69 P. 455 | Or. | 1902
delivered tlie opinion.
The plaintiff being the owner of 1,520 acres of land through which the Umatilla River, a nonnavigable stream, flows, seeks to enjoin the defendant from diverting any of the water thereof in disregard of its riparian rights. Formerly a slough at the mouth of Alkali Canyon, near the center of section’ 21, township 3 north, range 29 east, extended from the river in a northwesterly direction for one fourth’ to a half mile, skirting a rocky bluff in a semicircular form. About the year 1865 one Lowe and his brother constructed a ditch for some distance, to be used for floating logs and mining purposes, taking the water out of the northernmost end of the slough. What use was eventually made of it does not appear, and the brothers finally abandoned the enterprise. On the 12th of December, 1891, there was incorporated by M. C. Tribble, O. Teel, and Henry Baumgardner a company known as the Umatilla Meadows & Butter Creek Co., the initial purpose thereof being to build and construct a canal or canals for a system of irrigation on the Umatilla Meadows and Butter Creek lands in Umatilla County. The meadows are situated below the head of the proposed canal, along and to the west of the Umatilla River, extending down to the lands of the plaintiff, some five or six miles below, and Butter Creek is some eight or ten miles distant to the west and northwest. A portion of the canal was constructed in 1891 and 1892, the exact extent of which does not appear. For some distance below the mouth of the Lowe Ditch it occupied the identical course, but was extended along the slough, and connected directly with the river at the mouth of Alkali Canyon. Water was diverted through this ditch, and some use made of it from that source. A little later the Columbia Valley Land & Irrigation Co., a corporation of which W. W. Caviness was the president, constructed a large canal by increasing the capacity of the Meadow Ditch from its head down to what is known as the “drop” in the former, about a quarter of a mile below the head of the Lowe Ditch, from which it diverged, and continued in its own route
No privity of estate has been shown between any of the in-corporations, and no attempt has been made to establish any, except there is some evidence that the Columbia Valley Co. purchased the right of way of the Meadows Ditch, and the parties owning the latter became interested to some extent in the former. J. IT. Koontz testifies that he transferred his stock to the Columbia Valley Co. in consideration of an agreement upon its part to furnish him 140 inches of water for irrigation. He was then living on the place subsequently purchased by Fred Andrews. Later he became interested in the Allen Ditch, and used the water, as needed, from all three of the company ditches; and when he sold to Andrews assigned to him his interest in the Allen Ditch. The plaintiff contends that no water was ever used through any of these ditches prior to 1890, and not until within ten years of the time this suit was instituted, to wit, May 5, 1900. The defendant’s title is based upon a prescriptive right, — that is diversion and adverse user for a period of more than ten years last past, — and that constitutes the principal question in the ease. The defendant does not claim to be the owner of the water, or have any right to use it, but that it is a managing concern for its better control and distribution among those entitled to it. There was an attempt
Mr. Koontz testifies that he assisted in the construction of the Meadows Ditch, and that there was then no water running in the Lowe Ditch, and but slight traces left of the ditch itself. There is other evidence of like import. Upon the other hand, however, there has been such an array of witnesses asserting to the contrary that it must be conceded as a fact that the Lowe Ditch, or such as the farmers enlarged and extended, carried water long prior to 1890. M. C. Tribble testifies that water has been flowing through a ditch within a quarter of a mile of his house since he began living there in 1877; that the ditch led to what is known as “Teel’s Lower Place,” and through Baumgardner’s place down the other way, and came from the mouth of Alkali Canyon, practically where the Allen Ditch Co. takes its water; that the ditch referred to has been known as the “Lowe Ditch;” that Dr. Teel cleaned it out at that time, and has been using water therefrom more or less ever since; that after the Lowes left, witness, Teel, Templeton, and others, and the neighbors generally, worked on the ditch, and that about the same volume of water has been flowing through it from that time to this; that witness is one of the original incorporators of the Allen Ditch Co., and that the persons composing it were Teel, Allen, Koontz, Mrs. Elvira Teel, anci himself; that the farmers claim the water distributed through the ditch, and that the original appropriators have never sold to the company. O. Teel testifies that prior to 1877 water was conveyed by a ditch through lands at present owned by his mother, Tribble, and Allen, and onto his father’s place, being
Now, as to the use. Prior to 1890 it is probable that there was but little of the water used for irrigation in the ordinary way. There was some subirrigation, and much of it utilized for stock and domestic purposes. M. C. Tribble began the use to some extent prior to that time, even as far back as 1877, and has since reduced to cultivation from 80 to 90 acres of his land, and irrigates the same, together with an orchard and shrubbery. O. Teel began the use at the upper Teel place in 1887 or 1888, and now irrigates from 170 to 180 acres; and at another place he utilizes the water for stock purposes, and until recently for irrigation. M. T. Allen uses it for irrigating 30 acres of alfalfa, besides other ground for grain, orchard, and shrubbery. Fred Anderson uses it on 50 acres or more; T. C. Smith on 40 to 50 acres; Dr. C. J. Smith on 60 to 70 acres; and others might be mentioned, but, suffice it to say, the evidence shows that the water is now employed for irrigating 600 acres or more, besides orchards and shrubbery, and for stock and domestic purposes. Out of the 600 acres, the use for 120 or thereabouts is paid for at the rate of $1.50 per acre by individuals who were not concerned in the construction of the ditch and the diversion, or have not succeeded to the rights of those who were. Of course, some of the persons instrumental in making the diversion have since parted with their lands, but the use of the water has continued appurtenant thereto, and the present owners have thereby acquired the rights of their predecessors.
In this view the farmers whom the defendant represents are entitled to so much of the water as they are now employing for a useful purpose. Most of it was so employed early in the last decade, and has been continuous to the present time. Several witnesses state that about the same quantity of water flowed in the old Lowe Ditch as is now being carried by the Allen Ditch, and some are of the opinion that the latter carries more by a fourth. All of that which is carried seems to be used, but a portion is being sold to outside parties, as we have seen. The defendant claims 2,400 inches, but the evidence adduced does not establish its title to this amount. One or two witnesses testify that the ditch, a short distance below the head gate, carries to the depth of two feet, being eight feet or more in width. Mr. Kimbrell, one of the plaintiff’s witnesses, a surveyor and civil engineer, says he measured the water at the head gate, and that it was one foot deep by seven and a half feet in width. The measurement was taken eight feet below the head gate. But he further states that the water was nearly two feet in depth above the head gate, and that there must have been one foot pressure. This is the most definite statement that we find in the record as to the amount of water being diverted. An orifice seven and a half feet by one foot with a 6-inch pressure will probably pass down to the defendant about the amount of the original diversion, thus giving.it 1,080 miners’ inches, as understood by many persons of practical experience, and not more than that, to which it is entitled.
We have not considered the rights of any of the parties whom the defendant represents as riparian owners. Under