*1 12; Argued September 16; Pendleton modified October mandate 23, 1934 corrected October RIGHTS OF RIVER WATER DESCHUTES In re AND ITS TRIBUTARIES (36 (2d) 585) P Irving, (Lewis

Percy Cupper, H. of Salem A. appellant brief), for Jefferson Water on the Madras, Conservancy District. (Max

George A. of Redmond Cun- Brewster, H. *2 brief), respondent ning, and on the Redmond, of Oregon Irrigation cross-appellant District. Central Irrigation Bend, of for Arnold DeArmond, E. E. District. This has

BEAN, case heretofore been before J. ( 1049). 268P. 563, 134Or. 623 294P. At this court. See parties, request by of the interested the court time, that question to the circuit referred engi- through to the state the circuit court court, might study made as to that further order neer necessary on amount of to be delivered authority produce for the results, fair land with engineer testi- to take further circuit court and state two-year necessary. engineer mony made a if The state investiga- study report A his water. typewritten pages, tion and the conclu- consumes engineer given page sion reached is engineer’s Objections report. deter- to the state Hearing filed the circuit court. mination were with testimony objections upon offered had was support against determination. such February 14,1933, a decree on lower court entered March 24, 1933, thereafter on that court modified the supplemental decree which had been entered Feb- ruary supplemental From 14,1933. decree and the modification thereof, Jefferson Water Conserv- ancy Oregon Irrigation District and the Central Dis- appealed. trict have provided decree of the trial court

This February decree of circuit court entered 10, 1928, later shall modification thereof remain in full except thereby force and effect, modified. modifying supplemental

The decree as follows: “ORDERED and that the former De- DECREED February

cree of 1928,as modified 10th, the Decree Supreme Supple- and as modified Court February mental Decree of 14th, 1933, shall remain in except full force and effect as herein amended in the following particulars: *4 that the “It and DECREED is further ORDERED County

quantity appropriated Crook properly Improvement District No. is insufficient project, irrigate acres, the entire reclaim and applied provided may area; that that be to a less quantity from diverted the Deschutes total equal canal shall to but not River the north dam during a exceed sufficient amount deliver at its weir irrigation quantities in season the measured second foregoing- feet set forth in the above tabulation. The provision affecting any con- shall not be construed existing tract contracts now or hereafter between Irrigation Oregon the Central District and Crook County Improvement District Number One. open signed day “Dated and in Court this 24th March, 1933.”

Appellant Conservancy Jefferson Water District following assignment makes the of error: allowing larger quan- “The circuit court erred tity irrigation acre for the the lands projects the various referred to in the decree than the quantity notwithstanding claimed, that no amendment asking for additional water has been filed.” proof This refers to the statement of claim of Oregon Irrigation the Central District. original proceeding In the Oregon the Central Ir- ’

rigation appropriation District claimed an of 1,250 portion second feet continuous flow That of the claim was definite certain. The district was awarded 985 priority second feet continuous flow under date beneficially apply 1900 to the extent that it could system, irrespective water to the lands under the quantity used on each acre. Question No. 21 of form furnished the state engineer, appropriator required on which the to sub-

394 of amount as follows: “What

mit or reads claim, his its necessary proper ir- you for the is do estimate pro- irrigating you rigation are of the lands which purpose a pose irrigate, for which or for other prepared right In a detailed statement claimed?” engineer, in answer in the exhibit an contained question, number of estimated what the district necessary per for the months acre feet acre was September May, July, August, April, and Octo- June, leakage seepage and losses and also estimated ber, per system 45 and estimated cent, at in the canal Oregon duty and Canal on the Central diversion acre feet Pilot Butte Canal as 6.73 North and Canal per per be the but minimum, which would season, acre the amount theretofore used that it less than was stated . on lands. their claimants made

The various estimates vary naturally proofs of claim would statements states quite claimant an and where extent, appropriated to be claimed amount of water definite simply an makes flow, continuous in second feet they be should think we water, of the estimate experi together the other evidence with all taken fix the should court and that the and studies, ments irrespective practically of the estimates of water cir that the do not understand claimants. We larger quantity acre court cuit allowed projects irrigation in the various of the lands for the proceeding. original quantity in the claimed than the be definite must claims It is true that the case at bar made in the claim We think certain. Kinney requirements in 3 complies stated with the quoted (2d Ed.) pp. Irrigation 2788, with Haney approval Co., 109 v. Neace-Stark Or. (216 190),

p. as follows: P. 219 P. right plaintiff description should “The pleaded great particularity The full extent be with purpose for which stated, should pur- necessary amount for that used, water is pose. * * * quantity should water claimed *6 gallons, or acre inches or feet, feet, be stated in cubic ** of *. in some In water other definite measurement to make a decree in to enable the court fact, order quieting right, definite title to a which will be water specific allegations and as to it must have before it certain, right claimed, the nature and extent the water proof.” which, of course, must be sustained adopted plead construing A liberal rule is in ings, proof or a statement and of claim in suits: water Hough (95 v. Porter, 51 732, Or. P. 98 P. 728).

P. assignment

The second of the Jefferson Water Conservancy allowing District is that the court erred in larger quantity required proper of water than is irrigation purposes. rights The to the use of the waters of the Deschutes river and its deter tributaries, present proceedings, mined the decree in the en titled and limited the owners of a water quantity may use of applied water which specified a beneficial If use. the amount in the decree beneficially appears used and it so to the water master, the error should be corrected. Counsel for this argues proper duty claimant that of water is that quantity produces which fair quan results and not the tity produces crop which quan the maximum nor the tity produces largest yield per that unit of water: Hough supra. Porter, v. duty many experiments, study

After much as indicated. in this case has been fixed water quantity testimony of water indicate does not larg- crop produce or the the maximum allowed would crop. yield, In our former fair no more than a est but supra, opinion, River, Deschutes In re Waters of page this court said: adjudicating duty water court

“It is a wasting rights suppress and the court all may go shall constitute and declare what further proper fix its and to economic water use awarding of a amount the use certain precious purpose. an ar- is too for that Water water ticle per- region, region, to be or semi-arid arid ’’ mitted run to waste. master, might add that it is

We to allocate decree, not or of administer the those who changed who, on account user, to a year quantity of land one a less cultivates conditions, water allotted than another does not need purpose, for a beneficial to him cannot use the same *7 by a not needed water the water is if, or for reason may purpose, although same the for a beneficial user regulate master should him, be awarded should no waste water. so that there the same to the use use is the limit of the Beneficial Oregon § 1930. Code 47-901, in this state: water given special to the losses of attention have We by evaporation, by seepage as recommended by engineer the and as fixed the state engineer, report In the of the state after court. circuit years, following study two the of water for decreasing suggestion losses: is made materially can be that these losses “It is believed prohibitive, by expense not the removal of at decreased by ledges canals, as checks rock repair that act by they appear, decreas- fast as as crevasses ing laterals to size section of some the excessive cross they carry proportionate water which amount of through using sections of the worst flumes some canal, of section of as the Peterson-'Whittemore lateral and such previously, mentioned Pilot Butte Canal by using and also on some of the farm ditches flume suggested field. It between farm and the weir or the districts make determine whether studies lining economically not are flumes or feasible.” investigation experiments

After careful engineer, according pain- made the state staking report, appear percentage it does that the of losses determined and the trial allowed court can prevent be decreased This, should not however, suggestion that the water users make studies to deter- lining economically mine whether or not flumes are if feasible, so and, found, to decrease losses in that Broughton (28 manner. Stricklin, See v. 146 Or. 259 P. (2d) (2d) 332). 219, 30 P. doWe not deem it feasible change percentage this time to loss made by the circuit after court, the recommendations of the engineer, state safely and do not consider that it can be done at this time. apparent large portion

It is that a of the Deschutes irrigation project requires large river quantities of account topography of the broken of the land porous and the nature of proximity very soil, porous sub-soil or vegetable lava rock, lack matter within the soil. It only is indicated that in one irrigation project in the state are the conditions of the soil worse than those on namely, Deschutes river, on the Walla part Walla river in the eastern of Uma- county. tilla There is another matter wherein the Des- *8 project chutes project from differs other in the that that is information, which we have state, very slight spring in- is a in the rnn-off of the water holds formation which crease on account of the lava kind of reservoir. the water back as a enough in the that there is It is claimed supply has been all the water to river Deschutes users. different water to the the decree awarded proceedings original were experience, while The orig- working parties under pending and the were duty water, was as to the allotment inal decree many scarcity of water account of the that on portion apply a small to users would right man has a water instance, one land. For than 1.8 acre feet there- more acres and received for 49 90-day period during use and was of maximum for irrigate had water acres; another to but 27 able irrigate acres, to but 230 able acres was for 348 yet than he was entitled more water he received years proceed- During the that'these under the decree. pending ings some of the estimates and since were original upon based, decree was which were made study many experiments made has much there been that the court indicated, and we think was as heretofore position on March fix the of water in a better original decree was entered. than when assignment of error of the The third Jefferson Conservancy District relates to allowance Water per evaporation seepage of 45 cent instead of per have diverted, of the amount which we cent engineer already state fixed the referred. Oregon Irrigation District for the Central allowing for transmission loss from the cent and recommended the weirs, the farm follow- river to ing weirs, to be delivered farm in acre feet *9 Septem- July August May 1.2, April 1.2, 1.2, .5, .8, June point figured at the at 11.2 acre feet .5, .8, ber October of diversion. appeals Irrigation Oregon District

The Central engineer by the state allowed that the amount contends that district. as amount for should be fixed the Oregon supplemental of the Central decree maximum pro- Irrigation but the decree feet, District is 9.91 acre duty periods for vides different for different during early part irrigation season, May May September to and from 15 to October from 1 to November 1. October firmly present

areWe convinced that at the time the approved by determination of circuit court engineeer. state large

A amount of to water was awarded the Cen- Oregon Irrigation tral District, and no doubt strenuous endeavor will be all made conserve of the water possible junior regard rights, with a true to the taking into consideration all the facts and cir- by testimony cumstances delineated in the case and report engineer, that we believe a fair duty of water Oregon was awarded to the Central Irrigation District. Oregon Irrigation

The Central assigns District awarding the court erred in to Cline Falls Power Com- pany quantity greater of water than three acre feet on the land. It is well known that Oregon the Central Irrigation District owns now the ranch at Cline Falls requested change no in the They sug- water. gest that the owners of the ranch do not need and will per not use exceed three acre feet acre, as the ranch past has been and will cropped be in the future principally rye, crop requiring very little water. Falls fixed for Cline

Therefore, Company, court, circuit will fixed Power irrigation acre for limited to three acre feet change provision, however, will season. This Broughton provisions v. in the case of directions supra, relating to the water awarded Stricklin, Company the use and as affected Falls Land Odin opin provisions in the of the water at Falls. The Cline petition opinion especially case, ion in that conformity rehearing entered and the decrees *10 govern right Land of Falls will Odin therewith, Company, Company Falls Finance also of the Cline place change pertaining of the .of use as to the Finance.Company. to the Falls water awarded Cline Oregon Irrigation District raises the The Central Company allowing question Falls Power to the Cline pumping, and also in feet for for 90 second a Company right allowing a for 150 Falls Land the Odin opinions pumping. The and decrees in for second feet ample Broughton supra, Stricklin, v. make of the case questions strictly upon provision and should these page opinion at case, In in that we to. adhered irrigated amount of lands to be in to the relation said, particular year at Falls: in Cline at Falls and the amount in Cline “the land cultivation necessary pump irrigate to to the water of water same by master, water some should be measured competent person, and the amount of the water neces- by duty sary irrigate limited of same, water irrigation and in season accordance with the temporarily adjudication, as to allotted, so decree of awarded at Cline Falls limit the amount necessary for the land cultivated and the the amount pump necessary exceeding same, amount the decree, those amounts amount awarded master and no more. should be allotted * * * wasted, no should he words, In water other each allotted the water master the amount necessary for season exceed the amount should not purpose.” beneficial regard

The same directions were made Company. no ne- Therefore, Odin Falls Land we see discussing cessity question further pumping purposes irrigation used Cline Falls and Odin Falls.

It is stated that is a clerical error in the there description duty the circuit court in the County Improvement water for the No. Crook District 1, but find no such we error. The for the County Improvement Crook District No. 1 is fixed “at Lone Pine Weir” the decree. testimony

After careful consideration of the taken report engi- before the trial court and the of the state except for neer, the limitation as to the amount water Company, approve of the Cline Falls Power we given decree of the circuit court. haveWe this case thought much more and consideration than this memo- question except randum indicates. No other of water is involved in this case. *11 parties being

All of the interested in determina- party tion pay water, each will his or its own costs and disbursements. No costs or disburse- any party ments are to be awarded in this court. slight

With the modification mentioned, of the circuit court is affirmed.

Campbell sitting. and JJ., not Bailey,

4.02 23, by opinion October 1934 corrected

Mandate Opinion Correction application appearing proper It from the BEAN, J. County rights Improvement Dis- that the of the Crook decree, on forth in the circuit court 1, trict No. as set correctly are not described error, account of a clerical changed, that the the same should be rights describing language used, in County Improvement District No. water for Crook susceptible ambiguous meanings, of two 1, is name of the river is not mentioned, the decree of the circuit court is corrected and the same is further so as to read as modified follows: County Improvement 1; “Crook District No. Trans- per mission losses Cubic feet second of 35%; time April May acre at 1 to 1 ft. diversion, 1, to 137 ac.; May May May Sept. 1 ft. to 109 15 to ac.; Sept. 1 ft. to Nov. ac.; to 86.6 15 to ft. to 109 1,1 ac.; Oct. Oct. during ft. to Total feet 1,1 ac.; acre season at Lone Pine 4.20 Weir Crooked River.” Jj., sitting. Campbell Bailey,