168 P. 922 | Or. | 1917
Lead Opinion
“The right to appropriate money (water) hereby granted may be lost by abandonment; and if any corporation constructing a ditch or canal or flume under the provisions of this act shall fail or neglect to use the same for the period of one year at any time, it shall be taken and deemed to have abandoned its appropriation, and the water appropriated shall revert to the public, and be subject to other appropriations in order of priority; but the question of abandonment shall be one of fact, to be tried and determined as other questions of fact.”
This excerpt is to be distinguished from Section 6571, L. 0. L., fixing the period of nonuser at two years, the latter being part of the Act of February 18, 1899, relating to the taking of water for the purpose of developing the mineral resources of the state and furnishing electrical power; while the former is embodied in the act of February 18, 1891, concerning the appropriation of water for irrigation and domestic use and for watering livestock. The two acts treat of different subjects and each provides its own limit of nonuser as a ground of forfeiture. They are not contradictory.
“The general direction of said ditch and flume is to •be in a westerly direction from this point of diversion of water a distance of about 12 miles to Butter Creek. ’ ’
The accompanying map shows this same condition of a single ditch running from the Umatilla to Butter Creek. This notice marks the limit of the proposed enterprise, and activities beyond its scope constitute new ventures requiring additional notice complying with the terms of the statute as for the inauguration of a new appropriation: Andrews v. Donnelly, 59 Or. 138 (116 Pac. 569).
Using March 14, 1903, as a starting point for the Hinkle Ditch enterprise to which the Western Company succeeded, the Circuit Court ascertained the amount of acreage to which that appropriation of water might be beneficially and economically applied,
“Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within the state, shall file in the office of the state engineer a written notice that the United, States intends to utilize certain specified waters, the waters described in such notice and unappropriated at the date of the filing thereof shall not be subject to further appropriation under the laws of this state, but shall be deemed to have been appropriated by the United States; provided, that within a period of three years from the date of filing such notice the proper officer of the United States shall file final plans of the proposed works in the office of the state engineer for his information; and provided further, that within four years from the date of such notice the United States shall authorize the construction of such proposed work. No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this state except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the*385 United States thereunto duly authorized which release shall also be filed in. the office of the state engineer. In case of failure of the United States to file such plans or authorized construction of such works within the respective periods herein provided, the waters specified in such notice, filed by the United States, shall become subject to appropriation by other parties. Notice of the withdrawal herein mentioned shall be published by the state engineer in a newspaper published and of general circulation in the stream system affected thereby, and a like notice upon the release of any lands so withdrawn, such notices to be published for a period not exceeding thirty days.”
We find in the record a notice addressed to the state engineer signed by John T. Whistler, United States district engineer, who, in turn derives his authority from the Secretary of the Interior under the provisions of the act of Congress of June 17, 1902, informing the state engineer that “the United States intends to use all the surplus and unappropriated waters of the Umatilla River and its tributaries in connection with the reclamation of certain arid lands as provided (for under said act of Congress and requests that said waters be withdrawn from further appropriation as provided under the laws of this state.” No question is made but what the United States complied with the statutory rules promulgated by the legislature of this state respecting the manner in which the general government could appropriate water in Oregon. The procedure under this act vested the United States with title to all the then unappropriated water of the Umatilla River with priority dating from September 6, 1905, above noted. The Circuit Court gave priority to the Western Company as of March 14, 1903, for 4109.68 acres of land and as of July, 1907, for 12,747.48 acres, thus making it secondary to the United States
The Western Company complains of the court’s finding, Number 25, which is here quoted:
“That in all cases where any person, firm or corporation has a right under this decree to supply and deliver water to others and charge for the same, or may hereafter acquire such right, it is the duty of such person, firm or corporation to supply water to any and all persons, firm or corporation, or who can be reasonably supplied with water from said works under reasonable and uniform contracts and for reasonable and uniform charges up to the limit of the capacity of said works, so long as said person so taking such water complies or is ready to and able to comply with the terms of such contract. Such contract may provide for any reasonable and uniform method of pro rata distribution of water, and such person, firm or corporation may make such reasonable and uniform rules and regulations as may be necessary to facilitate such distribution. In case such contract does not provide for such distribution of water then such water shall be supplied to the water users in the order of, and according to the date of priority of use upon the land, or at' the place upon which such water is to be used, and sub*387 ject to rotation as in this decree generally provided; provided, that no contract shall be made to deliver water to lands or places not theretofore supplied, to such an extent as to deprive any land or place of water which has been previously supplied, and provided further, that no contract shall be made to deliver water for irrigation or power unless the land or place where said water is to be used be entitled to such use under a right granted by this decree, or a permit of the state engineer, or by a water right certificate.
“All contracts for the use of water giving any preference other than as herein stated, are against the public policy and laws of the state of Oregon, and void.”
There is nothing in this portion of the decree inimical to principles applicable to all public service corporations in their dealings with the public and there is no just ground of complaint against its terms.
Lastly, the appellant complains that the effect of the court’s decree was to postpone its rights as to 12,747.48 acres and make it subordinate to the right of the Furnish Ditch Company. This latter concern dates its appropriation from March 8, 1905, and it is so tabulated in the decree of the trial court. As already shown the Western Land Company dates from March 14, 1903, as to 4109.68 acres and the court so determined. . As to that, the priorities are preserved between it and the Furnish Ditch Company. The record shows that as to all additional appropriations beyond the original announced intention of the Hinkle Ditch Company they were not inaugurated until July, 1907. We cannot disturb the legal effect of these well-founded facts.
“Within six months from the date of the decree of the Circuit Court determining the rights upon any stream, or if appealed within six months from the decision of the Supreme Court, the board of control, or any party interested, may apply to the Circuit Court for a rehearing upon grounds to be stated in the application. Thereupon, if in the discretion of the court it shall appear that there are good grounds for the rehearing, the Circuit Court, or judge thereof, shall make an order fixing a time and place when such application shall be heard. The clerk of the Circuit Court shall, at the expense of the petitioner, forthwith mail written notice of said application to the board of con*390 trol and to every party interested, and state in such notice the time and place when such application will be heard.”
Under these circumstances the motion of the Dillon Irrigation Company must be denied. •
A careful examination of the voluminous record fails to disclose error in the determination of the Circuit Court and it is therefore affirmed.
Affirmed. Modified on Rehearing.
Modified .on rehearing April 16, 1918.
Rehearing
On Rehearing.
(172 Pae. 97.)
Mr. W. G. Browley,. for the petition.
Mr. Harrison Allen, Mr. R. R. Johnson, Mr. Frederick Steiwer, Mr. Oliver P. Morton, Mr. Will R. King, Chief Counsel U. S. Rec. Service, Mr. James A. Fee, Mr. Stephen A. Lowell and Mr. James H. Raley, contra.
In Banc.
A rehearing was granted in this case, not because we were dissatisfied with the conclusions reached by Mr. Justice Burnett, but because of the importance of the case and the earnest insistence of counsel for appellant that in the hurry of the Pendleton term no opportunity was given adequately to present the contentions relied on. The case has accordingly been reargued with ability and we have been favored with additional written briefs, strongly pre
Appellant’s petition for a rehearing acquiesces in so much of the original opinion as holds that the rights initiated in 1891 were lost by abandonment. We think that there is no room for difference of opinion as to the correctness of the conclusions announced in the former opinion on this subject.
The contention on the part of appellant which is most strenuously presented is that the Circuit Court erred in dividing appellant’s priorities, and in fixing its priority for 12,747.48 acres as of July, 1907. Appellant claims that its entire appropriation of water should be referred to March 14, 1903. The decree of the lower court awarded to appellant a water right with a priority as of the latter date applicable to 4,109.68 acres. The lands covered by this priority under the decree of the Circuit Court are lands lying between the headgate of appellant’s ditch and Butter Creek, including also some hundreds of acres west of Butter Creek, the priority covering substantially the bottom lands in the neighborhood of this watercourse. The lands as to which a 1907 priority is decreed lie west and north of the properties above referred to. They are all situate west of the Umatilla River and beyond the Butter Creek bottoms. Appellant’s claim to the priority contended for is predicated on its rights as the successor in interest of the Hinkle Ditch Company.
Appellant directs our attention to Section 6533, L. O. L. This statute is a part of the act of 1891. It requires the appropriator of water to commence the actual construction of his ditch within six months from the date of posting his notice of appropriation. The statute directs that:
*392 “The actual capacity of said ditch or canal, or flume, when completed, shall determine the extent of the appropriation, anything contained in the notice to the contrary notwithstanding.”
If appellant’s rights are to he determined by this principle, we are driven to the conclusion that appellant was liberally dealt with by the decree appealed from. It appears from the testimony of H. D. Newell that he measured the water in the Hinkle ditch on January 16, 1906, which was four months subsequent to the time when the rights of the United States attached. He found that the ditch, eight miles from the headgate, was carrying 39.9 second-feet of water. The testimony shows that this amount of water would scarcely suffice for the irrigation of the lands as to which appellant was awarded a 1903 priority.
“Where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder has been in good faith commenced and diligently prosecuted, such appropriations shall not be set aside or avoided, in proceedings under this act, because of any irregularity or insufficiency of the notice by law, or in the manner of posting, recording, or publication thereof.”
If it appeared that the notice of appropriation under which appellant claims was inaccurate through some mistake in drawing it, appellant could invoke the curative effect of the above statute with propriety. But it affirmatively appears that there was no such mistake.
Mr. J. T. Hinkle, president of the Hinkle Ditch Company, which made the appropriation, was better
“The location notice as filed by the Hinkle Ditch Company in 1903 properly expressed the intention of the Company, did it, in regard to the irrigation of the lands?”
He answered:
“I think it fairly expressed the intention.”
The notice of appropriation described a ditch or flume extending a distance of twelve miles to Butter Creek. The map filed at the time the appropriation was made, pursuant to the requirements of Section 6529, L. O. L., covered no lands as to which the decree of the lower court gave appellant a 1907 priority. The ditch noted on this map terminated at Butter Creek.
Mr. Hinkle and Mr. O. D. Teel were the promoters of the Hinkle Ditch Company and were more familiar than anyone else with its plans at the time when its appropriation of water was made. Mr. Hinkle testifies:
“We proposed to build that canal on there and irrigate all the land that it would irrigate in any practical manner and to reach all the land we could reach by extension of it, and at that time we had no permanent surveys of our own, we were depending on some very uncertain preliminary work, and upon such record of previous surveys as we could find and we aimed to make the appropriation large enough to provide for ourselves, and to provide for the government who was then doing some geological work in the neighborhood and preliminary work, and to provide for any other people who might come in and enlarge our canal and make use of it.”
This testimony tends to show that the Hinkle Ditch. Company hoped that its enterprise would prove to be
“Q. What was the purpose of the Hinkle Ditch Company, and what lands in a general way did it intend to irrigate when its appropriation was made?
“A. We expected to irrigate all lands lying under the ditch that were not provided for by prior appropriations of other ditches.
“Q. Had you at the time you made the appropriation, determined definitely what lands would ultimately fall under the system, when built?
“A. They were largely on Butter Creek bottom, and beyond Butter Creek, principally beyond Butter Creek.
“Q. How did they correspond with the lands at present coming under the system?
“A. They were about the same, if not practically the same proposition.”
! It appears that in 1903 and 1904 a number of homestead entries were made on the properties as to which a 1907 priority was awarded appellant. Mr. Teel testified with reference- to the irrigation of the lands of these homesteaders as follows:
“Q. Were the homesteaders expecting to get water from the Hinkle Company?
“A. When they went in there, I think they did not.
“Q. Did they later on, when the Hinkle Company started out to cover that section with its ditches?
“A. As I remember, they tried to make some contracts with us and didn’t have any money and could not give any security and we could not build down in there to irrigate just what few there were in there, what few lands were available under the circumstances, that had something to do with the size of our headgate, the second one we put in there.”
Mr. Hinkle testified on this same subject as follows:
*395 “Q. Do you. recall the time when these homestead entrymen attempted to get the Hinkle Ditch Company to construct a ditch down there?
“A. Yes, sir, I recollect it.
“Q. Do you recall that the Hinkle Ditch Company said, if they would construct the ditch themselves they would deliver water to them down there?
“A. Possibly, if at that time they wanted to get the ditch down there, they would either have to build it themselves or pay the Hinkle Ditch Company enough money on water rights to enable the Hinkle Ditch Company to build it.
“Q. That was about the summer of 1907, wasn’t it?'
“A. No, that was along about 1905.”
The testimony clearly shows that at the inception of its undertaking the Hinkle Ditch Company constructed a ditch one and one-half miles in length. During the latter part of 1903 and during the years 1901 and 1905 but little work was done on the ditch by the Hinkle Ditch Company, and that little had to do with repairs and improvements, rather than with extensions. The extension work which was done during that period
It remains to apply the law arising on the above facts. In 2 Kinney on Irrigation and Water Eights (2 ed.), page 1221, it is said:
“In connection with the claim set forth in the notice, the court may also examine all the other facts in any particular case which tend to prove the actual intent of the appropriator. Such facts may be such as the purpose indicated in the notice, the actual amount of water required for such purpose, the acts of the appropriator in prosecuting the work necessary, the size of the ditch and its capacity, the method of diversion from the stream, the method of the application of the water, and any other facts which tend to show the true purpose of the appropriator.”
Pomeroy on Eiparian Eights (1 ed.), Section 47, says:
“There must be some such actual, positive, beneficial .purpose, existing at the time, or contemplated in the future, as the object for which the water is to be utilized; otherwise no prior and exclusive right to the water can be acquired.”
In Power v. Switzer, 21 Mont. 523, 530 (55 Pac. 32), the court says:
“The intention of the claimant is a most important factor in determining the validity of an appropriation*398 of water. When that is ascertained, limitation of the quantity of water necessary to effectuate his intent can be applied according to the acts, diligence and needs of the appropriator.”
In Andrews v. Donnelly, 59 Or. 138, 147, 148 (116 Pac. 569), Mr. Justice Burnett says:
“The right of a prior appropriator is paramount but'the right is limited to such an amount of water as is reasonably necessary for such useful purpose and project as may be fairly within contemplation at the time the appropriation is made. * *
“Any material enlargement of an original project or the inauguration of a new enterprise requiring additional water would call for a new appropriation which must be in subordination to the rights of others as then existing.”
These principles are also announced in Simmons v. Winters, 21 Or. 35, 42 (27 Pac. 7, 28 Am. St. Rep. 727); Hindman v. Rizor, 21 Or. 112, 120 (27 Pac. 13); Union Mill Co. v. Dangberg, 81 Fed. 73, 106; Ortman v. Dixon, 13 Cal. 33, 38. The formation of a new intention to irrigate lands the irrigation of which was not at first contemplated marks the beginning of a new appropriation: Nevada Ditch Co. v. Bennett, 30 Or. 59, 100 (45 Pac. 472, 60 Am. St. Rep. 777); Taughenbaugh v. Clark, 6 Colo. App. 235, 243 (40 Pac. 153); Toohey v. Campbell, 24 Mont. 13, 17 (60 Pac. 396).
On the whole case, we are satisfied that the Hinkle Ditch Company, appellant’s predecessor in interest, had no well-defined and continuing plan prior to September 6, 1905, for the irrigation of lands lying west and north of the Butter Creek bottoms. The decree of the lower court was liberal, as we read the evidence, in its allowance to appellant of the lands covered by its appropriation of March 14, 1903. The-
“Such contract may provide for any reasonable and uniform method of pro rata distribution of water, and*400 such person, firm or corporation may make such, reasonable and uniform rules and regulations as may be necessary to facilitate such distribution. In case sueb contract does not provide for such distribution of water then such water shall be supplied to the water users in the order of, and according to the date of priority of use upon the land, or at the place upon which such water is to be used. * *
“All contracts for the use of water giving-any preference other than as herein stated, are against the public policy and laws of the State of Oregon, and void.”
It is contended that the priority as between appellant’s water users should be based on the dates of their contracts. In Mann v. Parker, 48 Or. 321, 323 (86 Pac. 598), Mr. Chief Justice Bean says:
“An appropriator of water acquires a right therein only to the extent to which it is applied to a beneficial use.”
This is also the doctrine of Claypool v. O’Neill, 65 Or. 511, 514 (133 Pac. 349). A party holding a contract with appellant for the use of water should be required to apply the water to a beneficial purpose or to yield his priority to one who does make such beneficial use of the water. The foregoing was one of the incidental provisions of the decree and it was properly incorporated therein, although the subject was not mentioned in the claims filed by the parties.
A great deal of testimony was taken on the subject of seepage and evaporation. This testimony was contradictory, but the conclusions of the Circuit Court are supported by cogent proof and we are not convinced that they should be modified.
*401 “That the specifications of a definite amount of water per acre, in these findings, shall not be taken as granting that specific amount of water to any water user, but shall only be taken as a rule and guide for the water-master in the distribution of a maximum amount of water to any water user.”
As a result of this burdensome litigation the parties are entitled to have their rights determined. The conclusions reached are not to be disregarded and lightly set aside. The duties of water-masters are defined by Section 6617, L. O. L., and are in part as follows:
“It shall be the duty of the said water-masters to divide the water of the natural streams or other sources of supply of his district among the several ditches and reservoirs, taking water therefrom, according to the rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, the headgates of ditches, and shall regulate or cause to be regulated, the controlling works of reservoirs, in time of scarcity of water, as may be necessary by reason of the rights existing from said streams of his district.”
The water-master is an administrative officer charged with the duty of carrying out decrees fixing water rights. The provision above quoted from the decree vests the water-master with large powers out of harmony with the statute and with sound principles. That portion of the decree will be eliminated.
The decree will be modified in the respect above indicated. In all other respects the decree is affirmed and the former opinion is adhered to.
Modified on Rehearing.
