124 P. 666 | Or. | 1912
Lead Opinion
Opinion by
There are more than 300 owners of small tracts along this river, and a few of them only town lots. With but few exceptions the tracts are less than 10 acres, probably a great bulk of them less than five acres, which the owners seek to make lucrative by raising fruits, berries, and vegetables. Upon such small tracts more water to the acre is needed than on larger tracts, and a great expense in the method of conveying and applying the water cannot be afforded.
In the month of May there are about 10,000 inches of water (250 second feet) in the Walla Walla River at a point one-fourth of a mile above the City of Milton. In June there are 185 second feet, and the amount gradually decreases through June, July, and August to about 100 second feet. Above this point there are nearly 700 acres irrigated; below, there are about 2,500 acres. All, or' nearly all, of these 3,200 acres are more or less gravelly, much of it very gravelly. As the valley widens below Milton (where probably it is not more than 80 rods wide), the river divides into many small channels. At a distance of three or four miles north and west, the water sinks, and a few miles farther down the valley it again comes to the surface in the channels in quite large streams. The tendency of the water to sink is indicated by what is known as the Rogers underground ditch. Mr. Rogers has a tile underground ditch a distance of one-fourth mile. Where it emerges on his place the flow is, at times, as much as 1.43 second feet, and most of the time it is
C. L. Swain and O. L. Waller, who were called by plaintiffs as witnesses, are experts in the measurement of water; but their loiowledge of the duty of water is derived largely from hearsay, theory, and observation of its use upon land in another locality. They fix the amount of water needed upon volcanic ash land as one-half inch to the acre; but upon other soil of the valley from one and one-half to two inches; upon coarse gravelly soil, two inches to the acre. Other witnesses, not experts in measuring or estimating water, but with experience in applying it in irrigation, testify that the ground needs more than one and one-half inches. Plaintiffs cite the testimony of A. Miller,' as to the need of water on his volcanic ash land; but in his case the water is raised directly upon the land and is carried for distribution in board gutters, so that there is little if any loss by seepage or evaporation, which fact must be taken into account in considering his estimates. The 250 gallons per minute, raised by his pump, equals’ .554 second feet or .31 inches per acre, so that his testimony as to the amount needed on the land under the Milton ditch does not vary much from that of Swain and others, viz., one and one-half inches.
The lands of Rogers and Shaw, who testified to the amount of water they use, and the amount needed, are located down the valley where the subsoil is full of water from the irrigation above, as indicated by the Rogers underground ditch, above mentioned. As to the smaller
The Peacock' Mill Company is the owner of two flouring mills — the Peacock and the Eagle. The former is situated about 40 rods south of the northwest corner of the southwest quarter of section 1, township 5 north, range 35 east, and the latter is in section 2, a little south of the northeast corner of the section. The millrace takes the water from the Little Walla Walla branch at Station 68, which is about 40 rods north of the southeast corner of the southwest quarter of section 1, and at the point where the tailrace of the Peacock mill empties into the river, near the north line of the southwest quarter of section 1, the water is taken up again in the race that supplies the Eagle mill, but the diversion for both mills is at Station 68; the same water furnishing power for both mills.
There appears to be a great loss of water in some manner in the mill company’s race and flume between Stations 68 and 67, which latter is at the Peacock mill; and also between Stations 68 and 66, which latter is at the head of the flume, as shown by the measurements, varying from 200 to 660 inches. Also, witnesses testify to a great loss of water by leakage and overflow. Much of the water thus lost may find its way to the river and benefit the people below; but the mill company should exercise the diligence it asks of the defendants and take the water to the mills with a minimum loss. There is no
We find that the mill company was an appropriator of 2,250 inches of water of the Walla Walla River for power purposes on January 1, 1888, and an additional 500 inches in 1898, the appropriation being made at Station 68; or, if that quantity does not flow in the Little Walla Walla at Station 68, then at Station 26, the point of division between the Tum-a-Lum branch and the Little Walla Walla branch.
The Tum-a-Lum defendants plead the decree, rendered in 1872 by the circuit court for Umatilla County in the case of McCoy v. Hardesty, as a final division of the water between the Little Walla Walla River and the Tum-a-Lum branch. That was a suit to settle the riparian rights between the owners upon the two branches, and adjudicates no individual rights nor any of the rights involved here.. Although the Tum-a-Lum defendants contend for riparian rights under this decree, yet, as heretofore outlined in this opinion, they are claiming title
One of the principal contentions on this appeal relates to the amount of water required to the acre for irrigation. There is no controversy between the owners of these ditches as to the relative rights of the users, nor as to the amount of land entitled to water, the controversy being as to the duty of water thereon, and the relative priority of each user as against the Peacock Mill Company.
There are 91 owners in the Milton ditch, representing 407.79 acres of land served with water from the ditch.
We conclude that the Milton Ditch Company’s ditch is entitled to 445 inches, miner’s measurement, prior in time to the appropriation by the Peacock Mill Company in the year 1888; and to an additional 215.25 inches prior in time to the second appropriation of the Peacock Mill Company in 1898.
As to the duty of water on the A. Miller land (the volcanic ash land), it. appears from the book of data, p. 320, sheet 16, No. 21, that 10 acres of his land is valley land, and 50 acres bench land, which is irrigated from the Tum-a-Lum branch by means of' a pump with a capacity of 250 gallons per minute, which for 24 hours is equal to 22.23 miner’s inches, under six-inch pressure, or .554 second feet; but pumping only 18 hours a day, as allowed by the court, equals 16.66 inches, and used upon 50 acres would be one-third of an inch to the acre instead of one-fifth, as contended by plaintiffs, or .222 of an inch per acre for 75 .acres.
We find that Miller is entitled to water to the amount of 250 gallons per minute for 24 hours a day for the land on the hill in section 1, township 5 north, range 35 east, or 22.23 miner’s inches. That the defendant interveners, J. D. McCoy, B. M. Johnson, Mary A. McCoy, and I. Heidenreich, are claiming water through a natural channel known as “Little Stream,” a branch of the Tum-aLum, upon which their lands are riparian, for domestic use and stock water. They are entitled to sufficient water
There are 50 defendants known as the Tum-a-Lum branch defendants, taking water from that branch by means of the Eastside Ditch Company’s ditch, the Loundagin Ditch Company’s ditch, and those taking water directly from the channel, namely: Wm. H. Wilmot, W. S. Barnes, Woodson Cummins, Sam Lynd, J. W. Jenkins, Herman Wolf, H. B. Perkins, and A. Miller, by means of which they irrigate 416.52 acres of land; and J. D. McCoy, B. M. Johnson, Mary A. McCoy, and I. Heidenreich, riparian owners, taking water for domestic use. The appropriation for the following acreage thereof is prior in time to the appropriation of the Peacock Mill Company made in 1888, namely, 22.31 acres directly from the channel, 49 acres by the Loundagin ditch, and 98.14 acres by the Eastside ditch. For the following acreage the appropriation was subsequent to 1888 but prior to the appropriation by the mill company in 1898, namely: 29.81 acres, diverted from the channel; 60 acres by the Loundagin ditch, and 157 acres by the Eastside ditch. Of these amounts 106.21 are cultivated to vegetables and small fruits.
In addition to the above amounts, A. Miller is entitled to 22.23 inches, the amount diverted by him by means of his pumping plant, and prior in time to the appropriation by the mill company in 1898; and the McCoys, Johnson, and Heidenreich are entitled to 50 inches for domestic use. That is to say, that the defendants above referred to as the Tum-a-Lum defendants are entitled to 307.27 inches, miner’s measurement under six-inch pressure, prior in time to the appropriation by the Pea
The Stillman ditch has a capacity of 10 second feet and diverts water from the Little Walla. Walla branch above the head of the Peacock Mill Company’s race, at Station 35, by means of which 108.33 acres are irrigated. The appropriation for 30 acres thereof is prior in time to the appropriation made by the mill company in 1888, and 25.19 acres are subsequent thereto and prior to the mill company’s appropriation of 1898. There are 24 acres in garden. The appropriation for the remainder of the 108.33 acres is subsequent in time to the mill company’s appropriation of 1898. Therefore the Stillman ditch is entitled to 57 inches of water prior in time to the mill company’s appropriation in 1888, and 37.78 inches prior to the mill company’s appropriation of 1898.
The Perkins ditch takes water from the Little Walla Walla branch above the Peacock mill, but below the head of the millrace, and flows through and across the millrace immediately below the Peacock mill. By stipulation with the mill company, the water adjudged to this ditch shall hereafter be conveyed through the millrace to a point where it now crosses the tailrace of the mill company. There are 29 users of water under this ditch, irrigating 66.37 acres therefrom, of which 16.43 acres are in gardens and small fruits. The appropriation for 42.50 acres was made prior to the mill company’s appropriation in 1888, and 18.75 acres were appropriated subsequent to 1888, and prior to the mill company’s appropriation in 1898, namely, the Perkins Ditch Company has a prior right as against the mill company to 77.20 inches of water, miner’s measurement, and to 28 inches of water prior to the mill company’s appropriation in 1898.
Defendants Martha Hudson, E. D. Walker, Jennie Walker, Lucetta Romine, and Agnes R. Salt divert water from the Little Walla Walla branch above the millrace
There are about 50 defendants known as the “Up-River defendants,” who use water from the Walla Walla River. Their lands are situated on the river above Station 1, which is above the head of the Milton and the Cockburn ditches, and the water used by them is not included by the measurements of the flow of the water at Station 1. They irrigate 697 acres, of which 93 acres are in garden. Four hundred and seventy-two acres have been irrigated since prior to January, 1888, and 216 acres since prior to 1898, their appropriations for which were 732 inches prior in time to the mill company’s appropriation in 1888 and 324 inches prior to the appropriation of the mill company in 1898.
There are 14 defendants referred to as the Cockburn defendants who take water from the Nichols branch above the town of Milton and below Station 1, and who have a right to the water for the irrigation of 30 acres prior in time to the mill company’s first appropriation, namely, 45 inches of water.
There are 33 defendants who irrigate about 271 acres directly from the streams below the head of the millrace, 77 acres of which are in gardens. The appropriation of water for 113 acres thereof is prior to the year 1888, and for 110 acres it was prior to 1898, namely, 209.42 inches prior to 1888 and 165 inches prior to 1898. These defendants have no conflict with the mill company, as their needs are supplied from the water passing through the millrace.
Thirty-one individual plaintiffs claim water from the. Walla Walla River but divert the same below the point-of diversion by the mill company. They irrigate about 481 acres. For 192 acres the appropriation was prior to
The second finding by the circuit court (page 354 of the record) as to the date of the appropriation by J. A. Rogers is hereby corrected to conform to the facts in the book of data on page 14 to read: That 10 acres of this land ■ has been irrigated for 30 years; nine acres for 14 years; and one acre for four years; and the decree modified accordingly. This land is included in the allowance to users from the Little Walla Walla below the mill.
There is also an error in finding No. 22, on page 295 of the record, as to James Harris. The tract described is in section 20, township 5 north, range 36 east, and not under the Stillman ditch, and contains 10 acres instead of 1.23. See data, p. 348. He is an Up-River defendant. There is a James Harris who owns two tracts under the Stillman ditch. ' See data, pp. 350-352. Finding 22 is amended to read: 6.48 acres have been irrigated more than 20 years (allowance for this is included with the. Up-River defendants); and on page 338 the finding as to James Harris should include two tracts (sheet 16, Nos. 1 and 3, 2.16 acres under the Stillman ditch), which is included in the allowance to the Stillman ditch.
Summary: The defendants taking water below Station 1 and above Station 68, the head of the millrace, have a first right to 931.47 inches of water, miner’s measurement under six-inch pressure. The Peacock Mill Company has the second right to 2,250 inches as of date January 1, 1888. The last-mentioned defendants are entitled to the third right to 722 inches prior in right to the mill company’s appropriation in 1898. And the mill company is entitled to an additional 500 inches as of
Subject to the modifications herein made, the decree of the circuit court is affirmed.
Modified.
Rehearing
Decided July 30, 1912.
On Petition for Rehearing.
[125 Pac. 270.]
Opinion by
Defendants Orpha Johnson and others move the court to correct errors in the original decree of the circuit court affecting their property.
A tract of land belonging to Orpha Johnson is erroneously adjudged as entitled to water from the Perkins ditch. Finding 11, p. 279, record. The finding describes two tracts. The second tract is situated in the southwest quarter of the southeast quarter of section 35, township 6 north, range 35 east, and is irrigated from the Powell ditch, and the finding is hereby corrected to read:
“The said 7.50 acres have for 20 years been irrigated from the Little Walla Walla River, through the Powell ditch; 6.29 acres thereof being in garden and small fruits.”
And such tract is added to and included in the 271 acres of the 33 defendants mentioned in the former opinion of this court (124 Pac. 672).
Elvira Sanders and Charlotte Tanke are plaintiffs in the complaint of the Little Walla Walla Irrigation Union, and the owners of 10 acres of land in section 25, township 6 north, range 35 east, and their rights are adjudicated in finding 32 on page 372 of the record. It now appears that their interests have been transferred to Geo. B. Dexter, who was originally made a defendant as to other lands, and the decree is hereby corrected, substituting Dexter for Sanders and Tanke, in the water rights decreed to such 10 acres, and is included with the 31 plaintiffs on page 14 of the opinion of this court.
Jay Holman is the owner of .51 of an acre of land, all in garden, in the northwest quarter of the northeast quarter of section 25, township 6 north, range 35 east, which, has been irrigated from the Powell ditch for 15 years. This was omitted from the decree, and it is hereby added to and included in the land of the 33 defendants, who irrigate 271 acres directly from the stream mentioned on page 13 of the opinion of this court.
Fannie Holman’s 10 acres are adjudicated in the findings of the circuit court at page 351 of the record as irrigated from the Little Walla Walla, as shown by book of data, p. 32, being No. 29 on sheet 13, and is included with the 33 defendants mentioned in the former opinion of this court.
The Milton Irrigation Company, Perkins Irrigation Ditch Company, and the Tum-a-Lum, defendants, ask the court to specify the point at which the water allotted to their several ditches shall be measured to them, whether
With the corrections mentioned, the opinion is adhered to, each party to pay his own costs in this court.
Corrections Made in Decree of Circuit Court.
Former Opinion Adhered To.