105 P. 396 | Or. | 1909
delivered the opinion of the court.
A careful examination of the record discloses the following state of facts: The south fork of Burnt River is a perennial stream, furnishing a supply, during the dry period of each year, of from 20 to 40 second-feet of water, and rises near the southwest corner of Baker County, flowing northeasterly through an arid section of country, for a distance of about 12 miles, where it empties into the main channel of Burnt River. In 1880 Thos. J. Whited, one of the plaintiffs, settled on the south fork of Burnt River, where he has since resided. Some time
1. In the spring of 1884, J. M. Laport initiated a water right through what has since been known as “Powell’s East ditch,” which was used during that season in the irrigating of three or four acres of land. In the year 1887, Laport initiated another water right, higher up the river, by digging a few rods of ditch, tapping the stream at a point on the west side of Section 13, and, a few months later, entered into an agreement, respecting this contemplated appropriation, with John Powell, and, as a result, had surveyed what is known as the “Powell-Laport ditch.” Along this line of survey they dug in 1887, a ditch, tapping some warm springs situated near the river and secured thereby, for irrigation purposes, a flow of 75 to 100 inches. The following year this canal, for the purpose of irrigating the Powell and Laport farms, was extended up the stream to a point where it connected with the few rods of ditch last mentioned, tapping the south fork of Burnt River, and diverting therefrom a larger quantity of water. This ditch has a carrying capacity of 360 inches, having been extended from year to year until 1894, when it was completed to the point of its present use. What is designated as the “Campbell” or “Elms” ditch taps the south fork of Burnt River near the center of the north line of Section 23, and is used in the irrigación of the lands of some of the non-answering defendants. The construction of this ditch was begun about the year 1888, and subsequently enlarged, the extent of which is not clear; but in 1894 it was increased to its present carrying capacity, estimated at 554 inches. The
2. It is well settled in this State that, under such circumstances, plaintiffs’ rights relate back to the commencement of their work in 1883, and that Thomas J. Whited’s rights therein attach at an earlier period, the date of which is not material to this controversy. Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472:
Plaintiffs do not, in this proceeding, assert any claim to a water right, as against defendants, through the Tiger ditch, but seem to rely upon the rights acquired by their enlargement and extension, in 1883, of the Wham-Whited Upper ditch. The answering defendants (appellants), however, set up their rights, and claim, as prior appropriators against the plaintiffs, all of the water required to fill their ditches, except 50 inches (without pressure), conceded as a first right to Thomas J. Whited, and (excepting the 400 inches here awarded plaintiffs) have established a prior right to such quantity as was diverted and in actual use by them in 1895, when the Tiger ditch was built. But the quantity required and actually appropriated, and acreage upon which applied, at that time, is not sufficiently established to enable us to determine the quantity which should be awarded them as a second
4. On the other hand, it is clear that not only is there no intention to abandon any land irrigated through plaintiffs’ first ditch, but that the Tiger ditch, and diversion through it, is intended for use upon additional lands. In fact, it is evident that this is a new. and additional appropriation, in which persons other than plaintiffs’ are interested, and must be treated as such. Any person or number of persons may have an interest in, or become the exclusive owner or owners of, different water rights, each of which rights may have had their inception at different times, and in such cases the order of their respective priorities must necessarily depend upon the dates of the initiation of each particular right. Long, Irrigation, §§ 58, 59.
Under this state of the record, we deem it advisable not to attempt a determination of any rights between either the plaintiffs or defendants, relatively or otherwise, respecting the water rights claimed through the Tiger ditch by the plaintiff Whited or others, further than that the appropriation through this canal, whatever
5. Plaintiffs, however, insist upon a right, through their appropriation of 1883, for all lands brought under cultivation since that date; but this contention cannot be upheld. The right to water, claimed by prior appropriators for irrigation purposes, is always limited in quantity by the use for which the appropriation is made, and to which it may, in a reasonable time, be applied.
6. It is so well settled as almost to become axiomatic that beneficial use and the needs of the appropriators, and not the capacity of the ditches, or quantity first run through them, is the measure and limit of the right of the appropriators.
7. ' While the quantity to which the appropriators may be entitled does not necessarily equal the carrying capacity of the ditch, the capacity thereof is essentially the utmost limit of such right. Seaweard v. Pacific Live Stock Co., 49 Or. 157 (88 Pac. 963) ; Williams v. Altnow, 51 Or. 275, 302 (95 Pac. 200: 97 Pac. 539). Measured by this rule, plaintiffs are, as first appropriators, limited to the capacity of the ditch, which at the inception of defendants’ rights did not exceed 400 inches, and to the use of water sufficient only for the proper irrigation of a quantity of lands, not exceeding the acreage between the ditch and the stream from which diverted.
8. Nearly all the witnesses place the quantity required for the proper irrigation of lands in that vicinity at one
9. Nowhere is it disclosed that any experiments were made to determine the quantity of water required, and the evidence is very unsatisfactory as to the knowledge of the witnesses, testifying upon the subject, as to what constitutes an inch of water. One witness gives it as his opinion that it requires as high as 17 inches per acre for the proper irrigation of some lands, stating: That where only a few acres, anywhere from 1 to 50, are irrigated, the demands for the proper reclamation of the land would be as high as 17 inches per acre; but that the duty of water increases in proportion to the head used; that where there are 50 acres and upwards the amount required per acre decreases proportionately; and that by the use of 50 inches or more in one head less than one inch per acre would be sufficient. That the quantity required depends largely on the head of water available is doubtless correct; but, in the case under consideration, should each of the plaintiffs receive his share, and all use the water at one time, under the allowance here made, the proportion of each would satisfactorily irrigate all of the lands owned by them. It is obvious, however, that a flow of 17 inches of water per
10. One inch of water, under six-inch pressure, miner’s measurement, is one fortieth of a second foot, and furnishes a flow of 675 gallons per hour, which in 30 days would furnish lty¿ acre feet, or six acre feet of water for a four months’ irrigation period. A flow of 17 inches therefore would cover an area, equal to one acre, to a depth of 251/2 feet each month or 102 feet in depth (102 acre feet), during an irrigation season of four months. The absurdity of such a quantity, being essential to the proper irrigation of lands, is manifest. Four hundred inches of constant flow would cover an area equal to 440 acres, during a like period, 5% feet in depth. The quantity allowed by the government for an irrigation season in similar localities and altitudes, with like soil, is usually about IV2 acre feet. In Hough v. Porter, 51 Or. 418
11. When not so required, however, it becomes subject to use by others on the stream, in the order of their rights. Gardner v. Wright, 49 Or. 609, 637 (91 Pac. 286) ; Williams v. Altnow, 51 Or. 275, 303 (95 Pac. 200: 97 Pac. 539); Hough v. Porter, 51 Or. 318, 438 (95 Pac. 732: 98 Pac. 1083: 102 Pac. 728).
12. Another question presented for solution is: On what lands may the water be used by the plaintiffs under this appropriation? As stated, plaintiffs rely for their water rights on the diversion made through the Wham-Whited Upper ditch. This being true they are limited in their use, under this appropriation, to the lands under that ditch, which may be irrigated by water diverted either through that canal or other ditches under it; and, while not necessarily confined to the same specific tracts upon which the water has’heretofore been applied, they are restricted to acreage upon which the appropriation was perfected at the time of the inception of the water rights of the answering defendants, which did not exceed 440 acres. The same question was presented in the case of Williams v. Altnow. There, like the case under consideration, the plaintiffs were below the defendants. The court awarded plaintiffs 250 inches of water as a second right, but superior to all defendants except Altnow, and, prior to his right to the use of water from a tributary of Otis Creek, to all water exceeding 150 inches. The point here presented is not specifically discussed in the opinion in that case; but the decree entered upon the mandate, after specifying Altnow’s rights, declares:
13. A decree was entered by the trial court, awarding plaintiffs, as against the nonanswering defendants, 750 inches of water. Ordinarily a judgment or decree by default will not be disturbed; but, as we have heretofore held (Hough v. Porter, 51 Or. 318, 439: 95 Pac. 732: 98 Pac. 1083: 102 Pac. 728), water suits are in many respects sui generis, by reason of which courts are sometimes confronted with the dilemma of either exercising their discretion in matters of practice coming before them, or of making an exception to that well-known maxim, “equity will not suffer a right to be without a remedy.” In this instance, however, it is not necessary to apply any new rules on the subject. Here the 750 inches were awarded plaintiffs, as against the defendants who did not answer, while the ditch, through which the right is asserted, will carry but 564 inches at most; and, further, not more than 400 inches can be applied to a beneficial use under the ditch. As before stated, the measure and limit to the use of water is determined by the quantity applied to a beneficial use. This necessarily limits plaintiffs in their claim against those not answering to 400 inches, placing all the defendants on the same footing, except that we are powerless to enter any decree affirmatively determining the rights of those not answering. The decree, with reference to the nonanswering defendants, will, accordingly, be modified by reducing the quantity awarded plaintiffs, as against them, to 400 inches.
14. Counsel for appellants insist that it was not shown that plaintiffs were injured by any interference on the
15. It is argued by counsel, appearing amicus curwe, that the learned trial court erred in adjudicating the relative rights of defendants as to each other, for the reason the record does not disclose that any issue was made, or attempted to be framed, between them. This point we deem well taken. Such would have been within the discretionary power of the court had all the parties, by its order, been brought in, but declined to appear or plead, and a determination of their relative interests found essential to a determination of the rights of those framing issues. Hough v. Porter, 51 Or. 318, 439, 441 (95 Pac. 732: 98 Pac. 1083: 102 Pac. 728). But the exercise of this discretion is not essential to a determination of the rights between plaintiffs and the answering defendants. The evidence adduced is also inadequate for that purpose.
The decree must therefore be modified by setting aside all that part respecting the relative rights of any of the