169 P. 117 | Or. | 1917
delivered the opinion of the court.
These witnesses are corroborated by Earl N. Shahan, who testifies that appellant told him in July, 1915, that plaintiff was entitled to half the water in the ditch.
So far as the making of the agreement is concerned, appellant’s case rests wholly on his own testimony. He squarely denies that any agreement was made. He proves that the amount of water in the ditch is inadequate for his own purposes and argues that it is unlikely that he would make the contract alleged. The answer to this argument is that it appears that the flume required replacement and that appellant was without means to replace it. Unless the necessary work was done, the water would flow in its natural channel and would be available neither to appellant nor to plaintiff. Under these circumstances the contract alleged by plaintiff was a natural agreement for appellant to make.
Appellant admits that plaintiff purchased the pipe and paid laborers for putting it in place. He claims
The admitted facts that plaintiff defrayed the expense of installing the pipe-line and that defendant co-operated by donating his labor strongly corroborate plaintiff’s testimony. On the whole case the preponderance of the testimony supports the conclusions of the lower court that the agreement was made as alleged.
“That the plaintiff also has and'possesses the right to divert from said stream at said point, and through said ditch and pipe-line to said place, and for said purposes an additional one fourth of the water flowing in said stream until such time as there shall be paid to plaintiff by the owner of the land adjoining plaintiff’s said land on the south or by the defendant Geo. Kirkpatrick, the sum of $29.62, with interest from June 1, 1914.”
This language referred to that part of the water which belonged to H. H. Gramps, whose property adjoins plaintiff’s on the south. It may be that plaintiff is entitled to a lien or charge on this water, but such lien cannot be adjudicated in this suit to which Gramps is not a party. Plaintiff alleges that he is the owner of one fourth of the water in this ditch. So much of the decree as awards him a larger share is without the issues and should be eliminated. The decree, so modified, is affirmed. Neither party will recover costs on appeal. Modified.