49 P. 971 | Or. | 1897
Opinion by
The purpose of this suit is to determine the priority of conflicting water rights as between Turner, one of the plaintiffs, and the defendants Cole and Kendall, and C. J. Gray. The plaintiff claims to have acquired his right by appropriation and use of the waters of Willow Creek, diverted therefrom by means .of two ditches, which tap the creek, one upon each side, in the southeast quarter of section ten, township sixteen south, range forty-three east, in Malheur County. Willow Creek runs in a southeasterly course, and these ditches are so constructed that they encompass upon the north, east, and west the principal portion of plaintiff’s lands. Within their compass are found, also, some road lands used by plaintiff, and adjoining his. The ditch through which Gray claims his appropriation taps said creek about one and a half miles above those of plaintiff, and the Cole and Kendall ditch some eight miles above. The questions to be considered are almost exclusively of fact, and, there being much conflict in the testimony, no good purpose can be served by attempting to harmonize it, and hence we will briefly state our conclusions without comment thereon.
Turner is now the owner of the southeast quarter
Modified.