70 P. 904 | Or. | 1902
Lead Opinion
delivered the opinion.
This is a special proceeding for the punishment of an alleged contempt. The affidavit of the relator, A. W. Turner, is to the effect that, having instituted a suit in the Circuit Court of the State of Oregon for Malheur County against J. L. Cole, B. F. Kendall, and G. J. Gray, it was decreed on December 6, 1898, in pursuance of the mandate of this court (Turner v. Cole,
It is contended by defendant’s counsel that there was no evidence introduced at the hearing tending to show any violation of the terms of the decree, and hence the court erred in overruling their motion for a judgment of nonsuit. All the testimony taken is attached to, and made a part of, the bill of exceptions, a consideration of which shows that the defendant placed a dam in Willow Creek, and diverted the water thereof in such a maimer as to prevent its flowing in a certain ditch extending from said creek through his land and that of the relator; and the principal inquiry is whether such diversion prevented the flow of water to the head of the ditch mentioned in the decree. At the hearing the relator introduced in evi
The transcript of that case does not now contain any map of the premises, and it may have been, as is sometimes the case, in the absence of a plat of the locus in quo-, that counsel at the trial sketched a general outline of the stream, ditches, and land, or it is possible that such statement was based upon the testimony of witnesses whose attention was not particularly called to the matter; but, however this may be, we think the opinion incorrectly located the head of the upper ditch, which taps the stream in the N. W. 44 °f section 10, and on Gray’s land, at the point indicated on the map. If the lower means of diverting the water be known as the ‘ ‘ Imbler Ditch, ’ ’ the defendant, as we understand, may, from his obstruction of the stream above the head of the upper ditch, divert the water on the southerly side of the creek, use it in irrigating his premises, and return the required quantity at the head of the lower ditch; thereby depriving Turner of the use of the water to irrigate his land, which lies on the easterly side of the stream. If, however, the lower ditch be the one specified, no disobedience of the decree has occurred; but, if the upper conduit be known as the “Imbler ditch,” it follows that the defendant is guilty as charged. It is impossible to reconcile the conflict in the testimony in respect to the identity of the ditch mentioned in the decree; the defendant and several of his witnesses stating that they had never heard the upper ditch called by that name until after the decree was rendered, and that the ditch specified in the decree taps Willow Creek on Turner’s land. J. L. Cole, appearing as defendant’s witness, testified that the lower ditch was constructed by a Mr. Price as a means of turning stock, and called the “Price or Fence Ditch,” but, the premises across which it was dug having been sold to Imbler,
Other errors are assigned, but, deeming them unimportant, the judgment is affirmed. Affirmed.
Rehearing
On Petition nor Rehearing.
delivered the opinion.
“It is therefore considered, ordered, adjudged, and decreed that the plaintiff and respondent, A. W. Turner, has a prior right of appropriation to one hundred inches of water from ■Willow Creek, under a six-inch pressure, to be measured at the head of the ditch known as the ‘Imbler’ or ‘Fence’ ditch, from the 1st day of April to the 15th day of July in each year, and fifty inches of water, to be measured at the same point under like pressure, for the remainder of the year, and that the said defendants and appellants, J. L. Cole, G. J. Gray and B. F. Kendall, and each of them, and all persons acting through or under them, their servants, agents, and employes, be and they are hereby perpetually enjoined from making any diversion of any water from Willow Creek which will in anywise conflict with the allowance made to the respondent, A. W. Turner, as above set forth. ’ ’
The part of the affidavit adverted to applicable to the question involved is as follows:
“I, A. W. Turner, being first duly sworn, depose and say that on the 6th day of December, 1898, in the Circuit Court of the State of Oregon for Baker County, in a suit pending wherein A. W. Turner was plaintiff, and G. J. Gray and J. L. Cole and B. F. Kendall were defendants, a decree was entered by the above-entitled court, in pursuance of the mandate of the Supreme Court of the State of Oregon, wherein and whereby it was ordered and adjudged that the said A. W. Turner was the appropriator and owner of a prior right of appropriation*267 of 100 inches of water from Willow Creek, by miners’ measurement, under a six-inch pressure, to be measured upon the premises of said A. W. Turner, at the head of that certain ditch Imown as the ‘ Imbler Ditch. ’ ’ ’
It is then stated that said decree is in full force, and that, at the time it was rendered, defendant was and now is the owner of certain real property situated upon Willow Creek, and also the owner of a ditch tapping that stream, and that since the decree was rendered he has, in violation thereof, intentionally diverted the water from flowing in the channel of the creek to the head of the Imbler Ditch. We think this affidavit sufficiently charges the defendant with a wilful violation of the terms of the decree, to which he was a party, and particularly specifies the manner of the infringement thereof, which consists in diverting the water from Willow Creek, and in preventing any of it from flowing in the channel of that stream to the head of the Imbler Ditch.
It is true that the relator’s affidavit states that the water is to be measured upon the premises of said A. W. Turner at the head of that certain ditch known as the “Imbler Ditch.” If the theory adopted by the relator at the trial of this proceeding be true, the head of the Imbler Ditch is not located upon his land, but upon the defendant’s premises, while the defendant’s theory is that the head of said ditch is correctly stated in said affidavit. The question involved was the identity of the ditch specified in the decree, and, when that issue was determined, the head of the Imbler Ditch would necessarily be located at the point where the ditch tapped Willow Creek, regardless of .whose land it might be situated upon. The implication in the relator’s affidavit that the head of the ditch in controversy is situated upon his premises is a circumstance tending to defeat his theory and to support that of the defendant; but we do not think such circumstance is controlling, or that the court erred in admitting testimony tending to show that the head of said ditch was on the defendant’s premises, he having been sufficiently notified of the issue involved by the statement that he had violated the provisions of the injunction
The judgnlent or decree is the declaration of the law applicable to the facts upon the issue involved, and, when the court rendering it has jurisdiction of the subject-matter and of the parties, it is binding upon them until modified or set aside in the manner prescribed for that purpose. An opinion is a written statement by the court of its reasons for the conclusion reached from an examination of the law and of the facts in controversy: Houston v. Williams, 13 Cal. 24 (73 Am. Dec. 565). The opinion forms no part of the judgment, though it may with propriety be consulted to explain an ambiguity therein: Keane v. Fisher, 10 La. Ann. 261. An examination of the decree in the case at bar shows that the Imbler Ditch is also called the “Fence” ditch. This designation in favor of the relator’s understanding of the names of these ditches would seem to render the decree ambiguous, thereby permit
The attention of the relator, A. W. Turner, having been called to the time he sold a certain farm, he was asked, on cross-examination, “Before that, the Imbler Ditch, the head of it, was about 300 yards below the Gray line ? ” to which he replied, “Yes, sir; the Fence Ditch. Q. I mean the ditch on the south side of Willow Creek. Before 1886 or 1887, where was the head of the Imbler Ditch? A. It was up in Mr. Gray’s field. ’ ’ Further, in his cross-examination, the attention of the witness having been attracted to the testimony which he had given in the suit resulting in the decree alleged to have been violated, he was asked: “ ‘Before that, where was the head of the Imbler ditch?’ and you answered, ‘About three or four hundred yards below Gray’s line.’ Did you say that? to which he replied: “If I did, I understood it to be the Price Ditch; not the east ditch as now. One heads above, the other below. That is the one I had reference to when the question was asked, on the south side of the creek. ’ ’ This witness having been recalled for further cross-examination, the following question was asked him: “You were a witness in the ease in which you were plaintiff, and Gray and others were defendants, in which this decree was rendered?” to which he answered: “Yes, sir. Q. Do you remember this Fence Ditch on the south side of the creek? A. That’s what it has always been called. ’ ’ The testimony of the relator would seem to indi
Believing, as we do, that the preponderance of the testimony shows that defendant wilfully violated the terms of the decree, the petition for rehearing is denied.
Rehearing Denied.