Oregon Lumber Co. v. East Fork Irrigation Dist.
157 P. 963
Or.
1916
Check Treatment

Opinion

Per Curiam.

1. This is a suit in equity, appealed to this court from a decree of the Circuit Court, to be tried here anew upon the transcript and the evidence accompanying it: Section .556, L. O. L. We are empowered to affirm, reverse, or modify, the determination of the trial court, and, if proper, may order a new trial: Section 557, L. 0. L. The legal effect of these Code sections is to put this court in the *572same situation occupied by the Circuit Court in relation to the instant litigation, so far as possible upon the record, and to do and decree as that tribunal might have done lawfully in the premises at any stage of the contest.

2. It is the consensus of opinion of all the members of this court who have been concerned in the hearing that it is impossible to determine accurately or satisfactorily from the evidence before us at least the amount of water due to each party, if not the order of priority between them. Moreover, the testimony discloses that similar water-using concerns are being supplied from the same stream, whose rights might be affected and ought to be settled by any apportionment of the flowage involved. In Section 6635, L. O. L., it is provided in substance that on the petition of one or more water users upon any stream, requesting the determination of the relative rights of various claimants to its waters, the state water board, as it is styled in Chapter 82 of Laws of 1913, shall take certain proceedings outlined in the following sections for the purpose of settling all rights to the water. That section concludes with this language:

“In case suit is brought in the Circuit Court for the determination of rights to the use of water, the case may, in the discretion of the court, be transferred to the board of control for determination as in this act provided. ’ ’

Under this excerpt, the suit having been brought by filing the complaint, as taught in Section 51, L. 0. L., that pleading is tantamount to and serves the office of a petition addressed directly to the state water board. At this stage of the litigation the cause was ripe for transfer to the board. The procedure established for such matters equips that body, so that it can ascer*573tain, and determine water rights in the first instance far more accurately and efficiently than any court can in the ordinary method based upon the usual pleadings and manner of taking testimony.

3,4. The validity of this legislation is discussed and affirmed In re Willow Creek, 74 Or. 592 (144 Pac. 505, 146 Pac. 475), in an opinion by Mr. Justice Bean. The argument need not be repeated here. It is sufficient to say that it provides for notifying all parties concerned in the stream involved, for expert measurement and examination, for adjustment and settlement by the board of relative rights and priorities, for contest of the correctness of the board’s findings by exceptions thereto supported by additional testimony, and ultimately for a decree of the Circuit Court embodying final results. Thus is preserved for every party in interest due process of law, for all have the constitutional “day in court” before a judicial tribunal endowed with jurisdiction to hear and determine the issues. We note that, under the statute, the case is not referred as to a referee to report testimony, but is “transferred” to the board “for determination as in this act provided.” This is not an abdication of jurisdiction, but is only a use of reformed procedure well adapted to a proper solution of such questions, the final result of which depends upon the judicial decree of the Circuit Court. In view of the uncertainties in the testimony to which we have alluded, we have decided to exercise the prerogative of reversal and direction of new trial vested in this court by Section 557, L. O. L., and remand the cause to the Circuit Court, with directions to transfer the same to the state water board for determination, treating the complaint as a petition for that purpose, giving the plaintiff leave to amend the same as it may be advised to *574adapt it to the procedure indicated, and remitting the defendant and all other persons interested in the adjudication to the operation of the system of litigation delineated in the water Code. Each of the present parties will be required to pay its own costs and disbursements thus far incurred, without regard to the final event of the suit.

The decree of the Circuit Court is reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed and Remanded.