61 P. 1129 | Or. | 1900
delivered the opinion.
In August, 1896, W. C. Stites and another, claiming to be the owners by prior appropriation of one hundred and sixty inches of water from Munger Creek, in Josephine County, brought a suit to enjoin Jas. O. McGee and others from interfering with their use thereof. Before an answer had been filed or issue joined, the parties, for the purpose of settling the controversy, stipulated in writing that the plaintiffs are the owners and entitled to the prior use of one hundred and forty inches of the waters of the stream, measured under a six-inch pressure, to be delivered in the channel sixteen and one-half feet below McGee’s dam, through a box on a grade of one-fourth inch to the rod, to be constructed and maintained by the defendants, and that a decree be entered accordingly. Thereafter, and on.the thirtieth of September, 1896, the respective parties appeared in court by their attorneys, and, “consenting and agreeing’’ thereto, a decree was duly entered in accordance with the stipulation, which was recorded in full in the journal, and made a part of the decree. At a subsequent term, but within a year after the rendition of the decree, the defendants moved to set it aside and for permission to answer, on the ground that the stipulation was made and their consent to the decree given under a mutual mistake of the parties as to the actual quantity of water flowing in the channel of the creek at the defendant’s dam. This motion was allowed, and the plaintiffs appeal.