Wattles v. Baker County

| Or. | Jul 18, 1911

Mr. Justice McBride

delivered the opinion of the court.

Plaintiff is the first water master appointed under the water code of 1909, and, while the amount involved in this action is small, yet, in view of the future operations of the Board of Control, in relation to the supervision of irrigation in this State, the questions arising upon this appeal are important.

The first question arising may be briefly stated as follows: Has the Board of Control any jurisdiction to supervise the distribution of the irrigation water taken from a stream before the rights and priorities of the parties have been determined, as provided by chapter 216, Session Laws of 1909? The Board of Control consists of' two division superintendents and the State Engineer. Section 4 of the act cited is as follows:

“Said division superintendent shall have general control over the water masters of the several districts within his division. He shall execute the laws relative to the distribution of water, and perform such other functions as may be assigned to him. He shall have authority to make such reasonable regulations to secure the equal and fair distribution of water in accordance with the determined rights as may be needed in his division. Such regulations shall not be inconsistent with the laws of the State.”

The extent of the jurisdiction of the Board of Control or division superintendents depends upon the construction to be given to the words “determined rights” used in the above section. In our opinion, this interpretation is to be found in sections 11 and 24 of the chapter cited. Section 11 is as follows:

“Upon a petition to the Board of Control, signed by one or more water users upon any stream requesting the determination of the relative rights of the various claimants to the waters of that stream, it shall be the duty of the Board of Control, if, upon investigation, they find the facts and conditions are such as to justify, to make a determination of the said rights, fixing a time for beginning the taking of testimony and the making of such examination as will enable them to determine the rights of the various claimants. In case suit is brought in the circuit court for the determination of rights to the use of water, the case may, in the discretion of the court, be transferred to the Board of Control for determination as in this act provided.”

Section 24 provides that, “as soon as practicable after the compilation of said data, and the filing of said, evidence, it shall be the duty of the Board of Control to make, and cause to be entered of record in its office, an order determining and establishing the several rights to the waters of said stream.” This determination is then to be entered in the records of the board, and is in full force and effect from.the date of such entry, unless a stay bond is filed, as provided in the act. A copy of the order, together with the evidence, is filed in the circuit court, and a time is fixed by the circuit judge for the hearing of such determination; and, if no exceptions to the determination are filed within the time set for a hearing, the court enters a decree affirming the determination.

By the provisions of section 27, it is made the duty of the clerk of the circuit court to transmit a certified copy of the decree to the secretary of the Board of Control, and when the same is recorded the State Engineer, who is ex officio president of the board, is required to issue instructions to the superintendents of water divisions in compliance with the decree and in execution thereof. Section 36 is as follows:

“The Board of Control shall divide each water division into water districts, and said water districts to be so constituted as to secure the best protection to the claimants for water and the most economical supervision on the part of the State; said water districts shall not be created until a necessity therefor shall arise, but shall be created from time to time as the claims thereof from the streams of the State shall be determined.”

The succeeding section provides for the appointment of a water master, and among his other duties, as defined in section 38, he is given authority “to regulate the distribution of water among the various users under any partnership ditch or reservoir, where rights have been determined, in accordance with existing decrees.” Section 63 provides that, when two or more persons are joint owners in an unincorporated ditch, and are unable to agree as to the distribution of the water from the same, they, or either of them, may apply to the water master to take charge for the purpose of distributing the water; that he may do so for the purpose of dividing the water in accordance with “established rights”; and that the users shall pay the expense of such services in accordance with the established rights of the parties.

1. Taking all these provisions together, we are of the opinion that the words “established rights,” “determined rights,” and “existing decrees,” used in the act, refer only to such rights as are determined and established by the action of the Board of Control, pursuant to the act of 1909, and to decrees made under the provisions of the same act; and that for that reason the water master had no authority to act in the matters set forth in the complaint. The intent of the act seems to be to place the control of irrigating water under the jurisdiction of the Board of Control as rapidly as rights are determined by it, and become a matter of record in its office. When the board convenes to determine such rights, prior decrees, m.ade independent of action by the board, are conclusive upon it as between the parties to such decrees, and thereafter the rights established thereby may be enforced by the water master, the same as though they had been originally determined by the board. But, in the absence of such determination in accordance with the water code, such rights must be enforced by the court making the decree.

2. Where the water master performs work at the direction of the division superintendent, as provided in section 42, he is not required to attach a copy of the order of his superior officer to his bill for services, as is required when the demand is made by water users.

3. The third cause of action stated is sufficient, and the demurrer should have been overruled.

The judgment of the circuit court is affirmed as to the first and second causes of action and reversed as to the third. Appellant will recover his costs in this court.

Affirmed in Part: Reversed in Part.