86 P. 775 | Or. | 1906
delivered the opinion of the court.
The questions presented by this appeal, are whether or not the appropriation, as alleged in the answer, is valid and the evidence thereof adequate. The testimony shows that about 1849 a dam was built near the mouth of Little Pudding River, whereby the water thereof was retained and also backed up in what was originally called “Lake Labish,” through a part of which-that stream flows. This dam was about eight feet high and the backwater therefrom extended the surface of the lake four miles, making it in some places a half mile wide. In 1851 and the following year a sawmill and a flouring mill were respectively built near the dam, from which races were dug and the water in the pond was conducted therein to the mills, where it was used in operating them. In the winter the water is occasionally so high, and in the summer it is sometimes so low, as to prevent the manufacture of lumber or flour, but, except at such stages of the river, the mills referred to have been eontinu
These preliminary matters having been disposed of, the question of whether or not the water of Little Pudding River and of Lake Labish was subject to a valid appropriation, will next be considered. The application for the establishment of the Parkersville Drainage District presented to the county court of Marion County, a copy of which was offered in evidence, shows the area of land claimed to have been owned by the several petitioners, but whether their title was derived immediately or mediately from the United States is not disclosed, except as to such lot 3, which was conveyed as alleged in the complaint, but the patent therefor contained no clause exempting from its operation any accrued or vested water right. The deed executed for such lot by the State of Oregon to Yallier Wattier, from whom Miller’s representatives derive their title by decree of this court, was not offered in evidence, so .it is impossible to specify whether or not the state reserved any water rights from the operation of its conveyance of the premises. We shall take it for granted, however, that no such reservation was made, and shall further assume that all the real property in the drain
The legislative 'assembly of this State in 1868 passed an act (Laws 1868, pp. 21, 22,, § 9) authorizing the drainage of land, which contains the following provision:
“This chapter shall not be construed so as to interfere with*339 the rights of companies or individuals for mining, manufacturing, or watering towns or cities’!: B. & C. Comp. § 4368.
In 1885 an, act was passed granting to individuals and to corporations rights of way over swamp and other lands belonging to the State, to construct ditches for manufacturing purposes: B. & C. Comp. § 3338. In 1899 another law was enacted which provided that all existing appropriations of water for beneficial purposes should be respected and upheld, "nor shall any existing mill be deprived of its water power, however lawfully acquired, without the consent of its owner”: B. & C. Comp. § 5032. These provisions are mentioned to illustrate the very liberal policy pursued by the legislative assembly in recognizing the rights of settlers to divert and use the water flowing through the lands owned by the State of Oregon. The act of Congress of July 26, 1866, authorizing the diversion of water from streams flowing through the public domain, was the acknowledgment of a previous right instead of the creation of a new one: Atchison v. Peterson, 87 U. S. (20 Wall.) 507 (22 L. Ed. 414); Basey v. Gallagher, 87 U. S. (20 Wall.) 670 (22 L. Ed. 452); Forbes v. Gracey, 94 U. S. 762 (24 L. Ed. 313); Jennison v. Kirk, 98 U. S. 453 (25 L. Ed. 240); Broder v. National Water Co. 101 U. S. 274 (25 L. Ed. 790). In Carson v. Gentner, 33 Or. 512 (52 Pac. 506, 43 L. R. A. 130), the plaintiff maintained a ditch across certain lands owned by the State of Oregon which it thereafter conveyed to tha, defendants without reserving any accrued or vested water rights from the operation of the deed. The defendants having intermeddled with the ditch, it was held, in a suit to enjoin such interference, that the plaintiff had the right to enter upon their premises to repair the conduit. In referring to what is now incorporated in B. & C. Comp, as Section 3338, and alluding to the policy of the State of Oregon in enacting the clause herein-before quoted, it was said: "This statute was a legislative sanction, confirmatory of the customs of miners, and, like the act of Congress of July 26, 1866, was the recognition of a preexisting right, rather than the granting of a new easement in its real property.”
The evidence shows that in surveying the donation land claim on a part of which the defendants’ mills are erected, Lake Labish was meandered so as to conform to the margin thereof as made by the backwater from the dam in Little Pudding Eiver. The lot mentioned was thereafter surveyed and, assuming that all the lands in the drainage district are of the same kind and the titles thereto were derived from the same source and pursuant to the same act of Congress as the premises owned by Miller’s representatives, all the persons affected by the backwater evidently secured their lands with knowledge of the encroachment thereon.
It follows from these considerations that the decree should be reversed and the suit dismissed, and it is so ordered.
Reversed.