259 P. 292 | Or. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *46 In Banc. This case involves the interests of parties claiming water rights on the Owyhee River and some of its tributaries. Only three of the contests waged in the adjudication of the water of said streams are involved in this court. These contests will be disposed of in their numerical order.
MODIFIED. REHEARING DENIED.
Both the state engineer and the Circuit Court denied the right of the contestants to the undiminished flow of the Owyhee River for the purpose of operating said water-wheels, but allowed to contestants the amount of water they had appropriated by means of said wheels and applied to the irrigation of their land. It is not contended that the notice of appropriation made by Carlton Fretwell, contestant, and filed with the county clerk in 1904, embodied notice of an appropriation of water for power purposes. The contestants claim that such a use of the water is appurtenant to the claim of water for irrigation. The contestants claim that the entire flow of the Owyhee River at low water, estimated to be from 1,800 to 3,000 inches, is necessary to the operation of the contestants' water-wheels. They claim for irrigation purposes only about 400 inches. Using a water-wheel propelled by the current of a stream for irrigation is lawful in this state: Or. L., § 5798. In order, however, for a water user to have a valid appropriation of water for that purpose we believe his notice of the appropriation should have included a claim of the quantity of water desired to be appropriated for power purposes. Even then the appropriation of the current of a stream would necessarily have to be reasonable: Schodde v. Twin Falls Land WaterCo., 161 Fed. 42 (
It would be unreasonable, in our opinion, to permit a water user whose notice was for a definite quantity of water for irrigation purposes to hold *48 five or six times the quantity of water so claimed as appurtenant to such claim to operate a wheel for raising the water for irrigation from the stream on to the land of the user. The only conflict with the contestants' claims is the claim of the owners of the said Happy Valley Ditch Company. They were awarded a total of 289.1 acres, provided that amount was being irrigated in two years from the date of the decree. They had already under irrigation about 173 acres. The amount claimed by the contestees is so small compared to the quantity of water in the stream that we think it would be unreasonable to deny them the use of that small quantity of water and allow contestants such a large quantity for a purpose not mentioned in their notice of appropriating water for irrigation.
The other question involves the right of contestees to increase the acreage irrigated prior to the adjudication. The evidence discloses that the contestees had added to their irrigated acreage to the best of their ability. There is some controversy about the amount of increase in the irrigated area belonging to the contestee W.S. Skinner. The other two contestees had without question increased the acreage under irrigation. It appears that the Happy Valley Ditch was expensive to construct and expensive to maintain, and that the ditch was constructed originally for the purpose of irrigating even more than the 289.1 acres awarded by the Circuit Court. There is no evidence that such an intention was ever abandoned. The Circuit Court gave contestants until June 7, 1928, in which to bring the additional acreage under irrigation. The principle involved has been determined in this court a number of times and the authorities seem quite uniform: Wimer v. *49 Simmons,
Attorneys for the appellants Maher et al. who use water from the Town Ditch state that the only controversy is as to the priority between the users from that ditch and the users from the King or Dinwiddie Ditch. The state engineer found that both ditches were constructed in 1873 and gave to the users from the Town Ditch priority over the users from the King or Dinwiddie Ditch. The Circuit Court reversed the state engineer and gave to respondent Crawford as trustee a priority of 1872 instead of 1873. During the taking of the testimony counsel for Crawford as trustee gave notice to the parties that he would seek to amend his application for a water right so as to conform to the testimony and mentioned that he would claim a priority of 1872 instead of 1874 as mentioned in the original application. The amendment was not formulated and filed until after the testimony was all taken. We think the allowance of that amendment was in the discretion *51 of the Circuit Court, and that its action should not be disturbed. No additional evidence was taken and no request for taking additional evidence was made.
A careful reading of the testimony indicates that the parties produced all the witnesses who could be produced and who had knowledge of the facts. There is some considerable conflict in the testimony as to which of the two ditches, namely, the Town Ditch or the King-Dinwiddie Ditch, was earliest. The most positive of said evidence, however, was given by witness Orr, who testified that he worked for David R. King, who constructed the King-Dinwiddie Ditch. Mr. Orr worked on that ditch in May, 1873. At that time there was a stack of hay on the premises and part of the premises claimed by said King showed that hay had been cut therefrom the year before. Inasmuch as the land did not produce hay in sufficient quantity to justify cutting and stacking, without irrigation it is very reasonable to conclude that the stack of hay on the premises was taken from the premises in 1872, thus establishing the claim made by respondent Crawford that water was first applied to the King premises, now owned by Dinwiddie and others, in 1872. We think the findings of the Circuit Court are supported by the evidence.
The decree of the Circuit Court is affirmed as to Contests Nos. 1 and 2 and reversed in Contest No. 5. The findings of the state engineer in Contest No. 5 are approved, that is, the contestee L.R. Duncan is awarded a water right from Jordan Creek for 70.6 acres of land situated in sections 13 and 14, township 31 south, range 41 east, W.M., as of the relative priority of 1891 and 38.5 acres situated in section 10, same township and range, with a relative priority of 1901. MODIFIED. REHEARING DENIED. *54