Umatilla Irrigation Co. v. Umatilla Improvement Co.

| Or. | Jun 9, 1892

Strahan, C. J.

This is not a suit to determine an adverse claim to real property, within the meaning of section 504, Hill’s Code. That section provides: “Any person in possession by himself or his tenant of real property, may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.” The slightest reference to this section is sufficient to show that the jurisdiction which the plaintiff invokes is not conferred by it. If a court of equity has the jurisdiction which was assumed in this case, it is not conferred by statute, but exists, if at all, as a part of the general equity jurisdiction.

It will be observed that the plaintiff nowhere claims that either of the defendants has at any time or in any manner interfered with its alleged rights to the water which it claims. The plaintiff shows that it incorporated, and filed sundry notices of its claim and maps, and did a very little work. The defendants did the same, though one of the defendants has perhaps done more work and expended a larger amount of money than has the plaintiff. In several parts of its complaint, the plaintiff alleges facts upon which it relies as reasons for equity assuming jurisdiction. This, for instance: “That if the appropriation of the plaintiff and all the pretended appropriations of the defendants, including the appropriations last mentioned, are allowed to hold good, all the water running in the natural channel of said river will be exhausted before it reaches said lands, and it will be necessary for a complete determination of the rights of this plaintiff in the premises to have an adjudication of the validity and priority of its appropriations with reference to the said alleged appropriations from Butter Creek and McKay Creek, as well as the alleged appropriations of the defendants hereinbefore mentioned.” It is then alleged that it will require six hundred thousand dollars to construct and equip said ditch and put the same in operation, and that the plaintiff is desirous of raising the same by floating bonds; that in order to enable it to do so, it is essential that the said bonds should be secured by mortgage or lien upon the ditch and flume of the plaintiff and their appurtenances, and upon the right of the water appropriated by the plaintiff and its franchises connected therewith; that the plaintiff is now engaged in an effort to float said bonds; but persons who otherwise would take them will not do so on account of the pretended claims of the defendants above set forth; nor until the plaintiff establishes its superior right to the waters of said Umatilla river and Wild Horse creek to the extent of its appropriations above mentioned; that consequently the pretended claims of the defendant, above set forth, and the assertion thereof in hostility to the plaintiff’s said appropriations, constitute clouds upon the title of the plaintiff to the water by it appropriated from said Umatilla river and Wild Horse creek, and are subjecting the plaintiff to great and irremediable injury.

The plain inference from all of this is that the plaintiff claims to have acquired a first right to this water, and wishes to put it in a ditch and flume, to be used for the purposes of irrigation by whoever will buy it; that it has not money enough to do the work without selling bonds, but that as long as the defendants are claiming to take a large amount of water from the same supply below the plaintiff’s point of diversion, no one will buy said bonds. In effect, this court is asked to certify that the plaintiff owns the water which it claims, for the purpose of enabling it to make sale of its bonds; at least, this seems to be the clear logic of the position. All of the rights claimed by the plaintiff or either of the defendants are, as yet, only evidenced by notices and maps; not a drop of water has been diverted. If the plaintiff has acquired a legal right to take the water from the streams mentioned, there is nothing to prevent its doing so, at least so far as this record discloses. If, in the development of its project, any person should wrongfully interfere with water to which it might then be able to show itself entitled, no doubt a court of equity would, upon a proper showing, restrain such interference; but as yet nothing comparatively has been done by the plaintiff, and the defendants have in no manner disturbed it in the exercise of any of its rights or franchises. The plaintiff may never construct a ditch or flume; and if it did, and is entitled to the water, it is not to be presumed or intended that the defendants would violate the plaintiff’s rights; at least, if it is of the opinion that the defendants intend to do so, it must wait for some overt act that injures it. An intent not acted upon is not actionable. Much of the plaintiff’s contention was devoted to the various notices filed by it and placed of record with the county clerk.

In the view taken of this case, it is unnecessary to consider the effect of these several notices; but it may not be improper to remark that the statute under which the proceedings of the plaintiff, as well as the defendants, were taken, is one requiring a strict construction; and whatever rights either party acquires under it must be done by a strict compliance with its terms. No favorable intendment or liberal construction can be tolerated in the enforcement of such a statute. (Watson v. Acquackanonck Water Co. 36 N. J. L. 295; Central R. R. Co. v. Hudson Terminal Co. 46 N. J. L. 289; Cox v. Tipton, 18 Mo. App. 450" court="Mo. Ct. App." date_filed="1885-06-15" href="https://app.midpage.ai/document/cox-v-tipton-6614814?utm_source=webapp" opinion_id="6614814">18 Mo. App. 450; Sugar Refinning Co. v. St. Louis Grain Elevator Co. 82 Mo. 121" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/belcher-sugar-refining-co-v-st-louis-grain-elevator-co-8007902?utm_source=webapp" opinion_id="8007902">82 Mo. 121; Chicago etc. R. R. Co. v. Wiltse, 116 Ill. 449" court="Ill." date_filed="1886-03-27" href="https://app.midpage.ai/document/chicago--eastern-illinois-railroad-v-wiltse-6963013?utm_source=webapp" opinion_id="6963013">116 Ill. 449; The Miami Coal Co. v. Wigton, 19 Ohio St. 560; Alabama etc. R. R. Co. v. Gilbert, 71 Ga. 591" court="Ga." date_filed="1883-11-20" href="https://app.midpage.ai/document/alabama-great-southern-railroad-v-gilbert-5561063?utm_source=webapp" opinion_id="5561063">71 Ga. 591; Sharp v. Speir, 4 Hill, 76; Ball v. Lastinger, 71 Ga. 678" court="Ga." date_filed="1883-09-18" href="https://app.midpage.ai/document/ball-v-l-e--w-h-lastinger-5561083?utm_source=webapp" opinion_id="5561083">71 Ga. 678; Bensley v. Mountain Lake Water Co. 13 Cal. 306" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/bensley-v-mountain-lake-water-co-5434112?utm_source=webapp" opinion_id="5434112">13 Cal. 306; 73 Am. Dec. 575; Bloom v. Burdick, 1 Hill, 130; 37 Am. Dec. 299; In re Water Comrs. 96 N.Y. 351" court="NY" date_filed="1884-06-24" href="https://app.midpage.ai/document/matter-of-water-comrs-of-amsterdam-3633049?utm_source=webapp" opinion_id="3633049">96 N. Y. 351; Keller v. Corpus Christi, 50 Tex. 614" court="Tex." date_filed="1879-07-01" href="https://app.midpage.ai/document/keller-v-city-of-corpus-christi-4893185?utm_source=webapp" opinion_id="4893185">50 Tex. 614; 32 Am. Rep. 613; Dent v. Ross, 52 Miss. 188" court="Miss." date_filed="1876-04-15" href="https://app.midpage.ai/document/dent-v-ross-7984649?utm_source=webapp" opinion_id="7984649">52 Miss. 188; Lombard v. Whiting, Walker (Miss.), 229; Willard v. Fralick, 31 Mich. 431" court="Mich." date_filed="1875-04-13" href="https://app.midpage.ai/document/willard-v-fralick-7927989?utm_source=webapp" opinion_id="7927989">31 Mich. 431.)

Further discussion seems to be unnecessary. The plaintiff has failed to bring itself within any principle of equity jurisdiction which would enable a court of equity to con-, sider or pass upon the supposed rights alleged in its complaint, and the counter-claims pleaded by several of the defendants must fail for the same reasons. Within what we conceive to be the well-established doctrines of equity, neither party has as yet done anything to invite or justify equitable interposition.

Entertaining these views, we must reverse the decree and dismiss the suit.