199 P. 587 | Or. | 1921
These suits are here for the purpose of a trial de novo. After reading about 900 pages of typewritten testimony, we are thoroughly convinced that an accurate decree determining the water rights in question cannot be predicated upon the record. It also appears that there are other claims to a portion of the water involved, made by persons who are not parties to this suit. Any decree that might be rendered would probably affect the rights of at least one person, not a party to either of these suits. A final adjudication of the water in the streams in question should be made so that there could be a practical administration thereof, which we do not think can be accomplished at this time. The measurements of the streams taken by the different parties were taken at different times and places, and are conflicting and unsatisfactory. The topography of the country is somewhat peculiar to that locality. Impartial measurements of the water in the streams, and an examination of the land should be made before the matter is finally determined. This can best be accomplished by transferring the suits to the water board for determination under the provisions of Sections 5731 et seq., Or. L. Section 5731 provides in part:
“In case suit is brought in the Circuit Court for the determination of rights to the use of water, the*238 case may, in the discretion of the court, he transferred to the board of control for determination as in this act provided.”
Authority for the procedure indicated is found in Oregon Lumber Co. v. East Fork Irr. Dist., 80 Or. 568 (157 Pac. 963). Precedent for bringing in all of the parties interested is also noticed in the case of Hough v. Porter, 51 Or. 318 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728), as indicated by the first syllabus, which reads:
“Where, in a suit to determine water rights in a stream for irrigation purposes, the determination of the rights of the litigants could not otherwise have been had with reasonable accuracy, nor the decree, when entered, effectively enforced, without the presence of other parties, the court was authorized to direct that they be brought in and made parties, under Sections 41, 394, B. & C. Comp. (Sections 41 and 394, Or. L.), providing that, when complete determination of a controversy cannot be had without the presence of other parties, the court shall cause them to be brought in.”
Uniformity and a practical administration of the Water Code of this state necessitate adjudication of water rights like those upon the streams in question by the water board, to the end that the decrees may be enforced and the laws administered as contemplated by the statute. Had an application to the water board been made at a much earlier date for a determination of the water rights of the several streams mentioned, it would have been a saving of time, labor and expense. In view of the condition of the record, we have concluded to exercise the prerogative of reversal of the decree in these suits, with a direction for a new trial: Section 557, Or. L. The suits will be remanded to the Circuit Court with directions to transfer the same to the state water
The decree of the Circuit Court is reversed and the causes remanded for further proceedings in accordance with this opinion.
Reversed and Remanded.