90 P. 1110 | Or. | 1907
Opinion by
This is a special proceeding instituted in this court by the State of Oregon, upon the relation of F. M. Ghrisman and C. D. Porter, against George H. Small, to punish him for an alleged contempt. The facts are that Annie C. Hough, having commenced a suit in the circuit court for Lake County against S. A. D. Porter to enjoin him from interfering with the flow of water in the channel of Silver Creek to her premises, the relators herein and Small were made parties defendant by order of the court, and, issues having been joined, a trial was had, and it was decreed April 7, 1905, that the defendant herein made the prior appropriation of water from that stream and was entitled to use 650 inches thereof for the irrigation of 1,400 acres of land. The injunction prayed for was granted, and the rights of all the parties were determined. An appeal from that decree was perfected October 19, 1905, by the relators and others, who gave an undertaking therefor, in which it was stipulated that they would pay all damages, costs and disbursements that might be awarded against them on the appeal, and the transcript was thereafter filed in this court. It is stated in the initiatory affidavit of the relators that about May 16, 1906, and while there was sufficient water flowing in Silver Creek to furnish the appellants the quantity decreed to each, respectively, Small, in violation of a stay of proceedings in the suit mentioned, maliciously turned the water out of the channel of that stream and away from the relators, and his continuous diversion, in July and
“In cases not provided for in such subdivisions, when an appeal is perfected, with an undertaking for the appeal only, proceedings shall be stayed as if the further undertaking thereof had been given”: B. & C. Comp. § 551.
Subdivision 2 of Section 550 provides that an appeal from a judgment or a decree given for the recovery of land, or for the partition thereof, does not operate as a supersedeas, unless the undertaking stipulates that during the possession of the real property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or de
The supplemental affidavit of the relator Porter is to the effect that, during the irrigating seasons of 1905 and the following year, the channel of Silver Creek, from the head of Bunyard Branch to a line below the premises of which he has charge, was dry, and in consequence thereof he was unable to irrigate such lands, except in the early seasons, when a freshet caused by melting snow filled the banks of the stream; that the supply of water from Bunyard Branch is inadequate properly to irrigate that part of such premises as are moistened by water taken from that fork, the bed of which is at least two and one-half feet higher than the bottom of the channel of Silver Creek; and that in 1906, when the affiant could not secure any water for irrigation, there were at least 200 inches of water flowing off the defendant’s land, parallel with Island Branch, to the premises of other parties to the principal suit, who are Small’s
T. J. La Brie’s affidavit is to the effect that about August 1, 1904, he placed a dam at the head of Bunyard Branch to free his meadow from moisture, so as to cut the hay thereon, and that about 20 days thereafter he told William Kittredge he might remove the obstruction, and the next morning after granting the permission the water flowed in the channel of that branch through his premises. Kittredge’s affidavit states that he took out the dam at the time mentioned. It is quite probable that the entire obstruction was not removed, and that there.was left in the channel of the branch part of the dam which Reeder and Lane saw about two years after it was built. It will be remembered that Porter’s affidavit states that the bed of Bunyard Branch is at least two and one-half feet higher than the bottom of Silver Creek. P. W. Jones deposes that such difference is
We think the preponderance of the evidence conclusively shows that the estimate given by the persons last named is correct, and that the channel of the main creek has not been lowered in any manner by the defendant; nor did he place any obstruction in the head of Bunyard Branch after the decree was rendered. The testimony taken at the trial of the principal suit shows that in 1885 a trench was dug from the east side of Silver Creek, commencing at a point on the defendant’s land above the head of Bunyard Branch, which conduit is known as the “Old Corum Ditch,” and owned hy T. J. La Brie and his wife. W. C. Busiek and James Small, who, after April 7, 1905, the day when the decree in such suit was given, changed in some particular the course of the old ditch, calling the alteration the “New Corum Ditch,” which commences at a point in the old ditch some distance below its head, where the water is diverted into a conduit owned by the defendant and called the “Old Ab-shire Ditch,” in which it flows about 300 yards and is then conducted easterly in the new ditch. The defendant permitted the alteration to be made in the ditch across his premises, and aided in its construction, and also exchanged the Old Abshire Ditch for that part of the Old Corum Ditch which extends
It is maintained by the relator’s counsel that, the undertaking on appeal having performed the office of a supersedeas, the statu quo of the flow of water in Silver Creek to the relators’ land should have been maintained by the defendant after the decree was rendered as it existed immediately prior to the time the principal suit was instituted-; but, as he has diverted a greater quantity of water from that stream since that time than he did prior thereto, he is guilty of constructive contempt of this court, and should be punished for such violation. If, before the decree was rendered, Small had never used any water from Silver Creek for irrigation, but, after he was awarded 650 inches thereof, he began to divert the measure granted him under an assertion of a right thereto, based on the court’s decision, it would be possible to determine with certainty that the statu quo of the flow of water in the channel of the stream to the relator’s lands had been disturbed by him. The testimony shows, however, that for many years prior to 1905 he had been using the water of Silver Creek for irrigation, under a claim of right thereto by an alleged prior appropriation thereof. Whether or not his right to such use is superior to the claim of all other parties to the principal suit, and, if so, what is the measure of the quantity to which he is entitled, are questions the considera