delivered the opinion.
This is a suit by the North Powder Milling Company, a corporation, against W. A. Coughanour and S. M. Duff, his agent, to enjoin them from diverting the waters of a natural stream, and to recover damages alleged to have been sustained by reason of such diversion. The material facts are that in 1870, one N. Tartar commenced the construction of and two years thereafter completed a flour mill on the left bank of the North Powder River at the town of North Powder, Union County, Oregon, and diverted water from the river at a point about one mile west of the mill site, which he conducted in a race-way, and made a prior appropriation thereof by applying it to a “home-made” wooden turbine wheel, about thirty-six or forty inches in diameter, which propelled the machinery in said mill, consisting of one set of four foot burrs, one set of eighteen-inch chopping burrs, elevators, cleaners, suction fan, smut mill and bolting machine. April 25, 1878, Tartar conveyed an undivided one-half interest in said mill and water right to one James G. Welch, who, on August 27, 1881, obtained the remaining interest therein, and in 1883, having enlarged the mill race and erected another building, occasionally applied the water, when not used at the flour mill, to a similar wheel which propelled a planer and other wood-working machinery in the new building. October 4, 1880, Welch, Joseph H. Shinn and D. W. Lichtenthaler posted, at a point on the left bank of Anthony Creek, about eleven miles west of the mill site, and filed in the office of the county clerk of said county, a notice subscribed by them to the effect that they claimed and intended to appropriate two thousand inches of the water of said creek, to be diverted at said point and conducted in ditches and flumes to the town of North Powder, to be used for agricultural, mining and
In 1888 the then owners of said mill removed therefrom the “home-made” wheel, and in lieu thereof supplied a Flanagan turbine, thirty and one-half inches in diameter, and in 1892 plaintiff remodeled the mill, furnishing an improved roller process for manufacturing flour, and more modern machinery in place of the burrs, and other appliances, so that its capacity was increased from about thirty to about sixty barrels of flour per day. Anthony Creek rises in the Blue Mountains, flows in a southeasterly direction, and empties into the North Powder River at a point about seven miles above the mill site. About the first of April the water of North Powder River and its tributaries commences to rise from melting snow in the valley, and this volume in May and June is largely increased by the melting snow on the mountains, but by the first or middle of July the water begins to subside, and in August or September is usually quite low, remaining in that condition until the fall rains commence, about the first of October. Coughanour owns a large tract of arid land, situated west of the mill site, one
In the summer and fall of 1895, and from July 1 to August 24, 1896, when this suit was commenced, the waters of North Powder River and its tributaries were unusually low, so much so that plaintiff was unable to operate its mill to the full capacity, and, claiming that the diminution of its motive power was attributable to defendant’s diversion, this suit was instituted for relief. Plaintiff alleged that its grantors and predecessors in interest made a prior appropriation of the water of North Powder River to the extent of one thousand two hundred inches, miners’ measurement, under six inches of pressure, which quantity, since the completion of the mill, had been constantly used in its operation; and that defendants unlawfully diverted five hundred inches of water, miners’ measurement, from Anthony Creek, above the head of the race-way of its mill, whereby the operation thereof had been retarded at the time and in the manner indicated, to its damage in the sum of $1,000. The issues having been joined, a trial was had, and from the evidence taken thereat the Court found the facts, in substance as herein detailed, and also that plaintiff was
It is contended by defendants’ counsel that Welch, being the sole owner in fee of certain lands and of the flour mill property with its appurtenant right of prior appropriation, could change the point of diversion from the race-way on North Powder River to the bank of Anthony Creek, where the notice was posted, and could also alter the use of the water from the operation of a flour mill to the irrigation of arid land; that their client, at Welch’s request, and upon his representation that he owned the water right, and that the ditch in question could be enlarged to any size, purchased from Lichtenthaler certain real property and an undivided one-half interest in the ditch and water right, and thereafter also purchased from Welch certain other real property, to the irrigation of which the waters from said creek had been appropriated, obtaining from the latter a deed therefor, which also conveyed the remaining interest in the ditch and water right without any reservation whatever; and that Welch, in irrigating said land with water diverted from the creek, thereby created an advantage thereto to the detriment of his mill property, and upon conveying such lands to Coughanour without reservation the latter took them as they openly and visibly appeared at the time the deed was executed, thereby obtaining the permanent right to divert the waters of Anthony Creek and appropriate the same to the irrigation of his lands.
The documentary evidence, introduced at the trial,
James G-. Welch, appearing as a witness for defendants, testified that his intention, which existed at the time and prompted the construction of the ditch, was to raise wheat to be ground in and thereby to keep his mill in operation, and to furnish water to irrigate lots in the town site of North Powder, of which he was the owner. Upon this subject, he testified as follows : Q,. “What object did you have in constructing that ditch?” A. ‘ ‘ I constructed it to cover some desert lands. Lichtenthaler took up one section, and I took up the adjoining section; and I had land below — State lands.- I took it out for the purpose of raising wheat for the mill; pretty good wheat land.” * * * Q. “And your purpose in making the appropriation of water, and diverting that water there and carrying it over to this land, was to irrigate the land so as to raise wheat on it?” A. “Yes, sir; good wheat land as there is in Powder River Yalley. ’ ’ Q,. “That is, good wheat land provided it is irrigated properly?” A. “Yes, sir; good wheat land.” Q. “And you wanted to raise wheat for your mill?” A. “Yes, sir.” * * * Q. “Why did you want to raise wheat?” A. “Because I couldn’t get wheat to run the mill. We didn’t raise wheat enough there. I had
In the light of this testimony we -will examine the legal principle applicable to the construction of the deed evidencing the transfer of the land and water right to Coughanour, with a view of ascertaining if possible the intention of the parties. When the intention of the parties to a deed is not discoverable from an inspection of the instrument, and proof of actual knowledge of the contracting parties with reference to the physical condition of the premises at the time of sale is unobtainable, the rule for determining such intention is to
It will be remembered that Welch’s letter describes the land lying under the ditch as being well adapted to the growth of wheat, and his testimony shows that his desire to keep the mill in operation, and his inability to procure a supply of this cereal elsewhere, furnished the intent, and prompted him to seek the cultivation thereof, and as a means to that end it became necessary to construct the ditch in question. True, he states in his letter that the water not needed to irrigate the land which he owned, and that which he wanted Coughanour to purchase could be sold, but this must be understood to mean that the surplus could be supplied to others for irrigating land for the raising of wheat. Welch may have intended to furnish water by the ditch in question to irrigate town lots at North Powder which he expected to sell, but it is not claimed that defendants’ land forms any part of the town site, and such being the case a fair construction of Welch’s letter, as illustrated by his testimony, shows that the right intended to be conveyed to Coughanour was limited to the use of water to irrigate land for the growth of wheat. The irrigation season for Avheat, as appears by the testimony, terminates about the first of July, prior to which there is usually an abundance of water flowing in North Powder Diver to supply all reasonable demands for that purpose, and to furnish sufficient quantity to operate the mill, and, this being so, the advantage conferred upon the arid land by the construction of the ditch was no detriment to the mill property, and hence the rule invoked has no application to the case at bar.
Defendants’ counsel maintain that the evidence conclusively shows that prior to July 17, 1886, when Welch conveyed the town site of North Powder to Marshall,
It is insisted by defendants’ counsel that plaintiff is estopped by the conduct of Welch, its predecessor in interest, from interfering with or objecting to defendants’ diverting the waters of said creek, not exceeding five hundred inches, miners’ measurement, under six inches of pressure. If Coughanour, relying upon Welch’s representations, materially aided the latter in constructing the ditch, whereby the water was diverted and appropriated for a particular purpose, the parol license thus granted, having been fully executed, would be irrevocable, in view of which the better reason in our judgment supports the theory that a court of equity would enjoin the licenser from interfering with the free exercise of the right he had thereby conferred: Washburn, Easem. *560; Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; De Graffenried v. Savage, 9 Colo. App. 131 (47 Pac. 902); Curtis v. La Grande Water Co., 20 Or. 34 (10 L. R. A. 404, 23 Pac. 808); McBroom v. Thompson, 25 Or. 559 (42 Am. St. Rep. 806, 37 Pac. 57); Garrett v. Bishop, 27 Or. 349 (41 Pac. 10). See also extended note to the case of Lawrence v. Springer, 31 Am. St. Rep. 702 (24 Atl. 933). If plaintiff mill company succeeded to Welch’s interest with knowledge of the execution of his parol license, a court of equity would probably enjoin it from interfering with the exercise of such right. But, if this be true, plaintiff is not attempting to interfere with Coughanour’s irriga
It is claimed that Coughanour by adverse user obtained a title to the water he diverted and appropriated. The evidence shows that on March 2, 1886, he applied the water to a beneficial use, but as there was no scarcity of that commodity until 1895, how can it be said that there was a hostile invasion of plaintiff’s right prior thereto? Plaintiff having the right of prior appropriation of sufficient water to operate its mill, was not injured by any other diversion, so long as its demands were supplied: Wimer v. Simmons, 27 Or. 1 (50 Am. St. Rep. 685, 39 Pac. 6); Anaheim Water Co. v. Semi-Tropic Water Co., 64 Cal. 185 (30 Pac. 623). The right of prior appropriation is incompatible with the doctrine of riparian proprietorship (Pomeroy on Riparian Rights, § 132; Kinney on Irrigation, § 272), and as Tartar, plaintiff’s predecessor in interest, was the first settler upon the banks of that part of North Powder River, he had the privilege of making a prior and superior appropriation of its waters, or he could insist upon having the stream flow uninterruptedly in its channel through his land, subject, however, to the natural use of the water by upper riparian proprietors, and also to a reasonable use thereof by them in irrigating their lands, if the volume of water was sufficient to supply the natural wants of the different proprietors; but, having elected to divert the water, he could not thereafter stand upon his strict common law rights as a riparian proprietor: Low v. Schaffer, 24 Or. 239 (33 Pac. 678).
This being so, and plaintiff’s demands having been supplied, it would seem that it could not enjoin Coughanour from diverting water for irrigation until there had
It is conceded by defendant’s counsel that Ooughanour permitted sufficient water to pass the head gate of his ditch to supply plaintiff’s demand, and, after having done so, the water was diverted and appropriated by others before it reached plaintiff’s mill race, and that, having alleged these facts as a defense, the court erred in sustaining a demurrer to that part of the answer. The point contended for assumes that there is a defect of parties defendant, which is not-apparent from an inspection of the complaint, to correct which an answer is the only available pleading, and, being in the nature of a common law plea in abatement, it was incumbent upon defendant, if it be assumed that the court in one suit will settle the whole controversy, to name the parties whom he claims are necessary to a proper adjudication of the question, thus affording the plaintiff “ a better writ, ’ ’ and ask that they be brought in; but, having failed to do so, defendant waived his right, if it existed, and hence there was no error in sustaining the demurrer: 1 Chitty, Pleading, *446; Hawes, Parties to Actions, § 100; Bliss, Code Pleading (3 ed.), § 411; 1 Enc. Pl. & Prac. 14, 17 and 25.
It is also maintained that Welch and his grantees had no right to increase the appropriation of water in the operation of the mill after Coughanour acquired a right
Affirmed.