37 P. 82 | Or. | 1894
Opinion by
The defendant contends that Robert Kitchen obtained possession of Straw Ranch in eighteen hundred and sixty-six, from Huffman, after Gray’s relinquishment, and occupied the premises from that time until eighteen hundred and seventy-nine; that the absence of record evidence of transfers of the premises showing the chain of title is due to the loss of two volumes of the county records; and that he has by other evidence joined his possession to that of Herman, the original settler; and that plaintiff acquired no interest in Straw Ranch by the purchase of the buildings from the stage company; while the plaintiff contends that by his purchase he secured possession of the premises; that he abandoned the same together with the ditches and right of appropriation of water thereby; and that Straw Ranch remained unoccupied from eighteen hundred and sixty-six to eighteen hundred and seventy-one, when Kitchen took possession of it as vacant public land. The law is well settled in this state that improvements made upon the public lands
The record shows that the plaintiff, on September twenty-fourth, eighteen hundred and eighty-four, granted to the Oregon Eailway & Navigation Company, and to its successors and assigns, the perpetual right to take water for all legitimate purposes from such place on Alder Creek as said company or its agents might select, and that, in pursuance of such grant, said company laid a pipe to a point on said creek about four or five miles above plaintiff’s point of diversion, and diverted about two inches of water to a tank erected on its line of railway and used to supply its engines. From this grant the defendant infers that plaintiff seeks to enforce his claim to use of the water of said creek for speculative purposes. The railroad company is not a party to this suit, and hence any conclusion upon the validity of the grant to it would be mere dictum. So far as the rights of the plaintiff and defendant are concerned, the grant would amount toa change of plaintiff’s point of diversion; but, since the record shows that there is sufficient water in the