87 P. 896 | Or. | 1906
delivered the opinion of the court.
This is a suit by Finlay Morrison against Floyd L. Officer to enjoin interference with the use of water issuing from a spring. The facts are that, on December 5, 1894, the State of Oregon executed to the defendant a deed to the northwest quarter of the southeast quarter of section 36 in township 11, south of range 25 east in Grant County, ever since which he has been the owner in fee thereof. The state, on February 15, 1901, also entered into a contract with .the plaintiff for the sale of the northeast quarter of the southeast quarter of that section, township, and range, and five years thereafter he dug a ditch from a swale on the land last described, and conducted to a part thereof water which he intended to use in irrigating a garden. The defendant thereafter cut two ditches on his land from such swale, and diverted all the water therein, whereupon this suit was commenced, resulting in a decree as prayed for in the complaint, and he appeals.
The testimony shows that a perennial spring issues from the defendant’s land at a point about 120 yards from the east line thereof, the water from which reaches a point about 150 yards on the plaintiff’s premises where it disappears. Though there is a conflict in the testimony, we think the great weight thereof supports the defendant’s contention that the water
“Provided, that the person upon whose land seepage or spring waters first arise, shall have the right to the use of such waters:” B. & C. Comp. § 5019.
This act was passed February 22, 1893 (Laws 1893, p. 150), when the state was the owner in fee of the lands hereinbefore described. The clause adverted to is, in our opinion, a grant of the exclusive right to the use of the unappropriated water specified to the person upon whose land such water first arises, and was probably a recognition of a practice prevailing in the arid region of the United States, that the title to lands containing water issuing from the sources mentioned had been secured, so that the water might be used for domestic or stock purposes, and that the quantity indicated did not appear to the legislative assembly to be more than was reasonably necessary to supply such use.
When a spring furnishes a stream of water that rises to the surface, the right of appropriation attaches (Brosnan v. Harris, 39 Or. 148, 65 Pac. 867, 54 L. R. A. 628, 87 Am. St. Rep. 649), but where, as in the ease at bar, the admitted quantity is so insignificant that a surface stream is impossible, when spread over the width of ground mentioned, the use of the water belongs to the person upon whose land it first arises. A small part of plaintiff’s land was, before the diversion, moistened by water from the spring, and it is possible that such portion might be classed as a “water course,” on the theory that the law of gravitation compelled the water to take that direction because of the conformation of the land. The testi