowledged herein and confirmed. * recognition pre-existing This act constituted a rights any one, rather than a creation of new and accord recognized ingly appropriation and assented to of water in contravention to the common-law rule as to continu (25 ous flow: Broder v. 101 Ed. Water Co. U. S. 274 L. 790) ; United States v. Rio Irr. 690 Grande Co. 174 S.U. (19 Sup. 1136) ; Ct. 770: 43 L. Ed. Albu Gutierres v. querque (23 Sup. Land Co. 188 U. S. 338: 47 Ct. 588) ; Chamberlain, (98 L. Ed. Davis v. 51 Or. 304 Pac. 154). Supplemental act, provision

12. to the above made congress July 9, 1870, incorporating a reservation rights patents issued, of such favor in all when patents granted, pre-emption follows: “All or or home allowed, subject any steads shall be vested and accrued rights water to ditches and reservoirs used * rights. connection with such water *”: Rev. St. § (U. Comp. 1901, p. 1437). S. St. This was on followed 3, 1877, by March what is known as the “Desert Land Act,” parts which, in so far as material to this dis- cussion, are: “That any it shall be lawful for citizen of the United States, any person age requisite ‘who be en- citizen, titled to become a and who has filed declara- upon payment twenty-five tion to become such’ and per acre, cents to file a declaration under oath with register and the receiver of the land district in which situated, desert land is that he intends to reclaim a exceeding section, by tract of desert land not one con- ducting upon same, period water within the of three years Provided, however, right thereafter: conducting same, person the use of water so any tract on or to of desert land six hundred and upon forty depend prior appro- acres shall bona fide priation; and such shall not exceed the amount of actually appropriated, necessarily and used for reclamation; surplus

"purpose Iwater over and above 'together Sources of water and appropriation use, such actual lakes, and other with the water of all rivers public lands, supply and not appro- ireeN'or the remain and be held shall [navigable, mining, irrigation, public use of the priation * subject existing rights *”: manufacturing purposes Comp. (U. St. Fed. Ann. S. St. U. S. Stat. 1548). 1901, p. pro- foregoing “An act to act reads: The title of ter- lands in certain states sale of desert for the vide congress, known Being it is well an act ritories.” the act embrace required that the title of it is not prevails in and, rule provisions; while a different all its exception probably rather states, an it is some of the congress matters are limited to that acts of the rule than pre- being the rule which title. This their in contained body of only congress, look we have vailed its intention. ascertain the act to Jan. providing

13. After for the reclamation of arid lands procuring thereunder, and for the of title it will be ob that, act, in this served as essential to the reclamation lands, right, person the water when located taking land, depend upon prior appro shall bona fide priation. apparent. object The reason The purpose reclaim, of the act was this method to develop, productive and make arid lands or those of character, nonriparian. desert aas rule were For years many open question it was an whether lands through which streams flowed in their natural channels subject were to reclamation under this act: Sims v. Phalen, 11 Dep. finally Dec. Land Int. 206. But it was determined such lands could be where reclaimed clearly shown to of a desert character: Houck v. Bet telyoun, 425; Dep. 7 Land Dec. Anderson, Int. Nilson v. Dep. Considering 23 Land Dec. Int. 139. this feature long-existing with the then conditions in reference to the public throughout West, pro lands the reasons for viding acquired that the water should be under the prior appropriation doctrine of are obvious. (1866) priority

This first act possession refers to customs, rules, etc., regulations, and local to which rules applied; depends of construction were soon the outcome ing largely upon whether the decisions were courts strictly in localities of a arid nature or in the humid strictly section, If prior states. in a arid the doctrine of appropriation prevailed; while, humid, if a middle ground, ripa- or what is called the “modified doctrine rights,” appears rian to have the one adhered to been public and deemed the most conducive to welfare. passage Near time of the of this act had conflicts application law, applied ripa- arisen from rights, rian arid and semi-arid West. In Califor- riparian nia the effect thereof on was involved determined, fully doubt while Nevada much Or.-13 Hough Haines, 249, had the noted case of Vansickle v. 7 Nev. adhering decided, the rule on the been to common-law subject. however, case, subsequently This'latter was overruled, appro prior which since time doctrine priation prevailed: Adams, v. has there Jones Nev. 78 788) ; (6 Rep. Am. Pac. 442: 3 St. Reno Works v. S. Stevenson, (21 A. 60: 19 20 Nev. 269 Pac. 317: 4 L. R. (67 364) ; Wallace, Rep. Am. St. Walsh 26 Nev. 692). Rep. Pac. 914: Am. act of 1866 had St. The doubt, only question its left somewhat in effect not upon riparian rights, uncertainty an whether but upon thereby permanent a rule intended to establish subject; 1870, requiring and the act of reservations patents issued,” inserting all a therein to the statement subject patents effect that executed to vested were etc., evidently rights, and accrued water was intended precautionary then ex as measure to remove doubts legal any patents subsequently tant effect of rights issued, applicable any acquired before so far as the date thereof. therefore, order, to es-

In remove such doubts and throughout tablish rule the states mentioned uniform act, whereby appropriations all from streams made flowing congress through public had lands over power legislate, provisions specifying after be re- manner lands under the act could in which taken surplus claimed, all was the clause: “And there added use, appropriation and water over such actual and above lakes, together rivers, and other the water all with lands, supply public upon the and not sources of water appro- navigable, remain and be held free for shall mining irrigation, priation public use of the existing rights”: manufacturing subject purposes Comp. p. 1549). (U. This reser- Stat. 377 S. St. public rights of water for the benefit of vation clearly provisions of the the other essential sufficient to de- previous The contained act. statement Jan. 1909] v. Porter. protect selecting

fine and of those lands under act; something proviso, the desert land but the added import, of similar was essential to the establishment of subject regards a clear and uniform rule appropriations thereafter to be made from streams or public other bodies of water the lands and to which might riparian. such be The words “shall remain appropriation be held free for the public and use the irrigation,” etc., clearly are words of reservation and dedication, obviously insisted, so intended. It is however, language that quoted is insufficient for grant, trust, a dedication; grant either pre- that a grantee supposes capable receiving it; a it that is not trust, a necessary because all three essentials consti- e., trustee, tute a trust —i. res, trust que and cestui trust wanting; —are it cannot be held to be a dedication/ right there easement, alluded to is not an but usufructuary only, partaking is of the nature of real estate, incorporeal hereditament, analogous' an a “profit” land, depletes riparian right. in that it It is grant further observed that a is not a dedication by grant, and cannot arise since it exists in favor of public, respect entire asserted, to which it was stated, grantee. above that it cannot a become being 14. A is dedication defined as in the nature of gift, inuring a public grant, to the benefit of the aas but differing grant grantee from a in that no in esse is nec essary validity: Eng. Ency. Law, 21; to its 9 Am. 13 & Cyc. giving property 439. It consists of devotion or proper object for some and in a such manner as to con County, clude the owner: ex rel. Sims v. 6 State Otoe 129, 133; 185, Patrick 193 Neb. Y. M. C. A. Mich. v. (79 208). N. W. “reservation,” something used,

15. A as here taken thing general from the whole terms mak covered ing grant, (or act, cuts down and lessens under may which title to res from which the reservation be made) except what it would such reserva- from be Phrases, 6140; (Tex. p. Weynand Lutz v. tion: Words & App.), 29 S. 1097. Civ. W. gov applied The latter term here: The national

16. relating public ernment its various laws lands granted acquiring privilege title there its citizens Construing act, together to. one Desert Land language appears Act used to reserve therefrom public right citizen, any entire after March use, right 1877, divert, acquire in and to the flowing through, adjacent to, unappropriated waters patented, deter lands such to be thereafter by priority. Reservations class be mined of this Ajax v. Co. Min. Gold Min. found Calhoun Gold Co. (59 L. R. 209: 83 Am. St. Pac. 615: 50 A. 27 Colo. S.) (10 17) ; McConnell, (U. Rep. v. Pet. Wilcox C.), 264) ; Higbee (C. Fed. 723. L. Ed. Wilson seriously questioned 17. It not be that such would might effectively expressly made in reservation and. Then, when take or other evidence of title: we a deed extent the into consideration that to determine the through conveyance any kind a from received title otherwise, by patent, we government, grant, whether or lands all acts force in reference to the must look into in conveyed, what interests be to ascertain intended thus to subject transfer, to it becomes manifest remain principle in is no difference between reservation there resulting express an act in force at the time and from an through title itself which reservation the instrument may asserted. be may however, seem, as to what be

18. It would by any thus reserved proper term interests may designated, inquire. is it mate Nor we need not recognized or established any term has been rial whether rights privileges and reserved by to cover courts public, government indi by or to surrendered or composed. public Our form which the is viduals of Jan.

government, constitution, powers reserved to the government, necessarily given privileges has rise rights fully by by covered the common law or govern terms in common use under it. The dispose public lands, ment of its and to with all deal rights thereto, may incident such manner as it deem best, long fully recognized has been established and subject. legis True, decisions it cannot any state, admission, lation determine for after its what rights riparian (United the local laws relative to shall be v. Sup. States Rio Irr. Grande Co. 174 U. S. 703: 1136) ; general government, 770: 43 L. Ed. Ct. but the dealing public lands, may provide with its for their might any proprietor, transfer as other landed and make by grant, dedication, such reservations therefrom or oth may erwise as it see fit. Riparian may subject grant

19. become the aof dedication, may or be severed from the soil: Co quille (Or.), M. Mill Co. & 98 Pac. Johnson 132. This principle clearly concisely opinion stated an and( Judge, Knowles, (C. C.), District in Howell v. Johnson 556, 558, “Being 89 Fed. as follows: the owner of these (public) lands, power dispose has the sell any part (in estate ques therein thereof. The water tion) unnavigable flowing public in an stream over the part thereof, government domain is a national grant same, thereof, separate can sell or or the use estate, from the rest of the under such conditions as proper.” seem to it Decisions the above effect are too numerous and well too understood need extensive n citation.

By congress granted the homestead and other land acts right, to the citizens of various states and territories any thereafter, upon public at time to the domain enter land, quantity to a select of in the manner there securing home, specified, thereby a and of notwithstand- ing designated accept no certain individual was to such title. The effect the

receive of these acts was grantor public lands, government, of the the national public, was to hold these lands in trust for the to be ac- compliance any qualified thereof citizen on quired grants praesenti prescribed. the rules Numerous in with designated made, were also to be held trust states grants any company, person, persons who such wagon might any indi- construct other roads there example, grant For a was made the of cated. State designated Oregon lands, public of alternate sections mile, numbers, per by odd three sections to be selected was, passage the time the within six miles of what act, imaginary given points an road between two State, upon doing acts within the of certain there- reserving builders, performed, if thus after to be, right might select the odd sections there 89; July 5, 1866, c. v. Act Stat. Cahn desired: (C. 326; C.), Dalles 5 Fed. United States v. Mili- Barnes Sup. others), 599, 11 (and tary R. seven 140 U. S. Co. 560; 988, 35 Ed. V. L. United States Willamette & Ct. (D. C.), 351; Wagon 42 Fed. United M. Road Co. C. (C. C.), Wagon M. Road Co. v. Willamette V. & C. States certainty, in time 711. Such a road became 55 Fed. years passage act after the more than selected, which it has been were in reference to lands thereof the thereto relates selection held filing map of definite location of date of back intervening road, shutting claims and out all settle- regardless' patents ments, to settlers thereon issued notwithstanding this, too, during meantime; and holding abeyance and. policy was instrumental such public large withdrawing tracts of from settlement century: quarter Eastern for more than a domain Any (C. C.), 807. Oregon 147 Fed. v. Brosnan Land Co. have entered thereon on are held to such lands settlers knowledge law, to have taken them with full land, “contingent subject such interests” Hough v. Porter. Jan. 391 road, possible might company of such become the ben- grant: eficiary (C. of the Gittings C.), Altschul v. 102 36, Fed. 38. apt

Another and policy more is illustration that of the government respecting lands, of the national its mineral regard any one, acquiring any which part to title to public any of the domain under the homestead or under act, subject other exception takes such land that acquire he does not title the to minerals known to be entry patent, therein at the time of whether located inception minerals the time of the of the grantee 2318, its (U. or not: Fed. Ann. St. S. §§ Comp. 1423, 1424) pp. ; St. Calhoun Min. Gold Co. Ajax (59 v. Gold Min. Co. 27 Colo. Pac. L. A. 607: 50 R. Rep. 17). 209: 83 Am. St. prerogative

20. It inwas the exercise aof similar on part government the the that there was act given public, any to to individual thereof^ right appropriate apply to beneficial use the flowing through public waters its domain. No limit as right may made, to the time in which this be exercised is except in effect that he who first diverts the water and diligence applies with due it to the uses there enumerated given right is the better thereto. It can make no differ ence, therefore, grant, whether it be termed a reserva tion, dedication, trust, privilege. or other unquestioned power

21. This of the owner over public exercised, entering any upon, domain was one acquiring to, part public title of the domain after passage act, accepted of this such land and title knowledge with full thereto of the law under which the patent issued; import being thereof that right govern incident soil was reserved ment, public, to be held in trust for the and that he who applies first the water ato beneficial use shall become thereto, the owner recipient and that subject right, he, of such title takes public, privileged with common others of the is to exer- elementary grantor cise. convey It is can no greater rule, applied title than This he has. to cases nature, clearly of this concisely stated in Hume Rogue Packing (92 1067). River 51 Or. Co. Pac. plaintiff grant There State, was owner of a from the directly either conveyances himself or mesne others, bordering upon river, of all the tide lands the as uplands adjacent well as of all the to the river tide above water, acquired the title to which was from the United States, description and the of which ran to meander the discussing feature, court, by In .lines. this this Slater, C., says: grant express by “He title to has no from the State any part such; of the stream does bed and but he claim title of the the at mouth to entire bed of the stream the where, shifting river, by of chan- reason the of the versa, south, nel from to vice of the river north purchases of from as tide land successive the State river, deeds

the the his uncovered sands on both sides of least, is, point of apparently, at that overlap, the he river, But this owner the bed of the stream. the of support of fact, claim of apprehend, no in will of avail we be flowing such ownership over when of greater rights any acquire no land, he could in event legal ordinary given effect thereby would by than be authorizing its exe- statute virtue of the such deed of delivery.” cution and necessary to it made act of 1870 true that the 22. It is ac all vested and patents of a reservation insert etc., make rights way, as well as to rights, crued water minerals; but, respecting patents reservations similar legal the reservation effect of stated, far as so unnecessary, been concerned, have such would right had. than grant government no greater could patents be to requiring nature, those like Acts other hnd railroad acquired under lands issued acts passes virtue of which title grants, under legislation. In supplemental lands, granting are but Jan. may conveniently

this manner the evidence of title more placed record, thereby convenience, add to the many respects, title, holder of the but otherwise nothing (C. C.), adds thereto: v. Cahn Barnes 5 Fed. 331; Pengra (C. C.), 830, 835; v. Munz 29 Fed. Hanes, Langdeau (22 606) ; L. Ed. Wall. United Military (11 Sup. States v. Dalles R. Co. S. 599 U. 560) ; Ct. 988: 35 L. Ed. also cases cited in 8 Rose’s (U. S.), enjoin the owners of certain lands on Columbia Eiver interfering by from with the exercise the Indians on reservation, Washington, Yakima Indian in the State fishing rights privileges over, adjacent on and along Eiver, patented lands the Columbia to the defend- therein, rights pro- ants which were under claimed treaty visions of a made in 1859 between the Indians and treaty United States. This ex- reserved them the right running clusive to fish in all streams on and within prescribed limits, certain lands within and to in com- fish territory mon with the of the citizens at accustomed places vicinity, In- in the and further secured to such way necessary all lands for car- dians the over rying rights effect, together such reserved into with the erecting public privilege any of the then lands tem- on curing Subsequently porary buildings of fish. the lands between the Columbia special River and the tract set aside and known their “reservation” were by state, entered citizens patents, of that ánd without res- any kind, ervations therein of were issued to them. Washington Grants from the State of to the shore land fronting patented procured by lands were also patentees, together with licenses from the state to main- taking fish, By tain devices for called “fish wheels.” patents, grants rights acquired virtue of these thus by they the landowners it maintained that could fishing along preclude the the shores and Indians from crossing purpose, patented that lands for from Indians, argued respect to under which it was recognized gov- them and reserved to executory “merely treaty, acquired an in the ernment defined applying privilege, to no certain license or States, fish, places, will of the United and revocable lands, upon public hunt, temporary houses and build con- citizens, law has whom the with white common conten- by occupancy These whatever.” no title ferred by the United States Circuit Court tions were sustained (C. C.), Fed. (United state Winans in that States observing: alia, the Judge Hanford, 74) ; “The inter government patents, after conveyed by ory lands citi appropriated individual being conveyed and so occupation by the to use and zens, remain subservient still same, law than Indians, otherwise over the for travel camping highways, fully public established treaty, provisions grounds, support of the in the finds no interpretation rules for the construction nor in the interpretation applied statutes, must be public the United laws treaty land and of the Supreme appeal States to the United But on States.” Sup. (198 381: S. reversed U. this decision was Court holding, substance, 1089) ; the court L. Ed. 662: 49 Ct. notwithstanding to the lands patents were issued that, subject patentees government, took same Jan. rights

to fish reserved to the Indians thereafter to along including right River, the shores of the Columbia a temporary purpose, erect that to to structures privileges such retain easements as would thus enable the discussing reserved be exercised. In the effect of the patents say: large- the court “The reservations were in negotiations territory, areas and the were with They rights, however, every tribe. reserved individ- though Indian, They imposed ual as a named therein. every upon piece land, though servitude described right fishing therein. There was an exclusive reserved right within certain boundaries. There was a outside of boundaries those reserved ‘in common with citizens of territory.’ department grant The land could ex- no ceptions provisions. difference, from its It makes no therefore, patents department issued are subject They treaty absolute in form. are the other laws the land.” foregoing (1)

23. It is clear from the decision proprietor government, whether the landed be the a tribe Indians, owner, proprietor may or other such reserve grant right in, over, appurtenant to, or or interest with, lands, or in manner connected its not neces sarily alone, to an individual but to class of individuals general, particular, as well as in without limit as to time, use, application, privileges or thus reserved, dedicated, granted; (2) or or and such public in its interest lands becomes effective in favor may reserved, those for whom it be it to whom against dedicated, subsequently acquiring those thereto, though rights may ex title even such not be patented until after ercised the lands shall have been (3) that, binding others; far so as the effect subsequent purchaser, thereof is concerned such reservations, exceptions, is immaterial that such are specified patents or other instruments of con veyance. Hough Porter. v. fully ably dis this class are

24. Reservations of by Supreme Kentucky the in Court of Rowan’s cussed Portland, Supreme Town B. Mon. 232. The Ex’rs v. of Hampshire, New the case of v. Franklin Court of in State 513), 240, (6 Rep. H. Am. declines Falls Co. N. agree reasoning to the of that court or either to with enunciated; the rule there but the United States follow (6 Supreme Court, Morgan Railway Co. in v. U.S. reasoning- clearly 716) (24 743), adopts the Otto L. Ed. applied by Kentucky court, the that con and observes the full, given able, questions sideration there those is a exposition subject, the with which correct of the law on we Ex’rs v. Town conclusion concur. In Rowan’s of Portland, B. related to certain 8 Mon. the dedication adjacent stream, right the streets a and included of to along wharfage right or land vessels to boats other bordering part The of the river. the street thereof, court, discussing legal the concludes in effect holding subject grantor, the use to which that the title to dedicated, it thereto himself trus was held the title in as grantee subject public, tee took to such his large trust, public at and further observes: “Whether the grantee recipient was be this or could the immediate or right po inquire. it we should consider fruitless The by right public in and was tential use created conveyance lots, passed sale and and whether abeyance, public, in at once to the or remained estoppel; purchasers of mere result of an or vested in the part conveyed them, it lots was estate beyond perfect case future either alike control original proprietor of the title on alienees ingrafted.” Again, as which this of use was stated Y.) (N. Post, 119: “It in Pearsall v. 20 Wend. seems Supreme well Court of the settled United neighboring States, by states, courts several may, chancery perhaps, court which we add the religious state, that dedications of land for and charitable Jan. public

purposes, ways, squares, as well as for com- mons, parks, ways, and other in nature of are easements upheld, although person capable esse to be be no there taking grantee time. It remarked Lessee, Thompson, Mr. Justice in Cincinnati v. White’s (8 452), principle, if well 6 Pet. 431 436 L. Ed. ‘the law, general application founded in must have a appropriations public use, and dedications for where there grantee ‘This is no in esse to take the fee.’ He adds: exception applicable private forms an to the rule grows grants, necessity These out of the of the case.’ comprehend every remarks case where a man conceivable give up his has furnished evidence of a clear intent any legitimate purposes public real estate for the use.” Privileges unusual, of this class were not and were recognized being subject early to dedication in the history subject, by of the law on the as disclosed further court, namely: pass “I remarks therein of the same easements, ways, over the more usual instances of such as commons, privileges, etc., enjoyed by and water either ** may individuals, towns, corporations. or other We pass common, put also which over those are less one by (8 452), Mr. Justice in 6 Pet. 437 L. Ed. Thompson, Lexington, (6 Ed. from McConnell v. L. Wheat. 735), spring public use. the reservation of a of water for might corporation, It was made a which turn the. (cid:127) spring purposes. public its own or Thus the user was right. A invoked to establish an individual like case watering 56a, customary place mentioned in Litt. Co. Southwarké, violating which an the Inhabitants of spring action was held to lie.” In the case alluded to by Virginia appears that the Commonwealth Law,” an act known as the “Land reserved 640 acres situated, land, upon spring which the was for the benefit village city, had settled in a afterwards to of those who among such settlers. The out into lots and divided laid village spring use inhabitants of a was in common tract, located on this and afterwards claimed one of grantees purported upon of the lot which it sit- was court, however, opinion uated. The in an Mr. Chief Justice spring by held the use of the Marshall, public recognition long period and the thereof for a dedication, that, though time constituted such a even grantee the claimant thereof be considered the spring situated, land which the was its use for the purposes although mentioned, no reservation was made deed, must be deemed to have been It reserved. public be said that in that case the entire exercised right spring dedicated, to the use of the thus but it right must be remembered that the exercise of this merely by constituting public. the individuals public right

25. In the case at bar the exercises the manner, except larger a somewhat similar aon and more scale, appropriation by any extensive in that an indi gives corporation vidual or it'a in and to the flow appropriated purposes and use of the water for the diverted, right may which it is afterwards be sub ject that, to sale and transfer. But it is clear if a dedi public spring cation can be made to a stream quoted,' manner indicated in the last case any supply may owner of source water make a like any dedication in that or in other manner determined upon. making dedication, The manner of the as well as legal effect, its must be determined from the act in by which it made. strument In the case under consid language eration it will be observed that the used is that surplus waters of the streams and of other sources of designated supply water shall- remain and be held free appropriation public (1) for the and use of the for irri (2) mining, gation, (3) manufacturing purposes. appropriating using The manner of the water for mining irrigation, manufacturing, purposes was at that time and has been at all times since well under- ; public stood hence the use and manner thereof is meaning, interpreted light specified, when in the of the 399 Jan. existing facts, applying usual it for then manner of power purposes diverting by means ditches and of including systems irrigation, use also and other the usual methods in use miners. public and

26. It follows that the reserved surplus dedication waters therefor were intended then, Construed, for use that act of manner. with the provisions 1866 and other of the are of act we opinion upon that all lands settled after the date accepted implied act the latter were with the under standing (except stated) as hereinafter first to appropriate purposes specified use the for the right superior in the act should have thereto. * So determine, far question, as we are able as here presented, squarely has not heretofore been before But, an courts. while not deemed essential adjudication therein, we find the act of 1877 considered following to some extent in the cases: Alt Williams v. now, (95 200) ; Pac. Farm Investment Co. v. Carpenter, Wyo. (61 Pac. 258: 50 L. R. A. 747: Rep. 918); 87 Am. St. United States v. Inv. Co. Conrad (C. C.) 123, 128; 156 Fed. United States v. Rio Grande (19 Sup. 1136) Irr. ; Co. 174 U. S. 690 43 L. Ct. 770: Ed. Albuquerque Sup. (23 Gutierres Land Co. 188 U. S. 545 588) ; Colorado, 47 L. Ed. Ct. 338: Kansas v. 206 U. S. (27 Sup. 956) ; Liberty 655: L. Ct. 51 Ed. State ex rel. Superior Court, Spokane Lake Ice County, v.Co. 47 Wash. 968). (91 Pac. mentioned, Altnow, pro- In first case who was the prietor upon Springs land had Warm Creek source, prior appropriator its claimed both as a as a riparian riparian owner. To claim it was maintained as a defense his lands were settled after act, date of the desert for' land which reason he was not alleged riparian proprietor in the sense that as such riparian he could assert a owner stream Sup. *See: Ct. Rep. 494, Boquillas citing- Land & Cattle cast on above Co. v. Curtis, point. U. S.—29 U. S. Reporter. irrigation; expressly and this contention was in that case upheld by point trial Mr. Jus- court. On this Chief pro- riparian claim as tice Bean observes that Altnow’s (all being posi- prietor parties other therein in the same upheld respect) reasons: tion in this could for two (1) prior appropriator claim That he relied having by it; (2) that the lands been and was bound year 1877, question since “it is a serious entered not abolish the so-called whether desert land act does rights, gives ripar- riparian modified doctrine of which right proprietors ian to use water nonnavigable flow, through streams lands government acquired from the the title to which has been passage And since act.” United States act, quoting “The he further remarks: after from States, primary government as the owner of the United pro- soil, undoubtedly has the to make such nonnavigable concerning waters of streams visions proper, debata- and it is at least a thereon as it deemed congress language quoted, whether, by question ble recognize appropria- and assent to the did not intend to to the common-law such waters in contravention tion of rights persons subsequently riparian ac- as to doctrine of quiring States: United States the United title.from (19 Sup. 770: S. 690 Ct. Rio Irr. Co. 174 U. Grande 1136).” L. Ed. priority Wyoming appropriation

In the doctrine rule to the common-law beneficial use in contravention legislative By subject prevails. enactment in 1886 on the every that state was de- stream in the water of natural of, of, dedicated to the use property clared to be the appropriation acquiré- public. The manner of among which, specified, included such are ment appropriation was de- priority for a beneficial use of an right. give thus It is evident the better clared to land act the court provisions the desert without to that doctrine. to adhere held and was bound there Hough Jan. v. Porter. 401 Carpenter, Wyo. But Farm 110 in 9 Co. Investment (61 Rep. 918), Pac. 258: Mr. 50 L. R. A. 87 Am. 747: St. discussing question to Chief Justice in Potter, the express statutory whether an constitutional or declara necessary tion was in the the first instance render streams and natural the property bodies of water .other subject public, and to the control of the the laws of state, riparian rights, says: without reference “If general government primarily consent of was the requisite inception prior appropria- of the rule of tion, that consent is to in be found several enactments by congress, beginning 26, 1866, July act with the of including 3, the desert land act of March 1877. Those quoted acts been have too often and are too well under- require stood expense a restatement at this time the unduly extending opinion.” of this Territory,

In prior New Mexico where the doctrine of appropriation prevails, question also a similar to that Wyoming the case came the court in before Gutierres v. Albuquerque (23 Sup. Co. Land S. 545 U. Ct. 338: 588). question validity 47 L. Ed. The there involved the permitting of a territorial act the construction of canals condemning rights etc., way, of in reference to which urged it invalid, was the that territorial act was because only dispose property assumed to of the the of consent, United its but States without was in conflict with legislation congress and, therefore, the of void. It was argued there the waters affected the statute-were public exclusively States; property the of United permitted private parties but the statute alluded to corporations acquire unappropriated waters in vio- right government of lation of to control and dis- pose considering property its In wherever situated. feature, speaking Mr. Justice the court White, (188 Sup. 341, 588), S. 552: 23 47 L. Ed. U. Ct.

opinion “Assuming appellants are observes: to, urge objection think, entitled to referred we legislation congress subject view of the on the public domain, particularly appropriation of water on the opinion referred to in of this court United States 690, Irrigation S. v. Rio Grande Co. U. 704-708: Sup. (48 1136), objection devoid Ct. L. Ed. * * By 3, 1877, c. of merit. act March Stat. might appropriate such an water amount necessarily purpose used for the domain, land, part public reclamation desert granted, provided surplus that ‘all and it was further use, appropriation over and' and above such actual together lakes, rivers, and with the water other of all supply upon public not lands and of water the sources navigable, appropria- held for the shall remain and be free irrigation, mining, public and man- and use of the tion ” rights.’ subject existing ufacturing purposes to inquiry In Rio Irr. the 27. States v. Grande Co. United navigability River and as into the of the Rio Grande was proposed would have on navi the dam therein to effect gation. unquestioned the com was there While it .every riparian was entitled mon-law rule was that owner stream, and that states and the continual flow of the to change permit power and to had the to this rule territories flowing purposes appropriation the waters for such the power they wise, “is the that this deemed court states general government superior power the limited navigation uninterrupted of all streams secure the to urged in It was the United States.” within the limits of in act of 1877 also that the desert land this connection right appropriate the to waters of cluded therein thereby stream, though depletion should caused even act, navigation. opinion the land desert impede In the re are together of 1866 and that of acts with court, concerning to, Mr. Justice which ferred page S., page 706, 776 of of 174 U. Brewer, 1136), “Ob (43 as follows: Sup. comments L. Ed. Ct. extended, congress they viously by acts, these so far Jan.

recognized appropriation and assented of water contravention of the rule as to continuous eommon:law congress re- flow. To infer therefrom that intended navigable country lease its control over the streams grant mining and to aid of reclama- industries and the appropriate tion of on arid lands the the waters navigable the sources of streams to such an extent toas destroy navigability, carry their be- is to those statutes yond legislation import permits. what their fair This light existing interpreted must be facts—-that mining through region streams, in the west were navigable, safely appropriated whose waters could mining agricultural industries, without serious navigability interference with the of the rivers into which those waters flow. And in to all reference these cases of purely purpose congress local interest the obvious give assent, public its so far as the lands were con- cerned, any system, although in contravention to the rule, permitted appropriation common-law legitimate those waters for industries.” appear only These to be the attention cases which the act, plain court has been called to this inference jurists that, opinion from which is the eminent quoted, 3, 1877, the act of March was such a reservation government public the national to and for and rights such dedication thereto of all its in and to all the flowing through public irrigation, waters its lands for manufacturing mining abrogate purposes, and to the upon subject, modified common-law-rules the so far as applicable to all lands entered after that date. But the language effect of the of the act that shall “there remain appropriation and be held free for the pub- and use of the irrigation,” etc., think, constituting'words lic for we while dedication, of reservation and limits the thereunder only deprivation riparian to the the lands of the water may riparians in so as it far claimed the for the purposes rights insepara- there enumerated. One of the Portee. always

ble from the land has been that the of such owner adequate flowing supply land was entitled to an of water together use, over it for domestic with for the sufficient necessary proper domestic animals for and the subsistence family. proprietor maintenance of the landed and his This necessary use, doubt, gave no rise the to doctrine riparian rights development upon in the earliest of the law subject, by requirements navigation, the followed for next right pur- power extended to include its the to use poses, garden production and later to of such and the grains family as was essential to subsistence of the riparian right riparians such owner. At first the of all evidently was restricted to the demands the stream pro- purposes Lastly, civilization for the first named. gressed through- and extended sections over the semi-arid nations, riparian out the different demands accord- ingly enlarged more to include became extensive watering irrigation, first, doubt, to but limited at no garden reasonably necessary produce of such and other riparians’ consumption, as the domestic strictly populated, arid reason of localities became agricultural, commercial, correspondingly increased right finally mining development, this extended purposes irrigation, only for the limited include large pro- mentioned, watering areas in but grains agricultural products, to- other duction of present gether expansion all its with its thereof include uses. language clearly intended act was

28. The used change respecting riparians to the rule pur irrigation, mining, power of water for use cited, its It poses ; it has limits. as in the last case but giving rights originally go far as affect the does not so rights; is, riparian for domestic rise doctrine of including watering use, animals and such of domestic of the owners to the sustenance be essential stock as adjacent bodies of water. or other to the streams of lands Jan. cited, although abrogating as held in the last case

And subject, the common-law rule on the the act not in- permit appropriators deplete tended to to the flow to such materially navigation impair extent to an directly indirectly may rivers to which such streams be plain: permit an tributaries. The reason for this is To navigation deprive interference with the en- would be to public right, tire of a valuable which all times has been recognized paramount to that of the individual desir- ing interference; permit appropriation such while to an through depriving which owner of land w;ater may irrigation, person it flow of its use for affects such only. government may So far as the be concerned depletion particular benefit, of a tract land of if such any, recouped by it is the reclamation of a like tract for causing injury may which diversion made. However, presumed 29. it cannot be it was the congress absolutely intention of to render the soil worth by drying less the lands diversion the waters flow ing through nonriparian to them lands as soil to leave the without the water essential to owner’s domestic needs. Presumably possible the best results for all concerned intended, were it is clear could best be obtained permitting quantity the settler to retain the of water family essential to the sustenance of other nat thereto, but, proper ural wants incident if he see does not apply act, specified of the uses then permit first builder other home on lands to make such bring of it use as will into cultivation not ad the lands jacent streams, thereby protecting the settlers lands, only both classes of and at same time not en courage building, government home but enable dispose lands, its more of and to enhance its revenues proportionately. happens

30. It often an owner of lands arid dis them, merely tricts does not want'to farm but wants engage pur- where he raise other home stock supply suits, only meet requiring sufficient water to thereto, artificial and for which no natural wants incident may application become neces- stream diversion or presumed sary. not/therefore, necessarily that It will irrigate lands, he will or that intends to such settler purposes, rea- for which the water for such ever demand language congress evidently by-the used intended son that, purposes, some such if desired for the act other, sufficient manifestation thereof diversion or given, and, for the reclama- if not desired notice should be permitted lands, not be that the should of his owner tion But, regards apply complain it. as if shall so to another settlement, use, requirements for domestic looking procurement steps towards the other taken gives ample thereto, water for notice that title be, is, de- necessary will uses continue domestic entered, appurtenant as much so the land manded as purposes; such the water as would a diversion of irrigation, appropriated min- while, to be if intended ing, power purposes, affirmative action in some require essential, it reasonable to is but direction This intent or notice thereof. clear manifestation of an right, for Of such a requirement is vital to the initiation entry exacted for the that some notice is the same reason reasonably presume Congress could of the land itself. purposes that, appropriation for the were desired if an steps act, mani- would be taken in the some mentioned festing intent, that, first if the owner is not the such making applica- direction, person an move in that time a beneficial use within reasonable thereof to tion diligence, ought and he is entitled for his to be rewarded recognized pro- respect rights in that to have his acquired title who has the settler For this reason tected. through flow, may stream took which to the land rights person has or who subject who use of such stream for subsequently make the first act, excepting only purposes as to enumerated needs of such settler. wants and natural Hough v. Porter. Jan. 1909] is called to references our statute

31. Our attention 5000), which, rights riparian (B. Comp. & C. §§ recognize riparian argued, the doctrine of it is regardless being state, of the act of con in force in this strength gress equal It could with under consideration. Comp., B. & C. be maintained Section respecting rights provides that “all controversies by the dates of the under this act shall be determined parties,” respectively appropriations made con the doctrine stitutes a declaration to the effect that prior appropriation prevail. statute does not shall The attempt riparian rights, ex determine the to define nor to irrigation. applied It tent the doctrine as or effect of owner, only rights riparian has reference to such as such may they be; proprietor, have, may as the whatever rights question are, as what and since 1877 such been, have is the one under consideration Owners here. adjacent rights riparian of land to bodies of water have presented controversy: other than those in this See Mor (87 Ry. ton Pac. 1046: v. O. S. L. Co. 48 Or. 444 827) ; A., (N. S.) 5 Rep. Coquille 7 L. R. 344: 120 Am. St. (Or.), Mill M.& Co. Johnson 98 Pac. 132. As here v. held, only riparian rights inbefore the act of 1877 affects acquired that to lands title to has been since which date, only claim then in so far as a to the use pur may riparian asserted as owner for poses in the act enumerated. connection And in this pro Comp., will be that B. observed Section & C. contiguous against stream, those tects the owner to the as claiming part, act under the of which that section is a required to the flow of the stream to the extent thereto, household, domestic, uses incident other quantity purposes with sufficient actually exception to use. extent then needed An accordingly the land that extent made in favor of owner, against, only of, to the extent such may under be asserted the act. n Beck, Our attention is called to Sturr v. 133 U. S. 541 (10 Sup. 761). Ct. 350: 33 L. Ed. That was a contro versy riparian between subsequent, owner and a but prior, appropriator, agreed and was submitted an on upon stipulations, statement facts. Based these findings, among trial court made which de Was upon fendant’s through first settlement his land March, 1877, the stream flowed was in and that he made filing a homestead thereon on 25th of the same month. findings These appellate were conclusive court. The date alluded to does not disclose whether the settle prior ment subsequent 3, 1877, March the date Owing, therefore, of the desert land act. to the uncer tainty settlement, as to the date of this decision cannot be point. held in And the further fact that no reference appears clearly as to the exact date indicates that either date, the settlement was made before or that question litigants did not occur to the and was accord ingly urged court, before the nor considered it. But, whatever respect, view be taken in this its bearing question on the practically disregarded, at hand is overruled, by if not that court in its declaration on the subject through Mr. Justice Brewer United States Co., quoted, gen Rio Grande Irr. above as well as in the eral reference opinion to this act the same court in an by Mr. Justice Albuquerque in Gutierres v. Land White (23 Sup. 588). Co. 188 U. S. 545 338: L. Ed. To Ct. extent, therefore, that Sturr v. Beck be deemed precedent regards riparian a rights, weight as its is ma terially lessened, if, indeed, pre the rule as there and viously subject by enunciated on the is not that overruled Colorado, court in the recent case of Kansas v. S.U. (27 Sup. 956). 655: 51 L. Ct. Ed. In Beck Sturr v. was, effect, plaintiff it ap in held that the could make no propriation against Beck, riparian pro as who was a prietor and who was entitled to the undiminished flow of the stream. This claim as to the law was asserted and Jan. v. application upon in Kansas

the same thereof insisted that Colorado, insisted in which the citizens of Kansas large being quantities from water were diverted large Colorado, by a Arkansas River the inhabitants of claiming appropriators prior were as number of whom lands, against diverting nonriparian and the water to Kansas, riparian proprietor. modified 'a In Kansas the rights riparian prevailed, while in Colorado doctrine of govern- recognized prior appropriation as the was and is ing injunctive relief doctrine. The court refused bill, stating riparian that if the dismissed the in substance against prevail doctrine in Kansas as should Colorado against nonriparian users whose were involved therein, Arkansas lower on the Oklahoma and its citizens might opposition River rule to both invoke the same in great Colorado, in- the citizens of Kansas and to their jury, doctrine, observed, ruinous is would be dismissing bill, court, its effect. The indicated injury injunction no would lie until a more substantial shown, in- time found that the could be the same large appropriators above terference a number of the materially depleted flow the State Colorado opinion riparian plaintiff. was writ- lands of the This ten Mr. was not a member Justice who Brewer, argued and was court when the case of v. Beck Sturr although submitted, reason, member for which filed, he opinion court when the in the latter case opinion Kansas- part took no in the decision. The claimed only the rule case brushes aside Colorado riparian regarding Beck, have been announced in Sturr v. writer, rights, what, opinion but discloses part strong tendency on and commendable rigid great recognize of common rules that the court in- sought applied those law, interpreted to be inap- theory, sisting are flow” the “undiminished neces- questions many plicable new and intricate through- government arising sarily under our form of Hough v. Porter. out specific arid and semi-arid a sections. For statement of case, disclosing the facts in many using lands, defendants nonriparian to be the water on opinion, see the first which was on demurrer: Kansas v. Colorado, (22 Sup. 838). 185 U. S. 125 552: L. Ed. Ct. come, now, adjudications

32. We in this state. urged it While is that the decisions of this court have recognized a doctrine inconsistent with that here enun ciated, our any attention is not directed to where question, presented, as here has been before the court urged or in manner or submitted. Nor have we been able to' find such a case. Numerous suits have arisen riparian questions urged, considered, where the have been discussed, respects determined; and in some in but appear none does the lands were that entered after the date If, fact, of the act under consideration. the titles to lands involved in some of the cases were obtained since act, the date of the the court’s attention was not directed thereto, and it well settled that no case can be deemed precedent binding upon point the court unless the question presented was there or considered.

The first case in this state wherein the doctrine of riparian rights appears to have been considered is Taylor Welch, 198, which, alia, v. 6 Or. inter holds every proprietor through effect that of land which may stream of water run is entitled to its undiminished opinion flow without obstruction. This was filed in questions irrigation and no were involved. The rule only decision, unnecessary there announced was not to a impliedly subsequent opinion by but modified in a Mr. Robbins, Justice Boise, 8 Or. Coffman upper holds the flow ri- be diminished parian proprietor to the extent of the amount needed supply quantity domestic wants and a reasonable irrigation. opinions Since then numerous other have court, directly indirectly been filed in this ri- where parian rights as affected have been dis- Jan. 1909] among determined,

cussed, points thereto in reference Oswego 76; Hume, v. Shively 10 Shaw Or. which are v. Colohan, 146) ; (45 Rep. v. Am. Shook 10 Or. 371 Iron Co. 13 503) ; Oregon Iron Or. (6 Co. v. 12 239 Pac. Weiss Or. (11 Pac. 255) ; Campbell, 13 596 (11 Or. Kaler v. Pac. 496 (26 Am. St. 20 301) ; Cooke, 455 Pac. 662: 19 Or. Faull v. 678) ; (33 836) ; Schafer, 239 Pac. Rep. 24 Or. Low v. (54 9 Coughanour, 34 Milling Or. v. Powder Co. North 855, (64 Pac. Conn, 65 223) ; 30 Pac. 39 Or. Pac. Jones v. 634) ; Rep. v. Brown Am. L. R. A. 630: 87 St. 1068: 54 193) ; 799, Mace v. (65 Pac. Baker, Pac. 66 39 Or. 66 737) ; Oregon (67 660, Mace, Pac. Pac. 586 68 40 Or. (69 455: Pac. 41 Or. 209 Allen Ditch Co. Const. Co. v. Lord, 82 701) ; 42 Or. Rep. Mills v. Am. Salem 93 St. Berry, 593 832) ; 42 1033, v. Or. (69 Pac. Cottel Pac. (77 Demaris, 584) ; Harrington (72 46 Or. v. Pac. 756) ; Morgan S.), A., (N. 14: 1 L. R. Pac. 82 Pac. v. Duncan, 534) ; (83 v. Shaw, Pac. Seaweard 47 Or. Drainage 1043) ; Dist. (84 Parkersville Pac. 47 Or. 640 Altnow, 775) ; (86 Wattier, v. Pac. Williams v. 48 Or. Chamberlain, (95 200) ; 51 Or. Davis Pac. 51 Or. 275 foregoing appears 154). cases (98 In some of the Pac. year all of while in passed that the title before to the the title the initiation of the date of the others disclosed, riparian and no lands there alluded to point. In upon that appears made to have been issue riparian owners participants claimed Jones v. Conn issue; the dates only, was tried out on and the cause having rights presumably no inception of their bearing thereon. contestants’ of the the initiation

In v. Duncan Seaweard 1877; year irrigated after the land occurred pri- the relative only presented were as to issues but dispute. the water appropriations their orities of Creek, involved, through flows there lands Crooked Seaweard, inches of water for irri- used but 120 who owner, gation. nonriparian insisted Duncan was upon having all the water in excess of that di- amount vided Seaweard, although between himself and his ditch inches, being carried but 80 appropriation his full sufficient for the nonriparian of his lands. In might this case the passed upon court have question considered, here upon had Seaweard relied his claim as riparian proprietor. Likewise in L. Seaweard v. Pacific (88 963), Co. 49 might Or. 157 Pac. question the same determined, have company been had the- there relied there, that claim. But the issues like those in the other case, being priorities as to the relative of their diversions each, only questions adjudicated. use of these were It is prop- manifest these Seaweard cases cannot erly support argument be cited in that the doctrine riparian rights was not affected the desert land act, framed, proof since the issues were not so nor offered thereon, point although considered, as to entitle the to be possible it were to frame issues that end. But it would logical be as precedents point cite these cases as on the Oregon under as to insist the other consideration cases cited should be conclusive. Other illustrations might given, this state where the titles to the lands affected the waters involved were obtained since opinion and where no reference was made thereto in thereon; but, above, filed like the and for the reasons given, they point. are not in Considering, then,

33. the effect the desert land act parties lands of the whose the interests are here involved, question riparian as what arises lands are and what is the extent thereof. To determine what are riparian channels, stream, a brief the main examination of tributaries, necessary. and branches becomes Silver S., range township E., slope 31 14 Creek rises on the County, immediately Cycan marsh, north of in Lake northerly a and flows distance of about 25 miles into entering formerly marsh, what was Pauline the marsh at point township 2 near the center of section and 413 v. Porter. Jan. 1909] spread mentioned, years, range where, recent it until was reclaimed its current terminated. its bed Until miles, through which square about ten marsh covered Lake, emptied miles three into about Silver Creek Silver mainly from The stream fed waters below. is During Hager slopes Mountain. south and southwest of usually 1st, beginning early spring, it about March reaching (sometimes twice 100 feet carries about second stage), highest 40 to 50 quantity from when at its during May, after which first week second feet feet, re- thus rapidly it recedes to 11 or second about during year. maining The west branch rest of east, range township south, rises Creek Silver cor- flows into main channel near the northwest range, township ner 29 of the and the two streams same together supply furnish the of water mentioned.

Bridge Creek, tributary Creek, rises in of Silver dividing Mountains, Yamsay La'ke line between near northeasterly, emptying counties, runs and Klamath 15, town- Island Branch the center of section into near Creek, range S., E., ship and thence into Silver February until about June 15th furnishes and from 1st average feet, an second after which flow about three through- foot, thus diminishes to one remains second supplied by this stream quantity out the season. The of Silver not included in estimate the flow the above - Beginning center of Creek. near the the S. % high- township range, a N. E. of section same channel, through after water seldom flows water which May year, side of any leads from the east the 1st of mile to the stream about one Silver Creek returns point the near corner of S. W. below at a the southeast diverge, one point At 15. two channels of section Vi. artificially creek, which, from each side the until “high-water channels,” and opened, were known as first through after the no ran at time which water divergence May. easterly is as “Bun- The known week in Hough 414

yard Branch,” which, point at a near center N. 14, again W. divides, S. W. of section from *4 14 point branches, which continuing point both to a near 13, township S., center of the W. of section % range E., practically disappear, emptying what, into opened, at the time the channel was was a The marsh. divergence from the is west bank known as “Island Branch,” northerly through 15, and flows section return- ing to the main stream near the sec- southwest corner of point tion 11. At a near the southeast corner of N. the W- 11, of the S. W. section there divaricates what % “Conley being Branch,” known as a channel similar named, through to the other branches which extends Conley lands, A.S. D. Porter onto the ends near west line of the C. C. Jackson farm. In S. E. the N. W. of section Silver Creek into two divides % channels, through each of which continues the lands of Co., Improvement and the Occidental Land & section into what was Pauline marsh. once With the exception of the main channels of Silver Creek and its named, high-water merely, all tributaries were channels through May water no flowed after 10th until im- proved enlarged as indicated. years Island,

Between the heads of Bunyard, Conley artificially opened, Branches were time, depleted since which the stream was not when irrigation purposes, about one-fourth diversion Branch, through Bunyard has one-half of run channel, remaining through and the re- the main returning Branch, through Island above the mainder channel, through Conley Branch, which latter head of with, one-fourth flowed when interfered about through continuing Conley’s main premises; rest only the streams channel. this time the residents on At premises of occupying what are now the were those Porter-, Porter, Hough, Conley, A. D. J. C. and lands S. Lutz, E. H. D. well now claimed Small Geo. Hough 415 v. Porter. Jan. 1909] Egli Durand, miles several of Lucinda and those Geo. opening acquiesced The channels was above. of these stream, year the water since the 1882 all on naturally through proportion run them in about the has Having than in this manner for more indicated. flowed they prescribed limitations, period the statute Berry, (72 42 Pac. fixed: 593 have become Cottel v. Or. 603, 584) Demaris, (77 ; Harrington 111 Pac. 46 Or. L. R. A.,(N.S.), 756.) 82 Pac. 14: 1 Therefore since about year de 1880 each well of these branches has been recognized part Creek, far fined and and so as Silver riparian applied channel to the main can be they equal attach with force to branches named. evidence, nearly as

34. As determined from the can be general maps especially from and data to gathered geological history from the and records of sur veys country, throughout commonly in use the state except time, reclaimed, 2, at that and until section thereof, 1, township the south one-half and all of section range south, east, 14 35 and and sections range township S., E., town and all of section S., range ship E., swamp lands were overflowed constituting part marsh, which Silver of Pauline into and, emptied; water Creek and its channels while the finally through swamp way marsh worked its practical below, into Silver Lake there was no channel constituting swamp until over the lands or marsh Creek, after the settlement of the farms above on Silver tributaries, channels, depletion of its after which irriga caused water flow the use of the above for tion, together with the artificial channels constructed drainage, land, reclaimed since it be said formed, they been when were formed channels but have spreads not record does disclose. When the a water well-defined current it cannot be deemed no with course, bring permitting a will rule such as within riparian the stream. It is claim thereto owner on through always necessary, however, the stream flow banks; well-defined but the current and course thereof clearly perceptible. point, Farnham, must be On this Mr. (Section 458), says: in his work on Waters “In order to a water constitute course water must a have current. stagnant, spread destroy It cannot nor out to so' as spreads current. If the water out so that the current imperceptible lost, becomes or is a water becomes lake pond, longer See, also, or and is no a water course.” Wiel, Rights (2 ed.), p. 161; Taylor, Water West v. 16 Or. (13 665). 165 Pac. by

35. 2 None the lands claimed in section Occi Improvement Kittredge Co., by dental Land & or in sec 36, Brown, defendants, McKune, Jones, tion or Hen derson, Jackson, Small, Lane, J. M. and B. F. or those 26, township J. owned C. Porter in sections 23 and range S., E., riparian any are to the streams or channels mentioned. McCall’s land was at one time riparian Creek; to one of Silver the'lower channels of settlement,thereon years but for more than after his ten prior to the commencement of the suit this channel closed, has been from which the been water has diverted during dry has, into other water courses season. He accordingly, rights acquired, lost such if he have any, Oregon riparian owner: v. Ditch Const. Co. Allen (69 Rep. 701); Co. 41 93 Am. Harr Pac. 455: St. ington Demaris, (77 603, Ill 14: v. 46 Or. Pac. Pac. A., (N. 756). 1 L. R. S.,) respective

36. The owners of all lands on Sil situated Creek, tributaries, branches, ver its are entitled at all times to a sufficient flow the waters of Creek to Silver needs, including supply quan their domestic a sufficient tity stock; a reasonable number of but no definite quantity can, purpose for this' under the before evidence us, here, must be fixed further than hold that it be such ample supply quantity as to furnish an reasonable manner and in that the stream shall not become such injurious stagnant any the health nor in manner of the supply. depending on the inhabitants their stock Hough Portee. Jan. therefor, being inadequate The evidence us

37. before necessary purpose in each the chan the flow for this nels left for under this must therefore be determination below, any question here decree to the court in the event concerning permission quantity, with after arises such thereto, upon supplemental, enter a decree in reference showing purpose sufficient affected parties: Ry. Co. See Morton v. S. L. 48 Or. O.

(87 A., S.), (N. Pac. 7 L. R. 344: 120 Am. 1046: St. Rep. 827). remaining surplus after and neces

38. The such wants during any supplied year sities are season are sub ject rights appropriation, attached thereto and be came vested the order of time in the water has appropriated. been diverted and considering each,

39. Before in detail the we general applica shall notice some of the facts and law of respective rights quantity tion to the re involved. The quired proper irrigation for the of the lands varies from per of inch one-fourth an to one inch acre. The term “inch,” to, wherever referred is estimated on the basis of Wiel, Rights inches one “second foot.” See Water (2 278; ed.), Wright, (91 Gardner 49 Or. Pac. 286). determining “duty water,”

40. quantity In the of or es irrigation any given land, sential to the of tract of we character, must take into consideration the the climatic conditions, the location and of altitude the lands to be irrigated, crops, period irrigated, the of kind time and necessary irrigation, many manner well other as contingencies arising here. entering water, quantity

41. The “head” of o1r in the ditch, take of or canal must A also considered. large body water, used at one and the time same tract, larger quantity proportion will reclaim of land ately supply; example, than will a small for one miner’s might prove many inadequate inch instances for the Or.-14 irrigation

proper an of more than a small fraction of acre, inches, feet, if while second under 2% person might time, of and used control one one properly irrigate 300 acres of the same kind of land. hand, Applying principles

42. these the case at involved, no we where there are small bodies or tracts users, by adoption use think generally more modern and' economical methods now more use, applied flow and in will find that a of from constant per prove inch acre one-third to two-thirds of an will irrigation adequate proper al of the lands. The per an inch lowance of from one-third two-thirds of quantity, permitted if to flow acre furnishes sufficient days, 1.5 continuously feet cover the soil making feet,” amount), depth (if lesser “acre 1% larger amount), depth (if approximately 3 feet in govern feet, by the acre which is more than allowed or 3 irrigation for the of lands ment reclamation service County, they alti where have about the same Klamath tude, climate, soil, crops, with similar and where the irrigation, required improved methods of latest government, “duty water” there are in use. The government project to under its allowed acre for the entire season each of the water users 1% being Rep. of feet, here Ann. the minimum awarded: 6 larger p. 195. instances In some Reclamation Serv. originally quantity permitted here amount than history diverted; merely in the earlier but because applied, vicinity large not quantities were diverted withstanding were suffi first constructed the ditches necessarily capacity carry supply, does not such cient Again, it has been so needed. that such was indicate of common as to matter become often demonstrated years' re knowledge do of that lands after applied, which, was essential quire when first the amount growing crops This of law thereon. the successful greatly methods, nature, improved reduces added Hough Jan. quantity required. now See v. Conrad United States (O. C.) 123,

Invest. Co. Fed. 130. argued since, 43. It is also that methods under old by depletion in use before the substantial of the flow Hough subsequent appropriators, by others, and some supply, reason of the excessive water with aid irrigate sloughs, few dams in the channels and could with recognition expense, by but or little trouble this court by appropriations subsequent will made locators others, thrust in order to them avail quantity them, necessity selves awarded changing application their methods of and use of the great ditches, etc., water the construction of ex pense, avoided, all of which would be it not for the were subsequent such interference of claimants. For this rea son it is that maintained of the later settlers appropriators subject acquired were to the methods inception in use at the time of the of their interests. This feature, however, principle is similar in to that of the may farmer who at first have needed but 100 inches yet carrying constructed ditches three times quantity, using manner, it in a wasteful and which upon by ditch, he still insists reason of the when constructed, being capacity first carry of sufficient supply. excessive It is well settled that such a claim successfully cannot be maintained: v. Seaweard Pacific (88 however, L. 963). true, Co. 49 Or. Pac. It is necessary no certain method to constitute a valid appropriation, long applied so as the to- water has been use; may a beneficial and this be done either ditches application, other methods diversion and such placing sloughs, as the dams in the streams and thereby overflowing land, subirrigating it, as the Porter, (70 be: case McCall 42 Or. 49 Pac. 976).

71 Pac. say, 44. will it do to But that because in some cases irri gation by damming sloughs, with but had little Hough v. Porter.

420 Or. [(cid:127)51 causing expense work, large the excess of spread methods, supply premises, over the the old origin their which had when there was but little demand correspondingly abundant, supply for water and its country be continued? In this arid such manner of use necessarily greatest adopted will the must insure duty possible quantity Camp v. available: Van Idaho, 752) ; Emery, (89 202 Bass Pac. Anderson v. (C. C.), 14, methods so man 140 Fed. 27. The wasteful light can, early common settlers under the most fa with system use, only privilege a their be deemed vorable permitted merely because could be exercised without right one; injury meth and no to such substantial thereby. acquired ods of use was Owing large proportionate 45. to the little demand and along supply in those and its use Silver Creek branches together general early ’80s, knowl with lack of edge subject throughout state, experience on doubt, common; were, wasteful methods that time no throughout years improved means the West but of recent use, scarcity supply has made have come into necessary. is use The more economic result use and needs law well settled that beneficial has become capacity appropriator, the ditches and not the of applied, limit of the quantity first is the measure and 30; Long, Kinney, appropriators: Irr. Irr. of such 55; 263; Wiel, Rights, p. v. Seaweard Water Pacific §§ 963) ; (88 Wright, v. L. Pac. Co. Or. 157 Gardner 286) ; Dangberg, (91 Mill M. Co. v. Pac. Union C.), 9; (C. (C. C.), 11 Bassman 81 Fed. Anderson v. During freshets, spring prior to Fed. 26. flowing year, chan quantity May 10th each junction the Main and below the of the stream nels sufficient, properly when forks of Silver Creek West irrigate used, economically lands all the distributed vicinity; appears to and there farmed heretofore controversy respecting the use of water earlier be no Jan.

than about that date. The season in the vicin- ity Creek, begins rule, Silver April usually as a 1st and July. crops produced ends in The largely consist of nat- hay, ural joint, top, such as blue red and other native grasses. A appropriations

46. number of the by were made parties hereto, predecessors long their before the lands were filed acquired. or title thereto In this argued right it connection is that a to the use of. water necessarily inception only filing has its from the date the placed right person claiming on the land. The of a an appropriation of water cannot be tacked to a that of squatter, who, mere may irrigated land, while he have has Schaffer, (33 abandoned it: Low v. 24 Or. 239 Pac. 678). squatter upon public

47. But a may, lands even parol, interest, transfer his claim and may it whatever be respect, another, rights in this and the of the subse quent purchaser and of interest, his successors in if as prior serted under appropriation, the doctrine of relate back appropriation by to the date of person the first may privity with whom there abe of estate. It is well entryman settled that necessarily need not a have complete title to acquire the land in order to a water right therefor.

48. A land, supplemented mere claim of “appropriation water, diversion and of the is sufficient convey to entitle him to to another such interests as he may have, appropriator whether such squatter be a mere lessee, person possession: or other Rowland v. Wil liams, (32 402) ; Or. Pac. L. Seaweard v. Pacific (88 963). 49Co. Or. 157 Pac. question developed by

49. Another the facts to follow rights acquired is that some of the were in the swamp lands, respect of lands reclaimed as to which it is maintained that the use of water thereon was not irrigation. legal essential to their reclamation or The n partic- depends upon the facts of each such use effect of may Merely re- land have been because the ular case. necessarily deprive swamp it of land claimed as does irrigation. the need of may- reclaimed that it has been

50. The circumstance required particular time it presumption at a that raise testimony irrigation; to that effect no water for ascertaining purpose of for the admitted in evidence productiveness. But quantity its of water essential to in fact reclaimed appears the land has been when it possessor from the sufficiently to a deed its to entitle section, implies land has state, if arid in an moisture, thereby 're deprived of its excessive been agricultural other the same condition as stored to lands respect subject vicinity, same through it, appropriation flowing or in an to the stream irrigation. supply for its source of water from brings relative Us to a consideration 51. This par By stipulation the parties. each of priorities of the respective tracts of the be the owner of ties is deemed to belong them; when alleged the dates as to to but land to exception of acquired, with titles were and how the others, two property and one or of the Porters of being only testimony to disclosed, directed are not the water and to when the first settlement dates of appropriations, considered The was first diverted. indicating (the their numbers the dates made the order of acreage upon together which priorities), with relative en each is they inches to which applied and number of titled, are as follows: Hough’s

(1) to the lands described title Anna C. 1878, May, inception and the belonging her had its irrigation initiated June thereof was appropriation for placed channels in the various 1, 1878, by means of dams diverting for flowing premises, water therefrom over the been land, date its use has irrigation since which interrupted by claim- continuous, except adverse when Hough 423 Jan. 1909] of this method the lands use on ants. Settlement 1873; privity irrigation date but the from the water occupants is established between the various of estate antedating May, were 1878. There settlement as to irrigated farm than 200 acres on not more brought irrigation a rea- land, under within which were as in- water thereon time first use of after the sonable require not exceed inches The lands dicated. irrigation feet, proper there- water, for the second 2% stream, right against except that all on the of, first as a right Porter, whom such coincident with of John C. time. y¿ 14, title N. (la) Porter’s section John C. E., 1877, S., range June, township back to relates appropriation first of water thereon to about 1, applied to a beneficial use within June 1878. There acres, irrigation inches time in the a reasonable 1878, water, right 1, to which dates from June Hough. with of Anna C. It and is coincident Bunyard premises either Branch or be diverted Creek, ditches therefrom. Silver Egli’s (2) lands are situated all of Lucinda above named, except Durand, parties those of other Geo. acres, title and consist of about 400 to which relates the water was located back 1882; rights attaching April, date, her as of that acres, requiring in the used 120 inches. (3) Conley’s Marion title to his land relates back year irrigates which he 240 acres. It devel- ops that he made a cut from the main channel of Silver “Conley into what has since Creek been known as Branch,” year swamp 1877; to drain some land- and some effort was made at the trial to establish appropriation of the water as that date. It is not clear, however, swamp as to where this land is situated. strongly The evidence tends to show that was on opposite Creek, side of turning Silver and that

water from the lands in another he above direction was swampy thereby able to reduce its character and cut hay crops some thereon. is not shown that this con- It any part present stituted of his 320-acre tract. But it clearly satisfactorily May is established that about 1, 1880, opening up Conley he made a cut Branch of Creek, connecting thereby Silver it with chan- the main nel, through premises and diverted the water it to his irrigation purposes, since time he has con- stantly through used water this channel in the mentioned, purpose of his lands to the extent for which aggregate points an of 100 inches of Conley premises diversion from the Branch near his is quantity sufficient. To this he is entitled as of the date last named. (4 6) testimony

52. H. Geo. Small’s is to the effect year the title to most of his lands relates back to the 1878, by having time, reason of settled there at that on account which he claims a water from that ownership, however, date. The averred have its inception only years prior to the commencement of this suit. He claims to have constructed the first ditch point which was taken from the stream at a junction known as the with Silver Creek of Island Branch Bunyard Branch, and that he constructed the other year Fifty two ditches in the 1882. inches of the water Bridge But, claimed is from taken Creek. after a care testimony, ful examination of the we conclude that all except spring the first diversion was made in the procuring purpose and made for title to about e 1,800 600 acres under th desert land act. He has . land, acres of of which we find 600 consist of what claim, appear once his desert filed on in 1884. It does not finally from procured the record where he his title to his lands; but of the exhibits in one evidence discloses all his land in section 15—600 acres of which he claimed long owner, for a time to be the but the title to acres Hough v. Porter. Jan. 1909] Lutz, by (Small finally acquired Lutz of which was 825) was by 421, 69 Pac. sold 67 Pac. Or. 570: swamp land, parties as one different in 1885 to State part which, N. the N. of the W. W. by E. of the E. was deeded the State to Small S. S. ]4 14» swamp strongly disputed It that land act. under irrigated any lands, any attempt do made to Small so, prior fact acres thereof were to 1884. The that 600 swamp attempted procured claimed and to be under strong irrigation land act that no there affords evidence prior Moreover, appears of was made to that date. that acres the land which he claims to have irri gated belong him; at that time did that not to he was trespasser thereon, being procured subsequently this land by government; the defendant Lutz from irrigation finally and claim therefor Small was attempt procure The title to the desert abandoned. tract, by Small, land as admitted claim discloses no irrigation to water well could have been made for the prior filing of that tract necessary as it was thereon, conceded, which is to make affidavit to the effect any that the land had prior not in manner been reclaimed to that Bettelyoun, date: Houck v. Dep. 7 Land Dec. Int. 425. Coupled with this

53. the testimony circumstance is Porter, S. A. D. evidence, other with to the effect that appropriation no prior was made Small How 1884. ever, strong there tending in some evidence to show a diversion and use him of the water in 1881 or 1882. But preponderance testimony we think a clear that, establishes outside of the lands then deemed too swampy use, deducting and after the 240 acres of land, Lutz’s not more than 300 acres were intended to irrigated by Small, including property, the island at completion the time of 1884; of his ditch in nor did he intend to increase his prior time year delay 1895. For assigned, and, no cause is being increasing appropriation unrea- delay total allow- to 190 inches as sonable, is limited his use prior being acres, the water diverted ance for 360 appropria- subsequent year which renders by others of waters applications of the excess tions (88 157, 49 161 L. Co. Seaweard valid: Pacific may 963). 250 of water At that time 200 or inches Pac. necessary, possibly more than have been deemed through at which the ditches quantity was then diverted abundance; but, period claimants were few right be stated, use of water must to the as before proper quantity necessary for the care limited to the right ac- land, was for reclamation of which the per appears It more than one-half inch quired. no actually purpose, and less is needed for this even acre large quantities. suffice where the water is used in think, inches, therefore, that 150 limited in its use We acres, actually quantity to 300 is about the intended diverted, required all that 1884 to and is Small, and, prior 1895, farmed lands then claimed to attempted was and for which no intended or diversion prior made to 1884.

54. In addition to the amount 100 inches were above irrigation June, 1882, diverted and used for Small of the island Island Branch and the main chan between nel, tract; which Lutz about half of was used tract, appro and since he lost the Lutz this inches of priation remaining ample lands, are for the not exceed ing acres, belonging island, to him on the dating irrigation thereof, quantity he is entitled for the quantity acquired from June None of 1882. under (1882) appropriation can be used elsewhere without prejudicing rights, others’ for which reason he is limited use, needed, to its when to the lands mentioned. There satisfactory is no evidence of intended use of more irrigate than sufficient to the lands covered this diver prior sion when his second ditch was com- Jan. 1909] given, we are satisfied

xnenced, which, for the reasons appropria- begun The second the latter date. on inches, consisting were 50 of which (1884), tion 1, 1884; he is Bridge Creek, dates from June from Bridge from Creek of this date to 50 inches entitled as branches, or its inches from Silver Creek therefrom, point lim- and is of diversion measured at the irrigation of 300 acres. in its use to the ited lands, consisting (5) A. D. Porter’s title to his S. opinion, acres, back described in the former relates irrigation pur- year The 1880. first diversion poses, continuous, for which use thereafter was was made May, 1883, prosecuted completion until 240 irrigated, requires acres were for which he not to exceed proper thereof, 100 inches for the inception May 1, quantity which had its 1883. To this he is entitled as of that date. (7) Buick, Buick,

55. Walter C. Lulu Corinna Corum Brie, Corum, minor; La Corum, Isa Jewell D. and J. M. through Small, predecessors interest, their the are belonging owners of the them, lands described as they originally acquired right through which a water what is ditch,” known as the tap “Buick-Corum-Small ping a channel of Silver Creek in the S. E. of the N. E. 1/4 1,4 21, of township S., range section 28 14 E. This chan diverges nel from Silver Creek near the center of the S. of named, the N. E. of the section and returns 1/4 % to the main stream near the northeast corner of the N. W. again point section from which it di 1/4 verges, and below it “Bunyard which is known as the Branch.” The begun construction of this ditch was March, 1885, completed following year within a reasonable time from the commencement thereof. Their rights to the acquired water thus March, relate back to 1885, the date of the commencement of its construction: Bennett, Nevada (45 Ditch Co. v. 30 Or. 86 Pac. 472: 777). Rep. Am. St. testimony respecting The the an estimate from ditch varies capacity carrying testifying engineer Moore, an Mr. inches. 229 to point where surveyed a it at he case, that states the capacity, he carrying thought smallest its he being him made survey inches; the at 229 estimated testimony testimony. The taking the time before a short neglected for however, has been the ditch discloses, thereby re- capacity years, and the past or six five fact, probably due to This is one-third. about duced testimony, the owners some of as disclosed receiving a years during have been recent ditch Bunyard through Branches. supply large part of their fixing capac- evidence, justified, under feelWe acquired appropriation ity this ditch which, thereof, through the intake inches at it seepage for a dis- allowing evaporation and loss it reaches Small miles before of three or four tance points ditch, at the farm, deliver last should on the inches, which, prop- if 270 to of use somewhere from used, ample economically for the erly is distributed irrigation it. lands under of all the irrigated by Buick and Corinna

56. There is C. Walter Buick, wife, 20 acres 120 acres from this canal and minor, Bunyard Corum, Lulu from Isa M. Corum Creek. irrigate Brie, together La and Jewell D. Corum acreage irrigated acres; a like has been for a number years by partA J. M. Small. of the'lands of each appear supplied parties these to be with water from Bunyard Creek, including new different branches of branch; quantity ditch taken out of this in this used acreage being applied manner on which is clear. M. J. states that he uses in about Small 60 inches from the ditch and 100 inches in all. It clear, however, through acquired that their has been source, they rely and it must to determine the quantity may entitled, each of them well as inception rights, as fix which, the date of the of their Jan. 1909] They tenants began are stated, March 1885.

as right: Moss v. common, and water as to the ditch both 743). Rep. (41 50 Am. St. Rose, Pac. 666: 27 Or. 595 them in this controversy between or issue is no There through and from suit, and, claim the same ditch as original appropriation, no decree should be same rights. their relative entered as to suit, against parties the other to the Corum 57. As required quantity in their wife are limited use irrigate acres, not to exceed the use of inches of water, point from as from the of diversion measured may Bunyard Creek, the case the ditch or channel of as Corum,' Brie, Isa be. Jewell D. Lulu Corum La jointly quantity are limited to a like amount and Corum measurement, under similar is also J. M. Small. suggested change It 58. is that defendants cannot use, any part it, their or from the ditch to the chan creek, thereby nel of the make use of Créek Silver Bunyard Creek, mingle with those waters Bunyard Creek, other users on and take water out point; doing they some other so their lose applied. attempted extent thus to be used and It settled, however, ravine, any gulch, hollow, channel, may well as the natural be used in transmission premises by appropriator: water to his Sim Winters, (27 mons v. 21 Or. Pac. 7: 28 Am. St. Rep. 727). appropriator original

59. The can use either the canal constructed, or ditch as channel, other for the purpose conveying any point of use. they

60. If or either of elect them to use water from Bunyard Branch ditch, in lieu difficulty of from the measuring arises, to obviate which allowance must evaporation be made for and loss the different meth ods of distribution, together diversions and with the added distance which the water have to flow in order premises to reach through their these channels. In order Hough Or. v. Portee. proper estimate contingencies to we think these meet acreage by the quantity used thus the in difference the through any and, other applied, if used it is which to, that original canal alluded their than that of source irri- land each acre of be deducted inch should one branches, ditches Bunyard or other gated the from aggregate the water leading therefrom, the that in so orig- which the from channel passing the intake of the Bunyard the head of the into was taken and inal ditch any in by at time exceed them shall as used channel appropriation is aggregate, far as their use and so using by inches, concerned, when needed others along its tributaries or or from the creek channels. rights only urged respect their It

61. is part when the were entered or cultivation of the lands rights dug, and that of each of ditch was first parties limited time this ditch are interested in acquired lands of each were and the when the may the rule else commenced. Whatever thereof very where, question clear and is set rest in by opinion Mr. Justice Nevada Ditch able Wolverton, (45 Rep. Bennett, 30 Pac. 472: 60 Am. St. Co. prominent among many 777), feature was where this points upon. It was there held a bona relied fide purpose, intention devote the water to a useful required appropriator, comprehend is of an use through persons upon lands to be made other possessions appropriator. other than those of the appellants 62. It is also maintained counsel that, since the Buick ditch for some distance runs through property Improve of the Occidental Land & agreement ment and was constructed under a Co. written to the effect that the construction of this canal and con premises permissive only, tinuance thereof on those is acquired by appro therefore no substantial priation through and diversion this source. This ais Jan. 1909] regard however, but the which none with

question, Improvement Company posi- a are Land & Occidental pleadings, complain; and no issue made tion company any proof offered thereon between this nor is ditch, through this and the users and claimants of water circumstances can no bear- for which reason these have ing parties herein. on (8) rights P. Chrisman’s and C. Porter’s to the G. J. belonging opinion lands the described in former (not including any by 14) them owned Porter in section acquired respective were and title to their titles are as 24, follows: The y>S. of the N. of the W. section % 23, y, N. E. of section and the S. of the N. W. of *4 range 26, township S., E., M., section 28 14 W. were en- by tered Porter under the act desert land in 1884. The y2 of E. yfc W. the S. and S. E. of the the S. W. % 14 all part and N. y, except E. of S. the W. the 14 thereof situated, on which the town of Silver Lake is of 22, range township S., E., by section 14 was entered irrigation Chrisman 1884. in The water used in the through these lands was obtained what is known as the ditch,” tapping “West-Porter-Martin at a Silver Creek point 21, township S., near the center of range section E., begun September which ditch was first completed following during year, and the and since which irrigation time it has been used in the of the above lands. quantity The of water used these lands and to which right acquired sufficiently appears capac- was from the ity the ditch as it is evident the ditch was used to capacity, applied its full was of which needed and irrigation the of the farms mentioned. The ditch has a carrying capacity inches, the intake of 200 which quantity limit ap- should the allowed under their propriation of the lands described exceed, acres, aggregate, extent of 300 not to the inches, needed, when to which dates from the September, time of the commencement of ditch in 1885. Portee. appropriation therein ditch and that this

It is insisted by known what is made was by Porter Chrisman alleged cor- Irrigation Company,” an the “Silver Creek suit; so and it is party not a poration which is however, evidence, fails The below. the court found corporation under perfection of the to disclose identify appro- clearly state, nor does laws of by the contem- owned to be priatión one intended as the sufficiently established corporation. it is plated But Porter, Chrisman, year begun the ditch following year, others, completion and use its all the acquirement of subsequent respect Porter, parties therein Chrisman they rights therein, ten- including are which, the water in common. ants 160 acres (9) is the owner Jackson

63. C. C. 1886, by irrigated June, means since land, he has seepage water” from termed “waste what is might be adjoining premises. there his While farms flowing premises from lands seepage some water, above, if those above would be no waste there required law. so- methods The the economical follow evidently has been the water diverted called waste water quantity parties above him in excess of the needed. through Conley By surplus Branch and the use of has, him, Jackson without branches over the lands above as, right objection, a an amount thereof secured to such together seepage mentioned, properly taken with the will irrigate named, inches of the 160 acres not to exceed 80 surplus, right 1, which 1886. such to dates from June (10) H. title to the 160 acres described W. McCall’s belonging year 1887, him of which to took effect irrigated by taking 120 acres have been water from the high-water flowing through premises, channel through naturally May until water flows there 10th year. is, each of this water he To use common stream, date, with others on the until that .all entitled Jan. 1909] year, May each 10th of 80 inches after exceed

and not to April 1, 1887.” from which dates to rights attached Lane’s (11)- and Jennie B. F. Lane’s 1888, May 1, belonging them to described as to land necessary proper rights the water and their year. May the same 160 acres thereof proper require of water for their 90 inches The lands Branch, through Bunyard irrigation, which is taken at the they the date named are entitled as of to which . point from branch. diverted (12) George is. situated on Silver 64. Durand’s land parties. He seems and above all of the other Creek 1878, a a claims diver have initiated title thereto but years prior only than 10 sion of the for more A more than the institution of this suit. diversion years prior (April 1, 1890) subsequent use thereto showing established; an no was offered but evidence Having facts, earlier use. established these he made prima showing of adverse user. facie showing having established, 65. This been the burden of that such user with was not substantial interference thereby parties of others was shifted to the questioning Wright, such claim: Gardner v. 49 Or. (91 286). Pac. This want of substantial interfer

ence, however, clearly by proof established shortage among effect that theré was no material of water below, prior those to 1895. For this reason he neither parties relying years’ nor on 10 adverse user position are in a to maintain this defense: Bowman v. Bowman, (57 546). 35 Or. 279 Pac. Eights acquired prior ap

66. the use of water propriation possession and adverse are not inconsistent: Wright, (91 286) ; Gardner v. 49 Or. Pac. Davis Chamberlain, (98 154). Pac. Since, therefore, pleaded appro 67. Durand has an priation adversely and use thereof for more than 10 years prior suit, alleged to the institution of this he has

434 there- use and continuous first diversion the date of although which, proof 1890, 1, April since after pos- by adverse thereto his title to establish sufficient not appropri- ampié date of his use, fix the to is session he takes he have ation; and such rights are appropriator his priority. As an of his order inches, limited to the 160 to the extent established April 1890. acres, from irrigation and date 480 Improvement isCo. Land & (13) The Occidentál 68. 880 Of this 2,200 land. acres of amount the owner S., township adjacent to, section in, and acres are irrigated from Silver range 14, have never been belonging company were irri this lands Other Creek. Bridge Creek, situated gated and are from Silver range E., S., 16, township Creek, in section acres, require water for exceeding 80 inches of forty hundred and proper thereof. Two Creek, irrigated which 120 Silver acres can be from Bridge irrigated, stated, from Silver and acres were right year Creeks, May, 1889, The 1893. from by cannot be deemed for alone the use of water nonuser by prescribed period the statute of feited short of Marden, Dodge v. 7 Or. 456. for real actions: limitations extinguished right may become 69. But such right, showing or abandon the act an intent to surrender having right which, person if the ceases its use after lost; year, but the facts essential for one his interest is company to a this are not established forfeiture shown; proof. but The nonuse from 1893 to insufficient. constitute an abandonment alone is To right, concurrence of of water there must it and an actual failure in its intention to abandon use: Cyc. inches, company 4. This should be awarded 80 Bridge Creek, be taken from either Creek Silver May 1, dates from 1889. (14) owner, appears 70. E. D. Lutz to be the and in possession, (4 of the E. N. W. the N. E. 1/2 Hough v. Porter. 435 Jan. 1909] 10, in town- all 15 and the N. E. of section of section % S., range E., relates back ship 14 the title to which 28 During year some of the summer of 1890. irrigation applied by of the lands water was him in the 15; years three later he was ousted in section but Geo. charge irrigation Small, all these took H. who claiming lands, ownership except thereof as to acres, timber east 80 then held J. Harrow as a C. possession culture claim. Lutz remained out of until hearing herein, about the time of the when it seems he prevailed court, again resuming possession. See Small Lutz, (67 421, 825). v. Pac. Lutz Or. 570 69 Pac. irrigated lands, for a time short these inter- but was rupted prevented continuing by Small, who, from wrongfully possession, irrigated while premises crops and raised thereon. The absence of Lutz not hav- ing voluntary, having been but been an enforced removal therefrom, he cannot be deemed to have abandoned his rights to the use of the involuntary water. An absence from land does not work a forfeiture of interest may owner have therein: Smyth, 47 Or. 573 Huffman (84 Pac. Rep. 938). 80: 114 Am. St. permit 71. change To Small to quantity use of this to other injury Lutz, lands would work an as well as stream, to others below on the per which should not be mitted. change While well settled that a place of use and of use of appropriator water may an in some instances permitted, right always such is changes limited to impair do not of others interested in the water appears the stream. It that 100 inches of water is proper irrigation sufficient for the land, right of this quantity which May, 1890, attached in when first irri gated by Lutz, and is limited in its use to 200 acres. (15) right F. M. Chrisman’s to the S. E. of section %

12, township S., range E., irriga- and water for its tion, May 1, relates back to to which he is entitled irrigation 60 inches for the of 100 acres. The water through Bunyard either purpose be received

for this necessary. through both, Branch, if Conley acres, consisting land, (16) Mary Brown’s C. appropri- November, on in was settled inches, thereof, to the extent of for the ated entitled; and her 1, 1893, quantity she is May of that date. attaches as Kittredge’s acres Mary her tract of 640 (17) title to J. State; alleged procured but her from the been to have with the State’s shown to connected interests are not testimony first set- it to have been The discloses title. definitely fix 1885; proof does not tled in but the irri- water was made for date.when the first use of relying upon a gation purposes, evidently her claim as owing owner, which, riparian to the fact that until recent marsh, part years of Pauline was not the land was a however, clearly appears, It that it has been established. irrigated placed means of dams in since 1894 spreading stream, the' water over the channels of the premises acres, extent means of to the which irrigated properly ditches could be with 160 dams and her, water, quantity will which be allowed dat- inches of ing 1,May a 1894. the land is low and of from Since nature, quantity swampy we believe the indicated is am- irrigation. ple for its right

(18) P. land him W. Jones’ owned be- gan 1893, June, appropriation water for irrigation June, 1894; right thereof in the water therefor dqting Fifty from that time. acres of his lands are irri- here, gated Creek, from the waters of Buck not involved Creek, and 160 acres for the from Silver which he is entitled to 80 inches of the waters of Silver Creek.

(19) acquired E. McKune’s lands were first C. right year his to the use of water the’ irri- for. gation thereof, inches, acres of 100 to extent of 50 began May year. rights, therefore, in- that His attach as of date.

Jan. 1909] were rights lands to his (20) Henderson’s E. K. 72. swamp land Oregon as through the State acquired riparian range are S., 15 E. None township section proof is No any Creek, of its branches. toor Silver land, character of respecting the offered irrigation, of, suffi susceptible needs it is whether appear any does it decree. Nor which to base oh cient rights any the controverted claims that he proceed necessary party to this waters, that he was dismissed as ing, the suit should be reason prejudice. him, without Hays, Hays, Hays, Plaintiffs, John H. J. M.

73. W. voluntary Geyer trial took a nonsuit. Since A. C. brought parties in, it these had the court ordered they them, and, in the event refuse to dismiss as against appear, declined to to enter such decree further rights with them as would have determined their relative however, Being parties. dismissed, those of other disclosing proof they necessary par are and the hereto, grant acted court within its discretion in ties ing accordingly the nonsuit. Their will remain undetermined. defaulting defendants,

74. As to the a decree should parties be entered in favor of all other herein. It is parties that, maintained as to the named not who have appealed, respecting no decree can be entered here their rights more to by favorable them than as entered the general It trial court. appeal is the rule on will it presumed appealing be that as to those not is the decree satisfactory will not be disturbed: Seaweard v. Dun can, (84 1043). 47 Or. 640 Pac. But for the reasons given inapplicability hereinafter general for the respecting pleadings, rule plaintiffs’ George in re H. interests, suggested Small’s by rule the respect counsel ing rights parties the appealing not adapted is not to kind, suits of this accordingly will not be invoked. Or. limited, appli parties in are each the 75. The hereto adjudged them, specific tracts to the water the cation of except applied, such upon it has heretofore been which practicable change may the be as where it instances injury to place substantial others of use without whose changing rights determined; say, byif here that is to are by others, place use, is needed when water changing place returning quantity after the stream compared previous application of use as to its is substan diminished, if, by change, tially reason of such point “run reverts the stream or channel below the off” by another, thereby reducing supply such diverted at point, necessarily operate injury it must to the rights change party, of such other must not Eights (2 permitted: Wiel, ed.), Williams §47; Water (97 589). Altnow, v. 51 Or. Pac. Again, by each,

76. the use of the water for reasons given cited, in the case last must also be limited its previously use to number of acres of land applied, except part at such times as the water or some by others; thereof not be needed and the not owner requiring permitted complain use its should not be application its to a beneficial use others interested. words, In other required all times that the more, disposal one must be at the others rights the order their relative thereto: Mann Par v. ker, (86 598) ; Wright, Pac. Gardner 49 Or. (91 286) ; Altnow, Pac. Williams v. 51 Or. 275 (97 539). Pac.

It is maintained counsel for Geo. H. Small that since plaintiffs, reply trial, in their as well as at the admitted prior superior that Small is in time and to them of a water, extent constant flow of 500 inches of the recognize rights the decree must accordingly. If this plaintiffs were a contest only, between and Small a decree could be entered in that preju- manner without dicing of others involved, whose interests are Jan. this into tenable; came might but Small position be

this purpose court, the for the issued of order suit under all, view, not a adjust with enabling of it to effective, but will be entry that only a decree might trial The obviated. multiplicity be of suits a that 41), Comp, fol- authority it having (B. & C. this court § power it with all jurisdiction carries this lows making effective. order of such essential to the neglect then, parties If, or refuse of the some 77. having so, rights, or, asserting pleadings done their file presented that an enforceable them in such manner have order, harmony spirit decree, with or one in entered, appears that the cause has been cannot may, submitted, the court taken and tried evidence discretion, either direct of its sound in the exercise proof, treat pleadings to be amended conform amended, accordingly. them as and enter a decree Such discretion is essential to the effective exercise of jurisdiction equity class cases. Water suits are, sense, complications generis; a .sui character, many litigation developed by of this intricacies years, rapidly all of late when available lands are becom ing settled, resulting in most instances demand exceeding give supply, necessarily rise to new questions practice, the statute nor aided covered by precedent. courts, then, The are confronted with exercising dilemma either their discretion such making exception matters an to that well-known maxim, equitable jurisdic is the foundation of tion, “equity will not suffer a be without remedy.” good necessity

A illustration of the at times of deviat- ing practice, from the usual course matters involv- ing kind, may controversies of this be found in Kansas Colorado, Sup. (22 185 U. 552: Ed. S. Ct. 46 L. 888). attempt In that case an was made to state all the thereby complaint facts in the to secure determina- legal points The de all demurrer. tion of involved having fendants, demurrer, pleaded, by admitted facts court, the usual if it had followed that the it would seem legal cases, practice determined the in such would have taking necessity parties without status of the considering phase testimony. Justice But in Mr. Chief (page page of 22 145 of 185 U. S. ller, Fu 838), says: gen Sup. opinion L. Ed. in his “The Ct.: eral rule that the truth of and mat material relevant requisite precision ters with are set forth admitted involving demurrer; magnitude, but in a case of this far-reaching questions grave importance, so and it rule, apply does not seem to us wise to must we appears equity to It decline do so.” thus that courts of necessarily are not all bound in cases the rules of practice usually Now, held, invoked. as heretofore may parties interested, claiming court any all or direct in, subject-matter litigation, brought interest require interplead them to with reference each (95 732-749) ; other: 51 Or. 367 Pac. but it cannot make plead any them certain facts. It must it them leave pursued respect. determine the course to be in that if, rights But exercise order, of such under the such parties default, properly plead proof, fail or to offer they incurred, necessarily assume the risk thus and are .impelled follow; court, to abide the result to and the discretion, may exercise either enter a decree its. affecting interests, not, just their deem equitable.

78. We can calling conceive of no case for the exercise stronger discretion of this character than the one under begun consideration. It February, 1900, nearly years ago. nine It by Hough was first instituted against Porter, A. S. D. testimony and the taken dis that, owing closed to the interference in the use parties suit, Small and others not decree between the contestants there would be futile. For Hough Portee. Jan. 1909] below, exercise its the court sound this reason Creek, discretion, persons interested in directed Silver tributaries, branches, parties, awith its to be made respective speedily as view to determine their practicable. complaint accordingly, The was amended together parties summons, and all made with served copy with a of the order of the court. Of those thus served, defaulted, neglected some others to offer proof respecting rights, pleadings their while the of some imperfect, plaintiffs, are and the as well as some of the defendants, neglected properly have to frame issues be- themselves; greater tween and added to this and problem developed by plaintiffs, more difficult mak- ing respecting rights, admission alluded to Small’s only unsupported by evidence, admission is not but it is subsequent disclosed that Small is in time and right plaintiffs Hough inferior in Conley, and as right well as Porter, súbordinate to the of J. C. and sub- sequent right to 150 inches of water to that of A.S. D. if, Porter. Now because no issues are framed between plaintiffs, some of the necessarily the court must refuse determining enter a rights, decree their relative it power would litigants, have been within the after entry requiring the order of the court them to be (cid:127) brought suit, completely into the to have its defeated purpose by joining plaintiffs making as and A. D. S. defendant, absurdity Porter the sole of which is obvi- ous.

Concerning point, plaintiffs’ the second if on account of Small, admissions in aid of a decree must be entered in right them, his favor for 500 inches as a and against first Hough Conley the same time and a must be awarded prior right Hough’s Porter, as to S. A. D. and decree rights equal equity are with coincident in time and Porter, those of John as must done under evi- C. be - dence,"then de- what follows? John C. Porter must be right against creed a first H. Small to 100 inches Geo. Hough supplied) D. (after 40 inches are A. first S. Small’s against superior right awarded a Small Porter must be Then, pursuing 100 inches of the water. to another urged by Small, plaintiffs’ admis- course on account of sions, he his first it would be decreed that after received flow down to the Por- 40 inches he must let 200 inches against Hough ters, Conley he use but that as during left; the low-water sea- inches of what is but son, 500 inches in the when there are not more than stream, be entitled to 300 inches of this Small would turning remaining quantity. Then, 200 inches on they begin using Porters, as soon as would down to decree, demand, it, Hough Conley, under the would have, exact, the Porters let it flow them, and as soon as the water would strike down to 1/ again rightfully Conley farms it would quota full of 500 inches of claimed Small to make his granted, Then, request water allowed. as soon as this require turn 200 inches loose the Porters would Small to them, an anomalous and so on ad Such infinitum. might arisen if all the had been condition have separate suits; ludicrous determined in but would be the facts disclosed in to accede to such demands under this, parties all the are before the case like where by plaintiffs in favor of can court. No admission Small necessarily recognized be when such concession would injury others whose interests are work to the material greater privilege no in involved. Small can insist respect co-plaintiff; this if were a and whether than he defendant, recognize plaintiff the he be treated as a to favor, only if extent of admission in his even Hough awarding right prior Conley, would, as shown, interests, be inimical to the Porters’ who are not parties plaintiffs’ concessions. Again, Porters, pleaded by it is the as a defense

79. collusion, against plaintiffs Small, they are in respect they to which it is averred that have entered Hough Jan. 1909] decree conspiracy to to obtain a

into enable Small right against the all on a first 500 inches permit flow stream, the water to in such a manner as to through ditches, headgate the of Porter’s around the McCall, Kitt- premises and onto those irrigation thereby redge, them water for secure to they might re- purposes unable to which otherwise be cogent tending testimony support these There is ceive. averments, especially with when considered in connection showing proceedings parte case made in ex (90 1110). Small, From of State ex rel. v. 49 Or. Pac. diverting testimony appears it was much that Small than, required of his more water flowing lands, surplus lands of which was onto the depriving named, thereby plaintiffs the Porters thereof; parte in the ex the use and the made showing proceedings discloses this method of diversion year pursued by use been each since the insti- has Small But, this suit. such tution of whether collusion exists not, recognize clear that demands made plaintiffs’ reply rights, together with an Small’s trial, admission to the same effect made would have the result insist was intended which the Porters alleged conspiracy. The situation as thus devel- oped only wisdom demonstrates of the course pursued by requiring persons the trial all inter- court parties, ested to made that much must but discretion applying be allowed the court in the facts to the issues parties, contemplated intended as to as well those making they the court in the order under are here, tried before us. Since cause is de novo this necessarily discretionary powers court has the same respect; discretion, and in the exercise of this there- fore, may, parties properly the court are when before it, pleadings deem the amended to conform to the facts presented by the record. Hough owing likely But, to arise in to the difficulties

80. involving questions as usu of a decree such enforcement should, class, ally develop below in a suit the court .of rights parties, their protect all the in order to supplemental interest, decree or enter successors in such and, purpose; if may necessary for that decrees as be it, necessary by should the court time deemed may person sheriff, require officer or as or other including engineer designate purpose, an or other points of assistant, may required, fix at' the be proper places boxes or head-' or other suitable diversion being able, with gates, in accordance with a view to regulate, measure, decree, properly and distribute decree, may who, be under water between' those thereof, for which should the costs to the use entitled proportion against as the court each in such taxed just equitable. deem evidence, clear, this suit was It under

81. wrongful by the in necessary instance in the first made during Small, who, without H. terference of Geo. above season, the stream diverted most of the low-water that, in premises an extent and to such A. D. Porter’s S. necessary quota, it became order for Porter to receive quantity she plaintiff to which deprive originally entitled, thereby precipitating suit -the brought. A. D. Porter we think S. For this reason George Small, Porter, against defendant H. John C. they courts, for which their in both are entitled to costs hereto, judgment. parties we The other should have adjustment think, sufficiently the final are benefited rights justify paying each in his own costs. of their the court below should be It that the decree of follows entered, parties modified, all the as between and one establishing defendants, hereto, plaintiffs or whether harmony with the views here ex- their relative pressed. Modified. Hough v. Porter. June 1909] 29, 1909. June

Decided Rehearing for On Motion (102 -) Pac. King opinion court.

Mr. * delivered Justice hearing, Small, at the former his counsel H. Geo. Webster, Stone, whose Lionel R. & and aided Benson petitions for a re procured, been services have since we are hearing, support it is that insisted in which error, findings' Small’s (1) as to the date of in our in him; appropriation quantity of water awarded and the theory originally upon the (2) that the case was tried and owners, parties riparian were with that each suggested court, it this in reference that to is application of what is known its construction Act, promulgated a heretofore the Desert Land doctrine that, ruling, unknown; anticipating not such testimony was not as would otherwise have same adduced been, by is that the case reason of which insisted taking testimony, reopened It should be for further however, typewritten announced, opening is in argument, fault found with the that no is intended enunciated, making law as consideration thus further unnecessary. Boquillas thereof Land & Cattle See also: (29 Curtis, -, Sup. Rep. 493), Co. v. 212 U. S. Ct. Porter, Hough (98 1083), where Pac. is 51 Or. point implied approval. on cited this with petition parte showing accompanied an The is ex by Small, consisting of affidavit effect he his that attorney, named, appear paid an there hired court, agreed, who him failed to do as and that hearing appeal until the first on he after did learn attorney employed appeared here, thus that neither is, therefore, filed a for him in this court. It nor brief argued was, inopportune time, that as Small at an counsel, employ who, compelled other to' on account of remaining, then the brief time for other reasons give given, position were not his interests February *Appointed 1909.—Reporter. Associate Justice presentation rights; attention essential a full of his fully presented; that his claims were not are, by thereof, materially impaired. interests reason point This aware, we do not well taken. deem areWe however, by being compelled, litigation while pending, change attorneys, to make a often results in party much embarrassment thus affected. But unusual; such occurrences are not and it is obvious that granting to make such inconvenience a basis rehearing, reopening or for a of a cause for further proceedings, establishing precedent could but result in which, place facilitating promoting business and justice, unnecessarily would too often tend to increase courts, delay the always labor of in and the of the early legal be desired' controversies, determination of corresponding without benefits to the contestants. While argument at the petitioner first in this court the represented by counsel, was, re-argument not he at the thereof, represented by counsel, able who filed briefs asserting, clearly in his concisely, upon behalf and both facts, the law and his claims under the doctrine of possession prior appropriation; being adverse and these grounds upon rights. the which he still maintains his Again, situation, counsel, with reference to is not practically unlike that interests, of all others whose his, determined; for, with have exception been with the Moore, appears of J. appellant’s W. whose name on brief only, Rutenic, J. and C. who came into the case after taking testimony the brought the in the suit as first by Hough, Annie appear C. none of the counsel who for the contestants in this court were with connected trial Furthermore, in the court recognizing below. disadvantages necessarily under such circumstances accruing change attorneys, together as a result a in record, with the corresponding voluminous oppor- and tunity oversights preparation and errors in the presentation briefs in and appeal, cause on June pro- for the taken here

extraordinary precautions were appeared only tection, respect, all who in this safeguarding counsel, for the but. (see represented counsel parties not

numerous examining into, carefully 1108), by Pac. Or. 366: 98 testimony synopsis of the a preparation in conflicting claims and bearing upon the numerous interests, parties to the suit. But respectively, of all investigation thorough notwithstanding made petition have, with the respect, in connection we carefully urged, again rehearing points there record, result with hereinafter examined the indicated. that we should have held maintain

Counsel for Small greater here quantity of water than him entitled him, it is that to which asserted awarded reference thereof, years use he title ten adverse has established testimony clearly appropria- an discloses prior application of much tion and actual larger quantity of than the amount decreed entire opinion The main him. reached as conclusion (51 claim an user Or. 433: 98 Durand’s adverse given therefor, 1107), including applies Pac. the reasons disposes equal to, with force of Small’s contention argued point. oh this It with his in connection claim appropriation date of his the admission filing testimony of the declara- Small’s relative tory statement, with his desert land made in'connection entry, having any bearing upon should not be taken as testimony fixing original his the date of his diversions appropriations. declaration, His sworn filed at the stating time, character, after that the land desert in was produce crops irrigation,, etc., would not without adds, portion “that no of said land has ever been * * conducting reclaimed thereon declaration, by Small, This it is admitted was filed and, spring him in the land office when along positive testimony construed with the direct and witnesses, of other to the effect that the ditch con- structed for use on this land was not commenced earlier fixing date, than some it at a later can leave but subject. little doubt agree petitioner Nor are we able to with counsel for concerning point presented. all, the second If or even a cent, large per of those whose interests here involved petitioning ground reopening wrere that on for the might disposed therein; the cause we “acquiesce feel only party but proceeding seeking Small is the to this rehearing reopening Assuming either a thereof. that properly represented, his interests were not and that his sug cause was tried under the adverse circumstances gested by argument counsel, his affidavit and we impelled, response thereto, would to take into con suit, computed sideration the fact that this when with delay petition the effect of the incident to the under con sideration, pending years; has been in the courts for ten delay only, large extent, that resulted, such has not ato far, justice many thus in a denial of whose interests involved, during many years are but that elapsed testimony taken, have since the death has only vitally interested, removed not some of those most important well, say nothing but other witnesses as who, during decade, may those parts have moved to unknown, thereby depriving litigants satisfied with the result heretofore announced of the additional testi mony likely, in the reopened, event the cause should be obvious, therefore, to be It desired. date,

late extraordinary showing in the absence of some therefor, very inequitable permit it would be a few parties remaining vicinity tó the suit property involved, may who be dissatisfied with result, testimony part, to furnish additional on their others, stated, while reasons would not have an equal opportunity to rebut such evidence as thus Hough v. Porter. June injury evident, therefore, less It is be offered. testimony pre- will ensue from decision us, parties taken when all in interest sented and before living available, than and their witnesses were reopen the cause. persons the fundamental law of our land all

Under process protection law in their are entitled due hearing property rights, speedy any and to contro- versy Constitution, Oregon, respect thereto: Article I, is'clearly manifest, therefore, 10. It that after this § dragged along through decade, cause has the courts for a it to the court below for another remand indefinite disregard journey only be to would not the letter and Rights spirit cited, but, of the section of the Bill of effect, And, connection, it to declare obsolete. in this that, during many years it should not be overlooked elapsed proceed- which since the have institution of this ing, deprived some been have of the use of water entitled, they others, prominent were while among petitioner, them this have received much more legal quota, reason, other, than their for which if for no discovering ordinary therefor, without more than reasons justified again delaying we would not be the final determination hereof. potent why

But there is another and more reason petitioner’s respect demands in this should not be granted. only parties, any, The if to which the skillful arguments presented by any sys- his counsel can under logic applicable, making tem of be deemed are no com- plaint announced; they as to the result heretofore do rehearing reopening not seek a of the cause in- manner, presented and the reasons therefor counsel application for Small can have no to his situation. The by some, true, upon theory cause was tried riparian rights, the doctrine of with reference to irri- gation, prevailed applicable lands; and was to their but sought petitioner. not so with He to defend as an Ob.— prior only, appropriator pleadings adverse user and being 424, 433, purpose (51 held sufficient for that Or. 1104, 1107, 1109), proof 439: 98 Pac. his not only question possession, went to to the of adverse but prior appropriation well; his in this efforts direction being, say least, ably fully presented the and as testimony as is usual in of cases this kind. Much establishing purpose on offered his behalf for the of settlements, filing, the dates of his of his his final proof, rights, of the initiation of his various the size ditches, quantity of his and character of irri- land gated, including quantity required of water thereof, proper it is evident therefrom proof principally upon that he relied in his claim prior appropriator, securing as a even the extent of stipulation prior to the effect that he was in time superior plaintiffs. (See to the 51 Or. 737; 1104, 1109.) may 424: 95 Pac. 98 Pac. The same informally, be said the few others who have compliance any court, pre- with of the rules of this signed suggesting sented and a statement that Small’s petition granted, should be for which reason their request, legally consideration, even if entitled is devoid of merit. Or., opinion, 380, (95 page

In our first Pac. 751), we largely stated that since the cause was “tried theory riparian rights on the have attached to the lands, inadequate purpose evidence seems for the making equitable rule,” an distribution under that suggestions supplemented we statement with as to the proof connection; character of desired in that but we subsequently riparian rights held doctrine rights inapplicable Had we involved. held opposite view, then, sug- reasons there gested proof necessary with reference to the for dis- owners, among riparian probably tribution would resulted, sponte, remanding the have sua cause for Hough-y. June Portee. taking testimony; question when the further but rights riparian became eliminated reasons for taking nothing testimony It ceased. is of additional litigants appeal

unusual for to discover on for the first they wrong theory time that have tried the cause on a below, especially in the court is true this in suits hardships equity; but whatever be the occasioned thereby none reason thereof have resulted in the case (See 1109.) under consideration. 439: 98 Pac. evident, however, inspection record, It an from cause, suits, like most water was tried theory that each should avail himself of whatever might had, and, defense the court after trial discover he result, pleaded as a some all defenses and avail- able, apparent hope expectation they with the and that might, least, hailing at come within distance of some them; dragnetic system pleading of and this of and proof is not unusual in the trial of this class of cases. policy, litigants appear, Pursuant to such the far so as essential, deemed to have introduced evidence at hand likely any bearing upon regard- deemed case, to have the less of the claim of or defense under which their proof might eventually classed, principal be the defect which, indicated, proof as was the offered was insufficient to equitable enable this court to make an adjustment of respective parties the they case were to riparian be determined under the doctrine, anticipated by subsequently some and as attempted by True, showing the trial court. the made parties suit, the trial some of the the to under n subsequently inapplicable, the issues very held meager indefinite, but, stated, and as hereinbefore none injured thereby, any, of those complaining, if are from they which we must infer that are satisfied with the result, certainly Small, fortunately and who is not thus situated, position complain them; is not in to for esneci- ally diligence trial, clear, since their lack of at the it is way prejudice. in no works to his support last filed It is next maintained in the brief in. that, petition rehearing the beneficial since for the limit are held be

use and the needs of user right, minimum and his and that we have fixed the reasonably required proper quantity maximum for any involved, at from one lands “might feet, quantity such to three acre one-half land not more too much for some this be enough other,” by which it than half reason of testimony argued taken be is that additional should requirements up, respect, clear this the demands and each, ascertaining áctual “the facts leave conjecture vague nothing general supposition.” holding upon manifestly overlooks our This contention subject, when to the effect that disposal required by more be at the one or shall it ; (98 1109) Wright, others: 51 Or. 438 Pac. Gardner therefore, 286, 297). If, (91 49 Or. Pac. 11/2 irriga required by proper for the acre feet is not some lands, surplus must available for tion of their example, parties requires if but one of others. For foot, quantity of the minimum half or one-third acre irrigate land, awarded, supply properly remain by others; again, ing subject if after must be use supply of water received the awarded each have shall purpose), surplus (if is sufficient for him there may be, surplus, remain, whatever such shall hereto, parties comes within the same rule between accordingly use in becomes available their priorities heretofore determined. of the order obstacles, likely Anticipating from time to time the may change, respect, climate and soils in this as to arise being fact that mindful of the the evidence also on explicit might it points be, as full and as is not some nothing say the unforeseen difficulties which cases, appearance ample- always their such make time opinion (51 in our former made provision was 444: entry supplemental 1111), the such for Pac. J UNE

decree, decrees, inconsistent with the views announced, may, any time, as at be found essential emergencies they may meet arise. The order of priorities, proportionate the interests and limitation of litigants determined; of each of the is but question may as to when a water user be deemed to be acting scope decree, within or without includ- ing enforcement, may the best manner and method of its necessary times, it carry spirit make at in order to effect, require decree into for the court below to disputed points. further evidence example, For might necessary gather become from time to time to concerning acreage irrigated, information as to require water, quantity what tracts necessary proper thereof, the best and most effective distribution, quantity method of available, of water actually applied, etc., (See amount 380, etc. 51 Or. 1101, 444: 95 Pac. 751: 1111), 98 Pac. all of which be done and under the court, direction of the trial cases, as in other or in recently provided the manner by legislative enactment. 319, See p. Gen. Laws Chap. 215, seq. et Evidence purposes, for such §§ owing nature, always to its will available, and accord- ingly subject objection is not hereinbefore alluded response petitioner’s obvious, demands. It is therefore, emergency reopening advanced for time, the cause at purpose for the securing suggested class of desirable, evidence fully recog- opinion nized in provision our former will be made therefor decree here, to be making entered such proceeding clearly unnecessary. this time feature, however,

There is another to which our atten- directed, tion has been with reference to which we are adopt inclined to filing counsels’ view. Since the main opinion placed the Porters’ have on file with the clerk court, bills, taxing against of this cost Small and in alleged their favor costs to have been incurred courts, aggregating them in both the sum of $2046.70, Porter. inspection appears an there is included from of which it fees, including mileage, nearly all who witness evidently testified in the case in the court below. This is theory attempted upon fees are that as whose gave directly indirectly testimony thus taxed bearing interests, upon had some the Porters’ their mileage per be included in the cost bill diem should Why the costs incurred in court below favor. appear, are nor can we surmise a taxed here does not therefor, theory that reason unless it is since provides equity the statute that suits in shall be tried appeal, implies ele novo it the cost bill must be on practice; is usual filed in this court. Such not the but procedure proper in such whether is the cases us, accordingly will before not be determined. But pre- the cost bills filed illustrate the difficulties to be if in the manner sented costs are to be taxed heretofore directed; fact, it is manifest the obstacles to be determining, holding encountered in under our former to, proportion if adhered of costs lower court Small, against adjust- equitable be makes an taxed very difficult, impracticable, ment thereof if not requiring probably would result Small to bear too large respect; partaking thus a burden in this equitable, punitive, rather than an nature of a assess- thereof, which was not intended. ment parties controversy materially are Since all the benefitted, having the extent at least of their finally determined, though par- the result in each even expected what he ticular case not be or she have desired,' think, we after a careful reconsideration fully justified decreeing thereof, the court below was parties recover costs in that that none of court. against judgment Porters’ Small costs and dis- will therefore limited those incurred bursements court. in this petition is denied.

The Rehearing as to :

Modified Costs Denied. Hough June concurring following

MR. Justice Eakin delivered the opinion: filing rehearing we

Since the motion for have reviewed relating appropriation issues and to the evidence of water Small. Small claims 800 inches water through three ditches on west side Silver Creek. map us, 1 Ditch marked on a is what No. before Bridge Creek, is known as the ditch from 2 and No. and No. 3 are taken from the Branch near the Island says center of northeast of section 15. He ditch 14 1, capacity inches, No. with of 200 was constructed Bridge in 1881 to take water from Creek to his desert (560 acres). land claim in 10 sections 9 and He is very indefinite as to the details relative to the construc- fall, ditch, ground particular tion and use of the its by it, crops covered and the raised. He testifies that 3, ditches 2No. and No. with 300 inches and 250 inches

capacity, respectively, 1882, were constructed No. being purpose reclaiming land, also for the the desert equally he ditches, but silent as to details of these two simply general and his evidence amounts to a statement that, 1882, through in 1881 and he diverted these ditches large inches water. He that a admits tract of this land was not fenced until In 1885. his answer evidence, and in his he claims the owner of 1960 land, irrigated creek, acres of all of which was from this claiming therefor, 800 inches of water and that all has irrigated 1882, been since that and one-half to three- quarters per inch of water acre was sufficient for that purpose. appears It plat from the evidence and a sub- only acres, mitted with this that motion he owns which not more than 820 acres are under the three sixty ditches above mentioned. Five hundred and acres comprises claim, of the 820 the desert land for the loca- application 1884, of which he tion did not make until and Hence, not fenced until about was 1885. at the claiming water, times he states he inches of he these only legitimate acres under claim to 260 had a strongly ditches, weaken his evidence which tends appropriation. the- time and amount of testifies, taken the first water that A. D. Porter S. and in 1886. Jesse land claim was to the desert Small jointly request, 1886, Porter, at Small’s James flowing in quantity him, measured with not exceed the amount did No. No. ditches both, were about half ditches 50 to 75 inches contending all the full; that was time Small - evidently taking He con- or claimed. water he was reclaiming purpose for the these ditches structed irri- land, though says other land to he he had desert land, or state that gate. what does not mention He It also particular land. the water he took swamp land in part land was appears that of this required suppose irri- reasonable to it is not gation think determination until reclaimed. We just. I original opinion interest is fair and of his exclusively ref- with here treated Small’s have relies by prior appropriation. He also title erence to possession, there but upon title adverse answer in his indicating the water his use of is no evidence 1895, and, prior there- users with the other interfered rule in North under the fore, not adverse such use is 223), 9, 22 (54 Coughanour, Pac. 34 Or. Powder Co. v. (65 814), Hayes, Pac. Beers Or. v. Carson 717). (75 Pac. The use Sharpe, 44 irrigation cannot become of a stream the water it, unless such use claimant of another adverse and curtails his use. infringes upon the other therefore, acquired no title adverse Small, has denied. should be The motion possession.

Rehearing Denied. Notes 466. good government power A illustration of the of the or proprietor, other landed at all times and whenever de- it, grant, reserve, right any to sired or dedicate a to any acquire any one at part time to title or to public might designate its domain in such manner as it itself, incorporeal rights —either to the land appurtenant thereto, it, whether an easement over minerals, timber, removal of the of the flowing through the use of all or waters or ad- jacent such be found in the recent case land — Winans, (25 Sup. United States v. 198 U. S. 371 Ct. 1089). brought 662: 49 L. Ed. In that case a suit was

Case Details

Case Name: Hough v. Porter

Court Name: Oregon Supreme Court

Date Published: Jan 5, 1909

Citation: 95 P. 732

Court Abbreviation: Or.