74 P. 401 | Or. | 1903
Lead Opinion
delivered the opinion.
There is also another dispute as to the extent and nature of the interest these parties were to acquire in the ditch by the enlargement. , The defendant insists that such interest was to be subject and subordinate to the rights which he, O’Bryant, and the Wilsons possessed in the original ditch and appropriation—in other words, that each was to have a fourth interest in the enlargement only; and in this he is supported by the clear preponderance of the testimony. He seems to concede that under the agreement with McPhee and others, as he interprets it, if they had complied with their undertaking by full performance, each would have acquired a “six-inch space,” to use his term, in the ditch, subject, of course, to the original appropriation. But the real agreement gave them each a foot of space, or, together, a one-half interest in the ditch, but subordinate to such original appropriation. Considered as a whole, they thus acquired each a one-eighth interest in the ditch, subject to the limitations indicated, and the defendant acquired the interest nominally accorded to York. We come the more readily to this conclusion because of the fact that defendant has treated the York interest as a foot or eighth interest in the ditch, and has transferred it
He claimed at the time of the agreement to have acquired plenty of water through the ditch from North Powder, and that he did not care or have any use for such as was accustomed to flow in the slough. The original ditch was constructed across the first slough for the purpose qf diverting the water from it into the second, and thence allow it to escape into the Warm Spring Branch, so that defendant could cultivate the bed of the first slough below. When, therefore, the enlargement was completed, and the ditch carried through to the Warm Spring Branch, it inured to the benefit of McPhee and others, the defendant acquiring an interest with them through York, which
It transpires, however, that a new industry has subsequently developed, requiring a much later use of the water —that of the culture of alfalfa, used for hay, from which two and three crops are taken during the season. Irrigation is required for the second crop in the latter part of July or the first of August, and for the third still later. It appears that the plaintiffs McPhee and Dalton have engaged largely in growing alfalfa, McPhee having sown thereto some thirteen acres and Dalton about 180. As to
We are justified in premising that the plaintiffs and the defendant began the use of water for the irrigation of alfalfa about the same time, and developed the product as their circumstances would permit or the occasion demanded concurrently in point of time. They have thus jointly made a new and additional appropriation, which is, by nature, distinct and separate from the original one, and the enlargement thereof affected by the agreement. The plaintiffs, however, in making their appropriation, have claimed to make it in proportion to the interest each asserted that he owned in the ditch—that is, on the basis of a one-eighth interest in the whole to each of the four individuals engaged in the enlargement—and the extent of their right has therefore become fixed by the manner of their claim. The correlative interests of the parties in the appropriations are therefore as follows : As regards the first appropriation, augmented by consideration of the agreement, the defendant and the successor to the interest of the elder Wilson have the first and superior right to a quantity of water which would fill the ditch as now enlarged to one-half its capacity. Of the surplus above such one-half the plaintiff Dalton is entitled to a one-half and Smith to a fourth. In the new or additional appropriation of the water diverted by the ditch the defendant is entitled to one-half of the water diverted, diminished by such rights as the elder Wilson’s successor may have acquired thereto, the plaintiff Dalton to one-fourth, and Smith to one-eighth, for use in their alfalfa culture, after the first crop. The right to the use of the water in Hutchinson Slough belongs to McPhee, Dalton, and Smith. Neill possibly has an interest therein, but we cannot adjudicate as to persons not parties to the record, nor can we under
The decree of the trial court will therefore be reversed, and one here entered in accordance with this opinion, enjoining the defendant from the diversion of any water except such as he is entitled to. Reversed.
Rehearing
On Motion for Rehearing.
delivered the opinion.
A petition and supplementary petition for rehearing have been filed herein. To these an answer has been interposed, and a reply made to the answer. By these documents, which are voluminous and searching, the case has been ably and exhaustively presented by both sides upon the questions as to which a rehearing is sought. The main contention centers about the pleadings, and is whether the court, in its opinion, has transcended their scope, and decided the cause upon issues not contained therein.
The petition for rehearing will be denied.
Rehearing Denied.