*1 Rights Nov. In 155 of Willow Creek. taxes involved herein: General Laws of Oregon, 1925, Chapters 316. 160, or- so demurrer should he overruled.
dered. Demurrer Overruled. did participate JJ.,
Rand Coshow, decision.
Argued at Pendleton, 2, 1924, October to dismiss denied motion modified, May decree July 14, modified 26, rehearing denied and decree mandate August 3, mandate motion to recall issued September August 10, filed motion denied and decree modified 15, recall 24, motion to September mandate as amended issued mandate mandate corrected filed October motion allowed and issued 1925. November OF RIGHTS WATER In re Determination WILLOW CREEK.
WILLOW RIVER WATER USERS ASSOCIA
TION et al. v. WATER ORCHARDS COMPANY et a l. 682; 123.) 487; 763; 237 239 Pac. 236 Pac. Pac. Name, be Sued in Absence Association
Associations —Cannot Individually. Enabling Statute, Members must be Joined but voluntary enabling statute, In absence of association cannot 1. name, persons composing must be its association but it sued be individually. joined Sufficiency Transcript may Appeal be Used to Determine and Error — Appeal. of Notice may ambiguous Transcript sufficiency be used to determine 2. appeal. notice of or defective Appeal Appeal in Name of Association Held and Error —Notice Identify Members not Named. Sufficient association, appeal in name of names Notice of of members 3. pleading exceptions appeared in its initial and their rul- which transcript statutory time, filed within held suffi- ings, embodied unincorporated against association, by or see notes in 1. Suits Rep. See, 711; also, Am. St. 162. 25 R. L. 72. Am. Dec. 7 C. of Willow defect, parties; identify therein, members not named cient transcript. any, being if reference cured Appealing Appeal Association Members of and. Error —Death Two Appeal. Deprive of Benefit Other Members Held association, appealing de- members from decree That two *2 rights, adjudicated termining persons water and land entitled to pending deprive to litigation not other members of died did proceed appeal. in trial of benefit of Appeal Duty Respondent’s Attorney Court’s and of to Call Error — Appellant to Death of Be- Attention Members of Association Appealed Entry fore of Decree from. duty attorney, making support 5. It was of affidavit in motion of appeal appellant dismiss because of death two to of members of association, call court’s to attention to such fact decree before .entered, knowledge if then, he had of it so that substitution could be made. Appeal Adjudication Error —All and Parties Interested in of In- Rights Necessary Appeal. choate Water to Parties adjudicate Proceeding rights to inchoate 6. water in river and in rem, is nature of tributaries w in and all adjudication necessary parties in appeal terested are to from decree. Supreme Deprived Appeal Court and not of Jurisdiction on Error — Appeal by Transfer of Association’s Several Members’ Interests Pending Subject Litigation. in Matter several members of association, Y. That appealing decree rights adjudicating inchoate water in river tributaries, and its pending litigation interest transferred their require does not sub- Supreme deprive appellate nor Court of jurisdiction. stitution Appellant Sign Appeal Undertaking. and Need not Error — sign Appellant undertaking need not appeal. 8. on -Undertaking Appeal Sufficient, Objection and in Absence of Error — Surety. to being objection surety, made to undertaking 9. No appeal on is sufficient. Appellant Supply Appeal Necessary Papers and must to Error — Give Supreme Court Jurisdiction. Supreme Court has limited As appellant 10. jurisdiction, must necessary appeal papers to without supply aid of court to authorize questions (§ 548, involved L.), of and decision appeal notice of in complete itself. must be Appeal Appeal Error —Notice of Sufficient, Though Held not Appellant Naming of Members Association. appeal, addressed to association 11. Notice and served thereon attorneys record, by serving whom all members of associa- sufficient, though naming held not appeared, members, tion where transcript. in appeared names their 8. See 2 R. C. L. Eights op
Nov. 1925.] Water Appeals Dismiss Appeal Occasion to not Seek Error —Courts will Merely Grounds. on Technical appeals to dismiss poliey courts to seek occasion grounds. merely technical on Appeal of Names for Omission Appeal Error —Motion to Dismiss Appeal Held too from Notice of Association of Members Late. adjudicating water appeal dismiss from decree 13. Motion mem- of names of river and its tributaries for omission rights in late, appeal held too users’ association from notice of water bers of such respondents learned year until over after where not filed L.; 5745, Or. Supreme Court and Section defect, Rule view being members of association being jurisdictional, defects in sever- system, though lands held in water jointly interested alty. THE ON MERITS. . Ap- Land, Entitled and Watercourses —Determination Waters Proper Proceeding purtenant to Deter- Held Rights. Adjudicated Entitled mine Lands question, irrigation had been whether 14. Consideration re- necessary, .what land was completed held determination supple- appurtenant rights proper and entitled claimed persons mentary proceedings determine and lands entitled adjudicated. theretofore enehoate *3 Inception Contracts, in of Under Watercourses —Fraud and Waters Appellants Rights, Claimed Water not Considered. Which inducing Fraud, members of water users’ to enter association 15. contracts, appeal their en- cannot be considered on from decree into persons proceedings to determine and to in lands entitled tered adjudicated, they rights theretofore where do seek dam- water not claiming rescission, but under ages contracts. Adjudicating Rights and Watercourses —Decree Water in Waters Irrigation System Completion Held Conclusive as to Substantial Project. of adjudicating irrigation rights water in system, 16. Decree which “substantially completed,” was held such decree stated conclusive of proceedings supplementary in to question determine lands to which was; appurtenant, though project, in particulars, minor water was according original plans, system completed neglected to and not was disrepair. in and Irrigation Bankruptcy Duty System of Purchasers of at Bank- — System ruptcy to Maintain in Sale Good Condition. duty purchasers irrigation of of company’s property 17. irrigation system bankruptcy in at interest sale, and successors, and their system good in maintain condition. to Transferring Irrigation in System Watercourses —Fraud and Waters Proceeding in to Considered Determine Land Entitled to Adjudicated Rights to Transferor’s Water Predecessor. transferring irrigation system in Fraud irrigation from 18. com- holding successor to proprietary company pany’s organized to take Rights oe Willow Water supplementary in system be considered cannot over maintain and rights theretofore to water land entitled to determine irrigation company. adjudicated to Response Appearing in Appearance Law —Claimants —Constitutional Adjudication Superintendent by of After Water to Notices Process. of Due cannot Assert Lack water in filing traversing allegations claims 19. Parties irrigation system, in petition company’s water for certificate of adjudication superintendent response by after to notices water any process, and of other rights, of relative water waived services Constitution to process under federal cannot assert of due lack completion system lands questions of as to of bar determination (is adjudicated appurtenant. to water which Equity Jurisdiction, Purpose, De- Obtained for One Retained — termine All Issues Involved. Equity, having jurisdiction purpose, will 20. for obtained one determining jurisdiction purpose retain for all issues involved. Water, to Furnish Waters and Watercourses —Holders Contracts Prorating Shortage, for En- Without Provision Case Held Priority titled to Over Other Claimants. contracts, irrigation Holders obligating company 21. of old to in supply quantity provision prorating stated of water without for shortage, water, exceeding quantity case of held entitled adjudicated Court, decree of Circuit other supplying before claimants. Waters Watercourses —Holders Contracts for Water Held Claiming Quantity Adjudicated Precluded from More Than Decree. 22. Holders irrigation contracts with company stated quantities precluded of water held decree adjudicating water quantity of water to which entitled. Company, Taking Waters System, Over Bound Watercourses — to Perform Predecessor’s Contracts to Furnish Water. company, taking 23. irrigation over irrigation subject company, to latter’s supply contracts to holders payment perpetuity on fees, maintenance perform must ob- ligations long thereof so as maintenance paid. fees are Water, Waters Which Watercourses — Contracts Holders Irrigation Entitled, With were Held Measurable at System. Place Diversion Main Canals of Water, which holders of contracts with irrigation company adjudicating were entitled under decree rights, held measur- *4 place of diversion from able at main canals of irrigation system. Am. Dec. 316. 20. Retention See, also, 10 of jurisdiction R. C. L. equity, court of 370. see note in Nov. of Willow Water Eight Water on to Use and Watercourses —Certificates Waters Eight Carrying in or Contracts, No Stock in Land Described Taking Holding Corporation Over Participate Control of to in Directly Irrigation of Land. System, to Owners Should Issue described granting right use water on land 25. Certificates to participate in, right contracts, carrying with to them no stock in subsequently take over holding formed to of, company, in control water, thereby company to furnish irrigation system obligated holding com- land, such not to directly should to owners of issue pany. Eights Transferring to Ir- Water and Watercourses —One Waters rigation Company in Water can- Eeturn for Contract to Furnish Eights. not Claim Former Under Water voluntarily selling transferring rights 26. ir- One and to company in rigation in return for contract to furnish water cer- quantities greater quantity claim tain cannot under former water rights. Eights Waters and Watercourses —Certificate Water of Members Holding Company of Water Users’ Association Held Issuable to Taking Irrigation System. Over 27. Certificate to use water on in land described con- tracts, giving members Water Users’ Association one share of company, holding stock formed to take irrigation over irrigation company every purchased for acre of land latter successors, and its should be holding company issued to for use of contracts, described in such and not to members of association. Superintendent and Watercourses —Water Waters cannot Pass on Objection Demurrer to to Petition for Certificate of Water Eights. superintendent court, Water 28. pass hence cannot question presented by of law objections on demurrer of members petition Water Association Users’ certificate of water organized company rights to take over irrigation system; his appointed capacity being that referee to take testimony, find whereupon facts, report court, them to proceeding becomes suit objections equity, petition, in which protests thereto pleadings. constitute Company, Applying Waters Watercourses — Supplying Land Before Purchasers Ap- Its Land and Water purtenant, cannot Assert Beneficially Latter’s Failure Apply to Which Entitled. irrigation company, Successor of contracting to sell land and appurtenant, cannot claim title to either pur- while possession default, is in and not chaser and hence apply cannot it water, adjudicated decree, to its own land before such supplied quantity purchasers purchased, though they did apply water beneficially which entitled. *5 Rights In Creek. Willow oe Water Taking of Corporation, Contracts Over and Waters Watercourses — Obligated Irrigation Company, Held from of Water Purchasers Covenants. Latter’s to Perform contracts claiming of benefits taking and Corporation, over 30. company, irrigation from rights and water purchasers of to therein, as latter’s covenants obligated perform held to successor^ title organized hold to corporation, proprietary rights; stock of its company by irrigation water, being held system distribute to and in trust. proprietors, but successors, as not and Irrigation from of Water Watercourses —Purchasers Waters And Ap- Agreed Quantity Before to Use Entitled of Held Proprietary Irrigation Company’s Any plication to Land of of in Interest. Successors irrigation rights proprietary of Corporation, succeeding to 31. title organized to hold company, company, issue stock of could not system bona water, than actual to other irrigation and distribute to appurte- project which water was to purchasers under n fide of land company were irrigation from purchasers of water nant, hence and con- in their enough irrigate land described of to use entitled to application therein, quantity stipulated before tracts, exceeding not in company’s proprietary successors Irrigation any to land of of interest. Sys- Complaint Irrigation of Transfer and Waters Watercourses — Irrigation Company’s Successor in Interest not Con- tem from Proceeding Entitled to Water to Determine Land in sidered Adjudicated. Eights irrigation Complaint system transfer to to from successor 32. proprietary rights company company’s to hold irrigation formed to pursuant system water to and distribute contract between to title company issues, irrigation held collateral to and hence not it and rights proceeding in to determine lands to which water considered appurtenant. adjudicated were Proprietary Irrigation Successor of Com- Waters Watercourses — pany Prorate Water not Entitled to With Held Purchasers from Shortage. in Case Latter proprietary irrigation to company Successors 33. held purchasers prorate water with irrigation from entitled not pany com- shortage, provided purchasers’ in contracts; in case of latter successors, such priority over who being entitled could not law- expense. sold at fully apply purchaser’s theretofore Watercourses —Purchasers Waters Quantity Except Held Entitled Purchased in Case Beyond Shortage Means Caused Control of Owner of System. purchasing quantity definite users 34. from ir- company providing under contracts for prorating in rigation case quantity, receive such shortage except held entitled to ease of beyond control of owner of by means shortage distribu- water. tor of Application to Beneficial Use Waters Watercourses — Essential. to claim or will be allowed take water one which 35. No he does beneficial use. apply to a op 1925.1 Nov. Right Water Held to Public Watercourses —State’s
Waters Use Proceeding Entitled to Determine Land Involved Water. public state is involved No water of supply insufficient to use of water to determine lands entitled sought applied. all to be land to which *6 Irrigation Holding to Waters Title and Watercourses — Capital System Required Outstanding Stock to Held Reduce Right. Water Land Awarded to One Share for Each Acre of hold capital to Outstanding corporation, formed 37. stock of to agreeing irrigation system, and title to and distribute water of irrigation purchased issue one each land share for acre of company, land must be for each acre reduced to one share system. in awarded water such ON PETITION POE REHEARING. by Pleadings
Trial —All Matters Within Tendered Involved Issues Should be Determined. All pleadings 38. matters involved within issues tendered should be determined. Equity Dispose Proceeding, if Entire Matter in One —Should Possible. Equity, having acquired 39. jurisdiction, dispose of should in proceeding, entire matter one possible, if in Section view of 5754, Or. L. Judgment by Determination, Before Court not Bound —Parties Privy Represented. Unless to Parties Parties 40. not before the court by determination, are not bound they privy parties unless are to who represented; provision being made in 5749-5751, L., Sections Or. rehearing proper for on a showing. Judgment Bound Proceeding Determination in —Parties to De- Rights, Privy termine Water Where to Parties in Such Pro- ceeding. In proceeding 41. to determine water rights, parties who were .by not before privy court were bound determination, they where were parties to in proceeding. sueh Waters and Watercourses —Water User Lawfully cannot Ap- Make purtenant to Own Land Water Sold. Water user lawfully 42. could not appurtenant make its own adjudicated predecessor land it or in interest, sold them to another. Irrigation Waters Could Watercourses — not Contract More Water to Deliver Than Amount Determined Necessary Irrigation. for company 43. could not lawfully contract to deliver to exceed three to water user acre-feet of water, where' sueh amount 21 R. C. L. 602. 38. See 119 Or. —11 op Eights Or. ke necessary irrigation land awarded
was water bo determined to 5717, 2, Or. L. snbd. right, in view of Sections is of Statute Unenforceable. Contracts-—Contract in Violation not enforceable. positive legislation 44. Contract in violation of ON DISBURSEMENTS. TAXATION OF COSTS AND Costs—Costs Follow Event of the Case. case, 45. As a in view of rule, follow the event costs Section L. Regard Equity. Costs—Court in has Discretion to Costs With 46. regard equity. Court has to costs discretion Causing Against Waters and Watercourses —Costs Awarded Parties Litigation. In proceeding rights, to determine water costs and disburse- against ments would be primary awarded who cause were litigation. ON PETITION TO RECALL MANDATE. Appeal Description of Land not Inserted Decree Dis- Error — tributing Rights, Where All Land Entitled to Use Water Represented. .petition Supreme 48.A Court recall description mandate order by incorporating amend decree therein en- all will titled use water be denied where there are tracts entitled to *7 use, such the holders of which are proceeding, accurately and the court cannot describe all the land. statute, 44. Contract in violation of see note 12 R. A. L. (3ST.S.) also, See, 583. 6 R. L.C. 701. J., p. (1) (Anno.). 4 C. 1246 Cyc., p. p. (1) (2) X, 38 (3) X, See 1952. 21 C. 134. 34 C. X, Cyc., (4) (5) p. 34 C. p. 40 p. (6) 1043. 1009. 40 (Anno.). 835 Cyc., X, p. (7) p. X, (8) 834. 13 C. 255. p. 15 (9) C. 35. 15 X, X, Cyc., (10) 36; C. p. p. p. C. 32. 15 40 738. X, X, (1) p. (2) 1369. p. (1926 5 C. 3 C. Anno.). (3) See 1230 X, (4) X, p. (5) X, 1227. 3 C. p. C. 1022. 3 p. 3 3 C. C. (6) 768. X, X, X, p. (7) p. 3 C. 1032. (8) 1014. 3 p. (9) C. 1129. X, X, (10) p. (11) X, 3 C. p. 3 C. 1201. 1223. 3 C. p. 1227. X, X, (13) (12) (15) p. p. (14) Cyc., 4 C. 565. 4 C. 596. 40 p. 816. Cyc., Cyc., (16) p. p. X, 816. 40 (17) 40 816. 7 p. C. 826. Cyc., X, X, (19) p. 1355; 4 p. 40 816. C. 12 (18) p. C. (20) (23) (26) 773. Cyc., X, (21) p. (22) Cyc., 40 p. C. Cyc., 134. 834. 40 p. p. 21 834. Cyc., Cyc., (24) (25) p. p. 40 834. 40 826. 40 826. Cyc., Cyc., p. Cyc., (27) (28) 40 826. p. 834. 40 pp. 40 815, 816. Cyc., Cyc., (30) pp. p. 826, (1926 834. 40 835 (29) Anno.). 40 (31) Cyc., Cyc., Cyc., (32) p. (33) p. 40 816. 40 834. 40 40 (34) 834. p. Cyc., Cyc., Cyc., (35) p. 40 p. p. (36) 834. 826 715. p. 40 (37) Cyc., Anno.). Nov. In re Water oe Willow Judge. From Malheur: Dalton Biggs, In Banc. Locey May, P.
In month of T. J. C. proceedings adjudicating the -instituted for Smith rights tributaries. and its Willow Creek tributary in Mal- River is a of Malheur Willow Creek Oregon. County, River time heur the Willow At engaged in the Land and impounding system irrigation of an construction distributing the waters of Willow and its Creek irrigate subject order the lands tributaries irrigation by gravitation company therefrom. That Board Control its statement submitted appeared proof from which it that certain claim, through appro- had become vested priation and use, while others were at that time in- choate. day September,
On ninth 1912, the State findings Board of Control made of fact and order Among determination said matter. other provided things, this order the Willow River Irrigation Company Land and should be allowed until day January, the first within which to com- irrigation plete apply its said the im- pounded waters to beneficial use. findings To the made in due excep- Board, thus certain course, resulting were taken in a tions decree of the Circuit County, for Malheur ap- Court which decree peals approved were taken this court. This court findings of Water Board in the Circuit Court *8 Irrigation granting unto the said until January complete 1, 1918, within which project the perfect rights: and the inchoate water In re Willow Willow of 475). Pac. On
Creek,
505,
After the Willow Land and Eiver pur- forty-four bankrupt pany became about of Willow Creek. chasers from said Willow Land Biver together associated themselves volun- as a tary protection, adopting association for their mutual the name of Water Users Association Willow Creek or Biver Water Users Association. pro- in a number Thereafter, instances different *10 ceedings growing bankruptcy, out of the notices were given signed and Willow Biver Water Associ- Users by A. A. ation, Secretary. and A. Beed, President, Eaton, W. original proceedings, particularly
In the purpose presenting instituted for those claims submitting proof determining and for under the land project appurte- said to which water would become nant and the members Biver vested, of Willow parties. Water Users Association were not any members of that association did no- receive participate proceedings adjudicating tice of, in, the, water of said Willow Creek. supplementary proceedings, In the instituted, aforesaid in determination all the persons rights una and land entitled vested water irrigation system, der said notices were sent members of the Willow Biver Water Associ- Users appeared by ation. These water users their attor- neys, paper Plallock & filed Nichols, Donald, a styled: Statement and Proof of Claim of “Protest, the Members of Biver Water Users Associ- per- paper by forty-four ation.” This is subscribed who members of and men- sons, association, said tions in the claim each detail member of said by describing owned claimed the land association, system. entitled the use water said him, bankrupt During of this tortious course proceedings, association of water or some users, Nov. oe Willow Creek. gave the members thereof, notice detail of their including protest protest
interests, sale, a a bankruptcy, the referee in and a notice H. to Hon. J. president sign- Lewis, then of the Board Control, ing all of them Willow River Associ- Water Users sometimes A. ation, President, Reed, A. Secretary, W. A. A. W. Eaton, at other times Secretary. Eaton, day
On the tenth some members March, 1913, prospective the association directed notice to the purchase property bidders for the of Willow Irrigation Company River Land and a sale be at bankruptcy held date on that the trustees in at Oregon, signed by thirty-eight Yale, which notice was using members without of the association. name thirty-eight persons These are referred to, however, as members of said association in the formal claim presented proceeding by forty-four per- in this composing sons named as the Willow River Water *11 Association. Users
It is further stated in the claim of the Users upon the Association, that claimants served the said signed Orchards Water a communication by twenty-three signed is which individuals without designating themselves as Willow River Water claim the Association. The of members the Users of prayer Association concludes with Users a as follows: “That said Board said order and di- provide * * lands of
rect that the claimants herein described be first served with an amount of sufficient to * * beneficially irrigate the same.”
The claim of the Water Users includ- Association, ing pages printed exhibits, consists of 156 of Rights op Willow Creek.
matter. Biver Association The Willow Water Users was of the Circuit Court not satisfied with the decree appeal gave was which court, notice of duly upon pro- parties served of to the all the other appel- ceeding. appeal The notice of described Association, lants Users as Biver Waters “Willow respond- including of thereof.” all the members Company, Farms Com- ents, Orchards Water Moline pany, Magenheimer, cause time this and Gr.J. at hearing came on for a motion on the filed merits, appeal dismiss of the Willow Biver Water Users specifying grounds said motion their Association, as follows: specify appeal set nor “That does notice not specified required by statute,
forth the matters appeal particularly not in that notice of does said the names and does contain sufficiently appealed from; describe decree appears transcript is an said association unincorporated individuals, and association of thereof are names those who are members appeal fact stated in the notice of a number of the and as matter alleged association members said notice of at the said dead, were dead time appeal was served and and others had trans- filed, prior property all their interest in herein ferred appeal.” giving such notice supported by motion affidavit H. of M. respondents. attorneys A for said one Cake, presented Bridwell Gr.H. counter-affidavit appellant. said behalf twenty-eighth day of
Thereafter, wit, on the respondents February, filed motions the same Emory separate appeals Cole, dismiss *12 Mary Balph Harvey, Willis, M. Eaton, B. S. of W. Tschirgi, of estate A. J. Coleman Coleman, that— motion, for said assigning a reason as Nov. Eights In of Willow Creek. acquire jurisdiction “The court did not of at-
tempted appeal parties of the above named * # many reason that of the adverse have appeal.” been named in or of served notice The last two mentioned motions to dismiss are upon doubtless based were fact the notices individually not directed of members the Wil- low River Users Association. of both Service duly appeal of last mentioned notices of were attorneys made on of for all mem- record of bers of said Association. notices Water Users Those appeal appeal of directed follows: In Emory Cole, as, “Willow River Associa- Water Users by attorneys.” tion & Nichols In the Hallock, appeal of S. M. as, Willis others “Willow Water Users Association and all of the thereof, members private corporate, both and to Hallock Nichols, attorneys.” their Donald, given appeal notice the Water Users attorneys Association was served mail on the respondents moving record for the dismiss. deposit postoffice day in the was made on the thirtieth September, 1923. In due course of mail it should attorneys have been received said not later than day transcript 1923. The October, second day court on October, filed the tenth presented, The motion dismiss was filed twenty-eighth day until served October, argument when the came on for oral cause at Pendle- ton. adopt following statement
We the brief appellant, River Water Users Association: paragraph protest
“The second of this and state- ment reads: ‘‘ ‘ during all the times and That dates hereinafter named mentioned individuals above and each of *13 Rights In Water of Willow voluntary asso- now members them were and are ciation a protection existing for the and formed to the water of Willow interests of its members and certain in and to a tributaries, and its and Creek & Land known as the Willow River County, Oreg’on, Company project Malheur said being River Users association known as Willow Water “The Asso- Association hereinafter referred to as and ’ ciation.” respondent, day October, 18th “On the Company, Board with the Orchards Water filed Water proof protest, demurrer and a to this statement designated, being ‘Demurrer claim, same Company River of Willow Orchards Water to Protest date Association.’ On the same said Water Users respondent reply Board its de- filed with the Water Company ‘Reply of Orchards Water nominated, protest River the Water answer of Willow and statement, filed There were Users Association.’ likewise replies prepared Board that date the Water on Company, by Magenheimer Moline Farms G-.J. and being designated respectively, ‘Reply of the same Mag’enheimer proof protest, statement and .of G. J. ‘Reply Asociation,’ Water Users claim Willow of Company protest, Farms statements and Moline proofs Asso- claim of Willow River Water Users of ’ ciation. ‘ ‘ got having been thus matter at issue the State findings Board made its and order of de- Water exceptions to which were termination filed all as will more record, numerous fully appear appeal. from the abstract in this by appellant exceptions were ‘Ex- filed denominated ceptions River of Willow Water Users Association to Findings Supplemental and Order of Determina- paragraph Board.’ The first of the State tion exceptions again contains the names of the of these constituting forty-four individuals River Association. Users “Paragraph three of decree made and entered County for Malheur Court the Circuit in this mat- ter recite's:
Nov. In re Water of Willow Creek. “ ‘That the Willow River Water Users Association, comprising forty-four some individuals project under users said of Orchards Water appeared proceedings protest has in these filed proof objecting statement and of claim proof the filed said Orchards Water completion asserting of said inchoate their claim to the to use under the irrigation system company.’ *14 of said stipulations papers “Numerous briefs, and other by proceeding were filed the various to this both before the State Water Board, Circuit Supreme appellant Courts, all of which re- ferred to as Willow River Water Users Association. years More than four have been dif- consumed in the steps litigation, ferent of this a vast amount of work performed, has been transcript a voluminous testi- mony prepared, appel- has been briefs on behalf of cross-appellants respondents lants, filed have been with this argued court and the case has been on its merits.” Motion to Dismiss Denied. Decree Modi-
fied. appellant For Willow River Water Users Associa- tion there was a brief over the name of Messrs. & Hallock argument Nichols, with an oral Donald, Mr. H. James Nichols. cross-appellants
For B. ah, W. Eaton et there was a argument Gallagher. brief and oral P.Mr. J. cross-appellant Emory For Cole there was a brief argument by and oral M. Mr. G. Crandall. respondent
For Orchards Water there Lytle, a over the was brief names of Messrs. Davis & Liljeqvist. & A. Messrs. Cake Cake and Mr. L. Eights In of Willow Creek. respondents Company and
For Moline Farms G. J. Magenheimer name brief over the there was a George E. Mr. Davis. appears the statement J . 1. As
COSHOW, Association, it is a of the claim of the Users voluntary protection organized association for the legal entity It is but such. without a members, corporation. not a voluntary enabling statute, “In the absence of an name.
association cannot It sued its association be composing legal persons existence, has no and the individually.” joined v. Lower it must be Kimball 877). (135 Pac. Fire Columbia 67 Or. Assn., pleading Asso 3. The initial Users the Water paper ciation in this denominated: Mem Proof “Protest, Statement and of Claim of bers Willow Eiver Water Users Association.” In appear. of all members the names statement appear legal entity, The association does not as a but thereof are all named and their the members separately claims *15 The Association stated. Water Users findings being Board, satisfied with the of the Water appeal appealed the In to Circuit Court. this the again the all the members association are names of of exceptions rulings. in their to Thereafter, out the set steps suit, the taken in this the mem of various all' as the the association are referred to Willow bers of Users Association a matter of con Eiver Water as which That certain can made is be certain. venience. referring transcript, By the names of the mem the readily are ascertainable. the association bers of any resulting possibly confusion be cannot There Eiver Users Asso name Willow Water of the the use litigation parties to this All the familiar ciation. composing the association. names of those the 173 of Willow 1925.1 In Nov. appeal mentioned is tlie notice No defect in of respondents moving pointed by dismiss, the ont excepting members of of that names the the ques- No notice. ont the association are not all set validity of the service the tion raised about the is appeal appeal. contains The notice notice of ad- and is the title the cause, the court, name of litigation excepting parties to all dressed appellants, River the members of frequently It Users Association. has been by transcript may that this court be used to held sufficiency appeal of the where determine notice ambiguous 49 or defective: Lee v. 105 Gram, it is Or. 1001). (196 Pac. 209 Pac. 27 L. 373, 474, A. R. appeal given notice was A all of the adverse legally parties transcript A and was served. time in this court within the filed limited statute. jurisdiction therefore, has cause. court, may It is void. be doubted it The notice is But if it conceded defective. be be defective, even transcript. is reference to the cured defect No possibly litigant been could have misled the notice, any way party preju- the record can in be and no objection thereby. notice, because diced of the names of individuals com- omission of the posing River Water Association, Users the Willow identify It contains sufficient to well taken. is not litigation: appellants in the In re Waters 667 Pac. River, Chewaucan 421). assigned dismissing reason Another 4-6. Association appeal Users is several appellant association are dead. members appears Mr. from the affidavit of Bridwell, which *16 respect, that that in members of controverted not Association distributed Users over the Water a. In re Water of Willow Creek. large part United States. The affidavit Mr. support Cake, of the motion to dismiss, recites that King, Prank Buchanan and Charles J. members of prior said Water Users Association, died some time appealed to the date the decree from was entered in the Circuit No Court. mention that fact was made may attorneys in the Circuit Court. It that be knowledge for the Water Users Association had no nothing of that event. There is in the record that knowledge parties, indicates that death of these both whom in-the lived state of was Ohio, known attorneys appellant to the for the Asso- Water Users ciation. The fact that two members of the association litigation during pendency died would deprive the other members of the association from deprive in the trial. That fact does not jurisdiction this court of the of the cause. express opinion disposition may
We no as to what made of interest be of the heirs law' at or benefi- ciaries of estate said deceasd members. It does appear from the affidavit of Mr. which Cake, is regard, in that controverted M. A. Buchanan was sole heir at law and widow of the said Prank conveyed Buchanan and had all of her interest in the controversy. property involved in this To whom she conveyed property is not mentioned. The same exists as of facts to the heirs state at law of the said appears King. A. that the Charles interest of both said decedents now owned some other conveyance party prior that the was made rendering entering the decree the Circuit cause. Court
The affidavit Mr. Cake does not set out the time up he became familiar facts when set in his duty but it his have called affidavit, the atten- parties, the Circuit Court the death of tion of *17 175 Willow Creek. Water oe In re Nov. 1925.] appealed he entered, from was if the decree before knowledge could that substitution then, of it so had any of the these two death event, made. In have been forty-two deprive parties mem- other not the would appeal: Young’s right of the of the association of bers (116 1060, 116 Pac. Pac. 95, 59 360 348, Or. Estate, 1310). Ann. Cas. 1913B, proceeding litigation in nature of a is the
This adjudica subject the matter the suit is The of rem. River of Willow tion of the inchoate water adjudi parties All interested its tributaries. necessary parties cating inchoate (144 appeal: Pac. 592 Creek, 74 Or. In Willow re 475); River, Chewaucan Pac. In Waters 505, 146 of 421). (171 659 Pac. 175 Pac. 89 Or. appeared parties who All of duly notices of the instant case with served in were appeal. appeal
Believing that the notices of as we do, substantially given by Association Users every requirement complies the statute appeals taking it hold sufficient and we court, pending litigation death the two deprive association other members not does appeal. the benefit of the objection other was that several A made further interest transferred their of the association members litigation. pending subject This, matter in the require much less substitution, even a does itself, Medynski jurisdiction: deprive v. this court it does 871). (59 397 Pac. 36 Or. Theiss, appeal undertaking is on in this case 8,9. Association, Users signed River Water A. Cox, Attest: B. Sec Woodard, President; L. Charles sign appellant necessary retary. for the It is Towey, appeal: undertaking 70 v. on O’Connor objection 625). made to is No Or. Eights In be Water of Willow Creek. surety undertaking, consequently, on the undertaking is sufficient. appeal
10-12. The motion dismiss the B. W. expressed Eaton al., et while not in the same lan guage,, upon defect, based the same wit: That the names Asso of the members of the Users appeal. ciation are not named notice respondents motion to dismiss is made the same appeal who moved Users to dismiss the Water *18 complaining Association. That is nor association attacking any way by appeal given the notice of B. W. Eaton and others. The notice names Water language in which it
Users Association in the same designated in We is the decree of the Circuit Court. transcript only names have to find the to look to the the members of association. Service of exactly appeal have of as it would made of notice of all no in case the names made, been doubt, in the been embodied members of said association had appeal, members of that of because all of the notice attorneys, appeared by firm the same association by serving upon association and service was made aptly attorneys of as was so true, record. is September, by 1922, Justice said Chief Bijenett, (196 L. R. Pac. 27 A. 373, 105 53 Gram, 49, v. Or. Lee 1001), that— juris- Supreme of limited Court is a court “As the peril app'eal party desiring must at his
diction, a required necessary appeal papers his frame the language by in the otherwise,’ for ‘not statute; acquire authority to decide can this court 548, Section ap- appeal. party questions in an involved court pealing must himself without aid necessary appeal. Being supply his the documents jurisdiction he we so, until does cannot reach without help aiding him hand and into court.” out an op Eights 177 Nov. 1925.] In re Water appeal necessary must be notice that the It is repeat, which certain complete that is in itself. We equity, Applying maxim of can made certain. be duly appeal opinion that the notice we are is sufficient. given Eaton et al., B.W. and served in Oxman Mr. Chief Justice was said As McBride Pac. 236 County, v. Baker policy seek 1040): of the courts not the “It is merely appeals upon technical occasion to dismiss grounds.” language Mr. Chief Justice This McBride is appeal applicable
particularly to the notices moved assigned litigation. against reason in this appeal very dismissing technical. No one could language of the notices even been misled have defective. Buie the notices be if we concede prescribes: this court, days filed ten must within after “All motions be attorney knowledge alleged party failure of an obtains his or attorney comply party' or his of the adverse requirements the statute with the rules with the except defects, unless so filed all ob this court *19 jurisdiction of the jections court, will be taken the moving party.” 100 752; Or. the Iltz v. waived as 550). Krieger, 206 Pac. 409, 104 Or. the three notices to dismiss first of was not filed respondents year after the more than a obtained until alleged appeal. knowledge in the notice of the defect opinion the the defects in notices were not In our the motion to dismiss jursidictional and, therefore, (cid:127)by is fortified conclusion the late. Our too came provision statute, Section Or. express 5745, L., of our following language: the contains which provided hearing prior any in to the for time “At Oregon inas this act Laws, amended, section 119 Or. —12 op Willow jointly may any party ex- or interested file such, findings ceptions writing order part parts any or which thereof, or determination, degree exceptions a reasonable shall state with exceptions certainty specify grounds and shall the parts particular paragraphs of such the excepted
findings and order to.” clearly provisions are There other in the Water Code indicating legislature provide the intention of the pro- joint for those whose interests are to unite in the ceedings rights. instituted to determine relative water appellants jointly can he no that the There doubt are though system in the water their interested lands are severalty. regarding we said held in What have the appeal B. al., dismiss of W. Eaton motion to the et equal applies motion force to the to dismiss appeal Emory Cole. All the motions to dismiss appeal are denied.
On Merits. supplemental proceed proceeding is 14. This Locey ings in 1909. instituted Smith Creek and its tributaries waters of Willow ad proceeding. judicated The successor in inter system irrigation prop and other in and to est Irrigation Company, become which had erties of bankrupt meantime, transferred the Company, respondent Septem Orchards Company 1919. The Orchards Water ber Irrigation organized River Land and company. By holding Company terms of companies, the those two vendees between contracts Irrigation were to receive one share capital the Orchards Water stock of purchased every of land acre companies those Company. between The contract years provided five after the date thereof, further *20 op In be Water Nov. Company Irrigation transfer should system. irrigation Company the
Orchards Water contract was to that The intention of the Company, Irrigation of the invest the vendees purchase and water the land virtue of their ownership Company, actual from the capital Company stock. of all of the Orchards Water irrigation system the After the transfer petition and provi- filed its Orchards Water it complied asserting with the that it had claim proceeding and de- in this sions of the former decree provided by statute. manded a water certificate as description petition a This contained which the water had which had been reclaimed and to superin- appurtenant. Thereupon, become persons claiming gave interest an tendent through notice all system, appear certain at a date present Pursuant said notice, their claims. forty-four appearing herein under individuals Users Association the Willow River Water name of allega- traversing number claims filed their petitions the Orchards Water in the tions allegations challenging particularly completed and the correctness had been description of the land to which water had become appurtenant. Users Association The Water al- also misrepresentations by leged means of which fraud they enter into the induced to contracts had been respective they claimed their which under rights. Irrigation Company River Land and
The Willow The first form prepared forms of contracts. two had record as the “old form” in the referred to used and per provided acre. for 4.2 acre-feet contract origi- cross-appellants form contracts. hold old adjudication in this deter- decree of nal *21 op In Water Willow Creek. re duty three the of water Willow Biver to be mined of per acre. The Circuit Court confined the acre-feet appeal cross-appellants of in this to that amount former of this with the decree water accordance complain provi- cross-appellants court. The of prorating with other water sions in decree for project. The form contract does users under the old provide prorating. contention of the The cross-appellants they binding is that have a contract Irrigation Company its successors where- and by they during irrigation were to receive season 4,2 equal perpetually quantity a of water acre-feet regardless they are to that that entitled amount purchased or not those who later and hold of whether form contract water. the new received respondents Company, Orchards Moline The Magenheimer Company and Gf.J. contend that Farms is mere as this continuation the former inasmuch supplementary appel- is thereto, proceeding. no to be heard lants have only is to the effect that the contention matter Their is the amount of land that has been determined to be appurtenant; which is the water reclaimed upon petition determined that should be legal the holder of the title Orchards Water appellants right. But the have water traversed the Orchards Water the claim completed, system irrigation has been and also ear- description nestly that the the land to which contend appurtenant, become as set out has in the water Company, petition Orchards Water is of the not cor- question whether as to not the The rect. directly completed in issue and is must be been has description The which the determined. appurtenant be should also has become accurate adjudication original did not at- definite. Eights Nov. Willow Creek.
tempt describe the land intended to be specifically irrigated under this in that project. description decree general is and referred to all of the land capable irrigation gravitation providing supply ap- sufficient and the water has been it. The plied to Com- original plan 50,000 and with pany irrigate acres, about intention Orchards Water Com- view, organized the with a stock of capital 50,000 par shares pany share. per appears value now $1 *22 reclaimed. record that less than acres have been 5,000 necessary, if appears, proper, be not therefore, to entertain the ap- issues raised the claims of the and the and determine in cross-appellants this pellant what en- land has been reclaimed and is proceeding ap- titled have water made rights perpetually thereto. purtenant
15. The claim of of part appellants, fraud on the be sustained. Neither the Water however, cannot nor the considered the evidence Board Circuit Court If to sustain the of fraud. any adducted allegation it practiced, appellants, alleged by fraud in the contracts. con inception These occurred prede made the water users and their tracts were Willow Elver in-interest with the Land cessors They do seek to Company. rescind but in this suit are. claiming contracts under their not ask for They do damages. contracts. those inception, therefore, fraud is elimi question the case. nated appellants cross-appellants All of
16,17. having determined interested the de vitally are the water to which is to the land become scription shall right be when the issued. appurtenant appear present notified their all were They is a party original of them pro- None claims. Eights of Willow Creek. ceeding. This matter is not now this court before purpose determining for the relative the waters of the stream. The claims all appellants cross-appellants upon are based right. right same water This is same water respondent petitioned company which the has for a certificate. The contention between the separable proceeding largely con- is in the nature of ordinarily troversies considered in would be in- controversies nature, but the respond- grown volved have all out the claim of the predecessor ent Orchards completed irrigation system, interest had has system and reclaimed certain land under that had applied the water beneficial tracts of to a use to petition specifically in their These described. allegations directly challenged. A certificate accurately describing issued cannot be appurtenant the water is to land to which determining- be without framed. the issues thus expression: original contains this “The decree substantially completed”: In re 475). Pac. A 505, 146 74 Or. Greek, testimony tending *23 great taken was to show that deal of completed. portion system large A had been the argument upon devoted extensive briefs is to the system question or not the com as to whether was the the Orchards pleted when transferred to Water Com opinion pany. the that the former decree are of We question. proceeding that conclusive of is this in “substantially” there would indicate of the word use complete every system in was not de while the that general complete plan yet far it so was was tail, system complete. of the was substance involved. attention. Only remained to receive It details minor bankrupt proceeding against during appears the that op Nov. Willow Creek. original Irrigation Company the transfers, and the system repair. the has out of become more less duty purchasers bankruptcy was of the the sale, at system good and their to maintain in successors, Company original Irrigation condition. The intended planned and to which 50,000 sell about acres of land, irrigated clearly system. should appears from this This be capital having of the from made the stock Comparatively Water $50,000. Orchards early progress project promoters in the of the impound inability realized their irrigate to sufficient water to quantity plans such a of land and were changed changes from time time. A to record these plans original and adjudication was when before court made we now bound decree rendered this court and the Circuit Court upon the mandate from this court respectively. adjudication provided The decree of irrigation for the of so much of 15,000acres as should irrigated project be reclaimed under the on or January 1918. before notwithstanding conclude, therefore, We the evi particulars project in minor
dence indicates that the completed original in accordance with was not plans, system neglected had been disrepair, permitted fall in that we must affirm the approving Court’s decree effect Circuit the transfer irrigation system from the successor of the Irrigation Company River Land and Company. believe We Orchards it proceeding attempt litigate permissible in allegations making fraud transfer of Farms Moline Orchards Company. This should limited be determining the land entitled to the water Irrigation Company adjudicated to the heretofore. *24 In oe Willow respondents 19, 20. It this is claimed tbe proceeding should determination of the be limited ato rights relative its to the waters of Willow Creek and process provisions tributaries; that under due of the legislature of the federal Constitution, the is without authority provide separate for the settlement compul proceeding only controversies in a sory where the given publication notice is that of and service rights mail. But the relative the waters of adjudicated Willow Creek tributaries were proceeding. questions the former decree in this for determination now are whether or not the completed description proper has been and the land which has been reclaimed and to which the water adjudicated to Willow Biver Land and Company appurtenant. has become Notices were sent appellants by Superintendent. to all of the the Water response appellants In to' those notices the all filed allegations peti their claims and traversed the in the - respondents tion Orchards Water right. for a certificate of water believe, a We do not respondents that the therefore, Orchards Water Com Mágenheimer pany, Moline Farms and G. J. position question process. are in a to raise the of due jurisdiction There can no doubt that be the court has subject appeared matter. The have all thereby any process the service of waived other upon They them. have submitted themselves to jurisdiction upon by of the court. The cases relied involving respondents adjudication cases were supply. source the relative of water adjudication already In has taken question presented place. now is a different Equity having jurisdiction question. obtained for jurisdiction purpose pur will retain one determining pose all the issues involved. *25 Eights 185 In re Water Nov. 1925.] Willow Creek. of necessary or us determine whether not not upon appellants been would have concluded protests by the issues framed different claims, they appeared if not in answer to said had contentions jurisdiction to the and submitted themselves notices They joined appeared. They have court. have rightfully we refuse to entertain issue and cannot joined. jurisdiction determine the issues Rights in case of In re in McFarlane Creek 250), Okanogan (218 County, 126 364 Pac. 248, Wash. respondents, of seems authorize the trial cited adjudication water in of matters even incidental rights properly raised. where those matters are opinion this sentence: of the court concludes with jurisdiction that the trial court had
“We conclude rights in Mills and wife determine the easement of carrying the ditch their water over Williams’ respective well as the land, as parties.” Milling & Mercantile Co.
The case North Powder Express 28 Co., Fruit Or. 18, v. The Pacific language: 896), contains juris- may “Indeed, it well whether the be doubted goes Board the extent diction authorizing owner- it controversies to settle conceding (Authorities cited). ship But, of ditches: jurisdiction, it such so decreed has it has in not being audit is unneces- considered, instance now sary to follow that branch of the discussion.” party case In this it was contended one adjudication water of North Powder River had question party involved and the other determined precluded thereby. All the other cited cases purpose by respondents were cases instituted for the adjudicating rights of the relative source supply. That has been done this case. of water oe parties claiming through ap- All of the propriation. are the same attempt question
There no adjudicating right. former decree the water None sought any way to this suit has modify that decree. The issues framed in the instant case here for the first time. case has been No respondents directly appellants cited either point. clearly upon by appellants The cases relied by appellants rule as contended for but cases were ap- involving adjudication rights by of water propriation. litigated pro- The matter was in a adjudicating ceeding purpose instituted for the *26 rights from the water relative water same source of provides supply. expressly Our Water Code adjudication matter of reaches the when the water it shall a suit in Circuit Court be determined as equity. completion system The matters of the particular the land to which the is to be- appurtenant necessarily are involved come and should In 88 399- determined: Umatilla Or. 376, be River, re 97). Pac. 172 Appellants holding B. Eaton and W. others all prior contracts are in time to old form all of the proceeding. claimants the water in this other provide prorating contracts do not in Their case shortage. obligation The of the Willow River Irrigation Company supply quantity Land and the mentioned in the contract is absolute. of water limitations or restrictions. Their contains no claim, change adjudicating would decree satisfied, if the Irrigation the Willow River Land water of controversy Company. is between the cross- appellants appellants B. Bates and others, W. respondents, involving the water heretofore Irrigation Company. adjudicated The Water recognizes principle appropriations in water Code of Willow Creek. Nov. In superior right. priority being hold, We in.time cross-appellants, Emory B.W. that the therefore, Cole, pur- others are entitled to have the water and by Eaton, sup- them and as their contract chased defined plied are the other users before always provided, so that the water entitled to water, supplied during the not exceed three acre-feet does irrigating season. part
22. Another of the cross- contention on quan appellants Eaton others is as to the W. B. Upon tity they of water to which are entitled. they precluded by former decree in contention That however, this court. does define decree, place where the water is to be measured. cross-appellants, contracts
23. The old form provides delivery B. Eaton and for the others, W. perpetuity upon payment of a main the water purchasers per long fee acre. So tenance $1 right from of that water Eiver Land and they Company paid Irrigation said maintenance fee have the delivered them. are entitled Company, respondents, one of the Orchards irrigation system constructed received has Company, subject formerly owned said cross-appellants, contracts with the B. these W. *27 respect In that the and others. Orchards Eaton interest is the successor in of the Water Irrigation Company Eiver Land and and must Willow obligations Irrigation Company perform the said of form old contracts. in said contained prescribes the decree of Circuit Court that 24. The place at the of shall be measured diversion water said irrigation system. canals the said of main from the portion of the decree the Circuit of Court That affirmed. be Water oe Willow Creek. carry The form with them
25. old contracts do Company. any the Orchards Water stock the They permitted by the of the said old are not terms manage participate form in the control or contracts to Company. The ment the Orchards Water right granting nse the the therefore, certificates, form con described in old the the land the water on directly the tracts should issue owners the Orchards Water therein described and Company. Emory cross-appellant, the holder
26. Cole, as the same contracts, form sustains old one adjudicated right to the Willow relation to the water as the cross- Land River appellant, far so Eaton, others, B. W. affected. contract is land described in his old form right on the land described His to the use of water the terms of contract is defined the old form voluntarily transferred to He sold and contract. Irrigation Company his water River Land and Irrigation Company accepted from the claim under cannot, therefore, contract. He form old cross-appellants rights. All the are former water his adjudication decree of heretofore concluded upon a mandate from Court, in the Circuit entered quantity claiming greater a court, acre-feet. three than Association, of the Water Users members
appellants sustain a different relation to the herein, Company. They practically that Water Orchards present time. The Orchards company Water at company. holding The members of Company was a equitable Association are owners Users By company. terms of stock which virtue all members of contract, form new claiming Association Users *28 Rights oe Willow Creek. Nov. In re Water purchasers of Creek water Willow use of the rights Land River from Willow land and water Irrigation became its successors, every share stock for acre the owners of one provided purchased. said It contract in capital that amount of stock of the Orchards effect adjusted number should be to the irrigated by the new form said under acres contracts. The users the waters of Willow Creek would con- become owners and would, therefore, manage system. fol- trol and For that reason it right necessarily quantity lows that the water deducting remaining of water therefrom the after cross-appellants rights granted who hold water the old form contracts should be issued Company for the use of the land Orchards Water described the new form contracts. perplexing problems
One the most submitted description appeal is the the land entitled to adjudicated the use of River to the Willow Irrigation Company. Land and is contended on appellants part they that are entitled to the purchased of water for the use of the land amount in their exceed contract, described two acre- actually irrigated or not whether that land was feet, January prior 1918; because Company and its successors refused to deliver to them necessary quantity of water to enable them to irrigate purchased the land reclaim with a water appurtenant they apply thereto were unable to prior January to beneficial use 1918; they purchased good the land and water intending upon pur- to use the water the land faith, they and wherein failed to do that chased was not shortage their own but conduct, because of the due shortage that the of water resulted from water; oe Willow *29 quantities diverting large Irrigation Company of the them that lands; water sold to reclaim its own to none proceedings party to the of the users was a water right adjudicating the Com- the water to any knowledge pany them that none of had and application requiring actual the limitation the prior January to that the 1, 1918; be made to any Irrigation Company at its successors never and any the decree of the water users that time notified right adjudicating Eiver the Willow the water to Irrigation Company required applica- the Land and January prior use of the water to beneficial to tion supply water because of failure to that 1, 1918; Irrigation Company and its successors them the to they irrigate land the were unable to reclaim and all they purchased were and for benefit which the prescribed in their acre-feet, the two entitled to respondents con- the hand, On the other contracts. proceeding purpose was for the sole that tended irrigated describing under land had been the which project the former accordance with decree Board nor neither the Water the court herein; that upon entertained or heard evidence have should petition framed Orchards Water issues protest obligation appel- of the simply should but that an order have issued lants, directing it issue Board the certificate the Water respondent Orchards of water Company actually irrigated sys- the land from January prior that 1, 1918; sole tem issue proceeding description is the in this be determined irrigated, actually that of the former required the Water of this court Board to decree receiving proof upon such certificate issue upon had which been particular land benefi- respondents applied. cially contend in effect Nov. oe Willow Creek. appellants heard; not entitled be complaints ignore the in- the court should all about alleged complete condition of and the improper the water thereunder. The seriously distribution of respondents contend in effect assert question distributing that the fraud in the water, flagrant, no matter how should not be considered nor entertained. determining’ If this awere appropriators
relative between different supply, the same source of the court would not con controversy appropriator sider between an *30 claiming those under him: Humboldt L. & C. Co. v. 612). District 47 Nev. Court, 396 jurisdiction Board did Water not have to determine question pass upon the fraud nor of to the demurrers presented by respondents filed and the to the Water Superintendent. Superintendent The Water is not a respondents presented court. The a demurrer the to objections protests appellant. and of the A demurrer presents question only Superin a of law. The Water jurisdiction tendent, therefore, had no to determine presented. capacity the demurrer His rather appointed purpose taking aof for the referee of the testimony finding reporting and facts the them to the court: In re River, Silvies Fed. 501. When Superintendent report the of the was filed the Court with Circuit the then became a petition equity. of suit in the Orchards Water objections Company protests the various pleadings. constituted thereto the By the of the new contract under terms which appellants, members of the Water Users the Associa right interest in the land and claim an water tion, agreement appurtenant an was made for thereto, certain, parcel right land with of a water a sale Eights oe per two acre-feet appurtenant to exceed thereto, not Irrigation its succes- acre. When for the sale contract into a entered sors in interest appurtenant right thereto a water tract land with the owner claim to be not it could thereafter long as contract, as in the tract the land described possession purchaser land and Irrigation By Com- token the in default. same lawfully pany claim to could not its successors appurtenant quantity of water be the owner They contract. had no more in that the land described right con- water thus sold or claim the use they could have claimed the tracted to be sold than or the use of the land described in to the lawful, It was therefore, contract. the same any Company, of its successors in adjudicated apply Irriga- the water interest, the former decree herein land pur- tion belonging until its successors after to it or form contracts, new under the well as the chasers supplied quan- had contracts, been form of old purchased by tity them. It follows, water there- respondents necessarily, ought not to fore, purchasers say that the land and be heard form new contracts did not under benefi- they apply cially which were entitled *31 January when prior 1, 1918, failure so do Irrigation Company by and its suc- caused was purchasers withholding from their the water cessors land. applying own This to their it contention respondents against the in this determined been has (163 84 283 271, Or. Willis, Pac. v. in Smith court speaking through Mr. Chief 810), court, where said: Justice McBride, sufficiently appears original the' “It also plaintiffs used water their
grantor these 193 Nov. Willow Creek. system irrigate irrigation 800 own acres of their they shortage and that a land, occasioned snch agreed quan- were furnish in the water unable tity they right no defendants. This had to do. duty any was their to furnish to incon- defendants at might compliance venience that with their contract they legal occasion to to had themselves, and no shortage by creating use occasion a an additional on lands owned them.” To the same effect is the case v. Twin Caldwell Company, 225 Falls, Salmon River & Land Water (155 17); Fed. 177 260 270; C. C. A. 267 Fed. Fed. (69 382; 356; 272 Fed. 266 85 L. Ed. 45 U. S. 85, Sup. Rep. 22), Supreme Ct. decided U. S. Court, Blakely Lyon October 27, Also, v. Ft. Canal (73 251); Colo. 224 Co., 31 Pac. 249, Smith v. Willis, (163 810); 84 283 271, Or. Pac. Black 126 Baker, v. (219 59); Imperial 604 Pac. Wash. Water v.Co. Hola (116 526); 197 Fed. 5 C. C. A. bird, New La Junta Kreybill, App. (67 & Lamar Co. v. 17 Colo. 26 Pac. 1026); App. La & v. 6 Hess, Junta Colo. Lamar 496 50); (42 Dooding Idaho Co., v. Ltd., Sup. Rep. 265 518 et U. S. L. at., Ed. 44 Ct. . 618). respondents confusing
30. The
are confused and
they
attitude
take toward
each other. The
respondents
counsel
learned
stated,
hearing
Superintendent,
before the Water
simply acting
Orchards
as a
Again
applicant
he
stated,
stakeholder.
“The
Company)
(Orchards
willing
to admit their
liability
these
under all
contracts.” On another occa
appearing
same
counsel
learned
sion the
for all the
represent
respondents,
any
don’t
said: “We
stock
On another occasion the
holders.”
same learned
said: “The Moline Farms
counsel
and the
—
*32
194
In re Water
Willow Creek.
oe
Mag-enheimer
paid-up
pos
It
land is
stock.”
is not
the effect
sible
these two statements
to reconcile
represent any
stockholders and
he did not
paid-up
stock
two of
in this
held
his clients
Company.
ex
in
There are other
the Orchards Water
clearly indicating
pressions
atti
that the
the record
respondents
tude of
is in effect that the Orchards
the
Company
place
Water
the
and stead
stands
Irrigation Company.
only to
extent
This'
true
the
distributing
maintaining
the water.
Irrigation Company
The
never owned
stock
Company
proprietor.
Its
the Orchards Water
as
Company
the Moline Farms
interest,
successors
Magenheimer,
not own
stock of the
did
Company
proprietors. The
Water
Orchards
Company stock was held in
Water
trust
Orchards
Company
Irrigation
in
successors in
Magen
including Moline Farms
terest,
Oregon
The
is an
Orchards
heimer.
express
corporation, organized
pur
for
and sole
irrigation system
holding
pose
title to
persons lawfully
distributing
water to
entitled
organized
profit.
was not
It
It
thereto.
Irrigation Company
appropriator
water.
an
respondents,
Moline
appropriated the water.
Company,
proprietary
to all the
has succeeded
Farms
Company.
Irrigation
took
It
over
purchasers
Irrigation
from the
contracts
claiming
Company,
the benefits of those contracts.
thereby, obligated
perform
covenants
is,
Company in
those contracts:
v.
Childs
(141
83); Imperial
116
77, 81,
Idaho,
26
Neitzel,
4
526);
197
Holabird,
Fed.
C. A.
v.
C.
Co.
Savings
Valley
Bank v.
&
Bitterroot
Trust
Irri
First
The Moline
Fed. 320.
Farms
gation
Com-
Co.,
Rights op
Nov.
In Water
*33
pany appears
from the evidence to have been
absolutely
respondent, Magenheimer.
by the
controlled
system
Until the
transferred to the Orchards
Company, Magenheimer also controlled the
Water
Company.
Orchards
It
the at-
Water
seems to be
representing
respondents
titude of the counsel
Company,
that the interest of
Orchards
Water
Company,
Magenheimer
Moline Farms
iden-
tical.
is not correct. The
This
Orchards Water
Company
is
trustee
the water users. The
Company
Moline Farms
succeeded to the interest of
Irrigation Company
proprietor.
The witness,
in behalf
testified
Oakes,
re-
spondents that the members of the Water Users Asso-
supplied
requested,
been
ciation had
with all the water
up
testimony
only
to two acre-feet. This
is not
disputed by
the water
but is
users,
refuted
clearly
inability
record which
shows the
of the Moline
Company
impound
Farms
and distribute the neces-
sary quantity
beneficially irrigated
of water
have
project
attempt
all
the land under the
to which an
apply
Notwithstanding
was made to
the water.
year
shortage
obtained each
has been
large quantities
operated,
of water were diverted to
irrigate
the‘Irrigation Company
the land and its
lawfully.
This
could
be
successors.
done
31. The
Farms
Moline
had no lawful
stock
to issue
of the Orchards Water
except
purchasers
to actual bona
of land under
fide
project
appur
to which the water
would become
:
v. Twin Falls
tenant Caldwell
Salmon River Land &
225
534;
Fed.
Twin Falls
Co.,
Salmon River
&
242
Land Water Co. v. Caldwell,
Fed.
191
(155
17);
Savings
A.
C. C.
First Trust &
Bank v.
Valley Irrigation
251
Bitterroot
Fed.
Co.,
320, 323;
Boley
(217
v. Twin Falls
37
Co.,
Canal
318
Idaho,
Eights
oe
(163
262);
Pac. Smith v. 810); Rayl Co., 30 rel. v. Twin Falls State ex Robt. etc. 232). follows that the land Idaho, Associa the members of the Water Users owned project entitled use of suffi under the tion River its cient water from Willow tributaries irrigate con land described their several Irrigation Company successors, tracts with per land of of two acre-feet acre. The to the extent Irrigation Company purchasers and its from the quantity use of that is entitled successors any applied to should be before water belonging proprietors in interest as to the successors *34 Company. Irrigation River Land and the Willow of Complaint because the transfer from is made of Company Orchards Water Moline Farms irrigation original system. Company con The of Irrigation Company and the between the tract Company provided for the transfer. Orchards joined properly collateral to the issues issue is This not considered. and is herein, respondents, Company Farms Moline 33. The prorate right Mag’enheimer a to claim the water with Irrigation purchasers from them and the Com provides prorating for pany. The new form contract shortage. agreed It in case of is in behalf the water Irrigation Company respondents that the and its interest, the terms that contract, successors right share same water that their have This contention cannot be have. sustained. vendees Irrigation accept contention would enable that To purchasers Company successors to sell right two acre-feet and at the same water per That contention the water. would withhold time Irrigation and its successors to have themit op 197 Nov. In a water two sold acres land with 15,000 experience appurtenant has acre-feet when thereto supply that the shown water owned them was supply In to 5,000 sufficient to two acre-feet acres. Irrigation other it Com authorize the words, would pany they not own. and its successors to sell what did provision providing prorating The for in the contract a of water was cover embodied contract the. shortage likely times which is to occur at water, beyond reason of the control of circumstances supply Irrigation Company and its The successors. every is variable. It season. varies provision prorating lawful is a reasonable part it so as but cannot be construed contract, company in excess authorize sell water far supply. only of its where short allowable occasionally. age Experience occurs has shown project its suc under 5,000 have not been able furnish water to cessors Any average. be acres land on an sale of water yond quantity was unlawful: v. Twin Caldwell & 255 Co., 584; Falls Salmon River Land Water Fed. Twin Falls Salmon Land & Water River Co. v. Cald 17); (155 242 Fed. 191 C. C. A. well, 177, First Trust Savings Valley Irrigation & Bank v. Bitterroot Co., Boley v. Falls 323; Fed. 37 Co., Twin Canal 262). appellant Ida. *35 prorate themselves in case must with of a water
users shortage, cross-appel after water of the Emory B. Eaton et al. and Cole have been lants, W. project. But under this the water users are furnished preference proprietary to the water suc entitled River in interest of Land and cessors Company. Irrigation users The water should not be shortage prorate required water in case of proprietary Irrigation or its successors op Eights 198 In Water Willow Creek. Irrigation Company, succes interest. lawfully proprietors, sors in interest, as could apply theretofore to the water users sold Imperial expense v.Co. at the latter: Blakely 526); (116 18 A. 197 Fed. C. Holabird, C. 4, 251) (73 Lyon Pac. 249, ; Ft. 31 224 v. Co., Canal Colo. 810); (163 Black 283 Pac. 84 Or. Willis, 271, Smith v. 59); (219 Junta New La v. 126 604 Pac. Baker, Wash. (67 App. Kreybill, 26 Pac. & Lamar 17 Co. v. Colo. App. 1026); 497 6 Colo. Hess, La Junta & Lamar v. (42 50). Pac. appellant of the members We hold that quan purchased definite Association a Users quantity
tity of
entitled to receive
and are
beyond
except
shortage
means
caused
case
sys
the control of the
and distributor
owner
Rayl
30
Co.,
v.
Falls etc.
Twin
tem:
rel.
State ex
Robt.
(166
232);
Falls Sal
v. Twin
41
Pac.
Caldwell
Idaho,
591-593;
Wherein the has suc- purchasers ceeded the interests of the from the Irrigation Company, proprietors, as successors, its purchasers; he is entitled to the same as other provided, ap- he such does hold with land, its purtenant right, water for the benefit and use Company. Farms The latter Moline Irrigation successor the- proprietor will not be allowed upon water for use to divert own land until after purchasers of all the land from the proprietors and its successors as shall have supplied water been all described per to the extent contracts, their of two acre-feet acre. purchasers claiming origi are
35. The water not as They part appropriators. claiming nal adjudicated Irrigation Company. Company has Farms succeeded to that Moline Irrigation Company right. Either or its said quantity has the water users sold successor or Willow Creek. They water defined in their contracts. are bound *37 quantity water has their Until the so sold sales. purchasers Farms been the Moline delivered to Company right water has no to divert to its own land adjudicated Irrigation Company. is not to permit by to con- decree water be intended to any apply by person not who does trolled owned claim it to use. No will be allowed to a beneficial one apply a beneficial or take water which he does not to purchasers, all use, but of the claimed under contracts, described their several Company. adjudicated right Irrigation water to the purchasers to the of that The are entitled benefit pur- right in accordance with their contracts water Irrigation its The successor chase. proprietor profit will be allowed to interest as by not wrong withholding from its its own vendees. right public water of the state is
36. The to the attempt apply the water awarded An to involved. in the former decree of controversy made. The arisen has been has this court apply attempting water more land than supply For serve. reason of water will the public particular about no concern tracts
has ap shall become which the of land purtenant. controversy has itself The resolved into particular question tracts land entitled Irrigation Company The of the water. use appellants, sold the water have successors own; it to claim as their now be allowed and will years delivery average water for the six ending with beginning 5,036.5 amounting contracts, form The old acre-feet. provide for three acre-feet and acres, would, about op June, In re Water Willow Creek. require
therefore, 1,500 acre-feet. form con- new tracts owned the members of the Water Users pro- aggregate Association cover in 1,312.5 acres, viding per requiring two acre-feet in the acre, aggregate Accepting 2,625 acre-feet. do the as we average delivery quan- years of water for six as the tity capable delivery system, from the re- there supplying mains 911.5 acre-feet after both the old form and the new form contracts. cer- We are not description tain that we can determine the of the land appur- to which the 911.5 become acre-feet should tenant. capital
37. The stock the Orchards Com pany capital should be reduced the entire so *38 represent outstanding stock to one will be sufficient each share for acre land herein awarded a right, no and more. Paragraphs 5 1, 2, of the decree of the Cir- appealed hereby cuit Court are affirmed. paragraphs agree other said decree to are modified opinion. The cause is with direc- with this remanded opinion. a decree in accordance with tions to enter having argument, heard the Mr. Justice Belt, part in this decision. took no modified June Former order On Petition Extension oe Time for File Behearing.
Petition for 763.) appellant, Messrs. & Nichols, For Hallock Donald. cross-appellant, Emory Mr. M. Cran- Cole, For C.
dall. Rights op In re Water Willow Creek. respondent, Company,
For Orchards Water Messrs. Lytle, é Cake & and Mr. L. Davis Messrs. Cake A. Liljeqvist: respondents
For Moline Farms G. J. George Magenheimer, E. Davis. Mr. parte Upon application PEE an an ex CUEIAM . granted days thirty
order the time for extend rehearing. appel- petition presenting for a for has lant,Willow Association, Eiver Users'* strenuously objected because extension of time irrigation season is well advanced and litigation as determined should be require early possible. all The rules of the court given opportunity petitions and an to be served such any extending shall heard order be made to be before rehearing filing petitions for time. Time for expired 1925. Inasmuch as the order was on June thirty extending days, for the time and the re- made cross-appellants probably spondents have relied be harsh now to rescind the order would thereon, it appellants, absolutely. unfair believe it We days. thirty extend the time The order however, extending thirty days time for made heretofore rehearing petition filing is, therefore, modified, cross-appellants given respondents *39 peti- present in which their 25, 1925, June until rehearing. tions
Former Modified. Order July, Willow Creek. oe July 14, Rehearing denied Rehearing. On Petition eor (237 682.) Pac. appellant,
For Messrs. é Nichols, Donald. Hallock Emory cross-appellant, For Mr. M. Cran- Cole, C.
dall. cross-appellants,
For W. B. Eaton et Mr. P. al., J. Gallagher. respondents,
For Moline Water and C. J. Magenheimer, George Mr. E. Davis. respondent, Company,
For Orchards Water Messrs. Lytle, Liljeqvist. & & Cake and Mr. L. Cake, Davis A. respondents 39. The COSHOW, have ad J . respectful very urgent petition dressed for re hearing. This has our serious had consideration and opinion. are constrained adhere to our we former petition principal upon contention based claim that this court Circuit Court were jurisdiction controversy to determine the without be appellants respondents. This tween thoroughly considered in matter was our former opinion. matters whether the before Water Board, as was done instituted or whether it was initiated a suit case, instant directly equity in the Circuit as was done in Court, 1065). River 114 Or. Hood case, within involved the issues matters All the tendered Equity, pleadings be determined. hav- should *40 Rights oe Willow In re the entire dispose of should acquired jurisdiction, ing possible: where matter one the question precise The Laws. Oregon Section of the description a appeal in this was presented made appurtenant. should be which water to that ques- determining escape We could not rightfully respondents, inclined. tion if were so we statement: this their make original brief, adjudica- original under the “The determination involved in appropriation tion was as the complete to application except present proceedings, the lands de- upon beneficial use the waters the Circuit Court.” in the decree of scribed about in that statement In the decree referred to In present land were involved. acres of 15,000 in- 4,500 about acres only case are of the stage re- made According showing volved. presented could not determine the issues we spondents and the contests respondents application without of the appellants describing and protests issued to the the water land entitled to Irrigation Company. & Land respondents behalf of the argument on enlarge jurisdiction an did appeal effect over court from which court appellant applicable. Respondents taken is not. appeal has been appeal that no taken. Our former contend is a continuation of the origi- holds that this opinion determine instituted the relative nal proceeding, River tributaries. of the Willow for a take rehearing respondents petition In their' original in their holding. But brief exception sentence: find this we
July,
or Willow Creek.
peti-
present
proceedings
under the
instituted
“The
adjudi-
original
supplemental
tion
those
*41
’’
cation.
Respondents
petition for
in their
40.
claim
also
parties
necessary
rehearing
deter
a final
the
to
that
rights
under
secured
mination
the waters
to
appropriation
in
It is
the
court.
not before the
are
acquired
rights
Mo-
from the
timated that
have been
Company,
proprietary
to
successor
line Farms
Irrigation Company,
are
which
River
Willow
Land
&
proceeding.
dis
violated in
The record does not
this
represented
any parties
that
other than those
close
in
result.
in this
have an interest
any parties
are
is
not before the court
axiomatic that
they
privy
by
unless
are
not bound
the determination
represented.
parties
Provision made
are
who
showing:
upon
proper
rehearing
in
for
the Code
Oregon Laws.
5750
5749,
5751,
Sections
repre
parties
claim not to
been
41. If the
who
have
they
parties
proceeding,
privy
are
to the
sented
Respondents
by
con
are
the determination.
bound
original
appellants
by
bound
were
tend that the
reported
rights
water
determination of the relative
475),
(144
146 Pac.
because
Pac. in
There adjudicated original hearing in this court 475). reported Or. 592 Pac. appeal considering only In inchoate adjudicated & to Willow River Land *42 considered. have considered the were We 389), Sayre 33 15 v. Mont. case of Johnson, applicable pres- is do consider that it to the average that is true ent ease. It more than..the appar- opinion, determined in our former amount, ently Reservoir 3. It stored in No. true is also upon giving the measurements which that based not take stored was the witness did so amount far as could determine from consideration, we into so which water so stored the amount the record, belonged vested on Willow River carefully From which evidence, we tributaries. liberal made a allowance we considered, read system. under the We available amount water opinion stated our former amount believe probably can than had more water be all is lawfully. supply source Emory cross-appellant, has also Cole, 44. The contending rehearing, en is that he petitioned for a has he 4.2 of water because acre-feet titled Rights op July, Willow Creek. principle contract for that amount. He overlooks lawfully appropriate that no can one more water than beneficially economically applied. he can use That principle incorporated in the Sec- law of state: Oregon tions 5716 and 5717, Laws. The subdivision 2, Irrigation Company Willow River & Land could not appropriate more than the amount deter- heretofore necessary irrigation mined to be for the of the land right, awarded a water which is feet. three-acre conclusively, follows therefore, the Willow River Irrigation Company Land lawfully could not & con- cross-appellant, tract to Emory deliver to the Cole, to exceed three-acre feet A of water. contract in viola- positive legislation tion of is not enforceable: § C. J. opinion
Our former is adhered to.
Rehearing Denied. op Taxation Costs Disbursements. appellants
PER CURIAM . 45. The have filed a cost bill for their costs and disbursements in this respondents objections court. The have filed any particular but not to bill, cost item or items cross-appellant, Emory thereof. The Cole, has also appellants bill, filed a cost which both the re objections. spondents have filed As a rule the costs the event of the case: Oregon follow Section 567, Laws. *43 equity In 47. the court has discretion with re opinion
gard costs. We are of the that costs and appellants, should be disbursements awarded the against respondents, Association, Users Water the Magenheimer Company. Gr. J. Moline Farms management in the control Their conduct of the Company, both Water Orchards before and after the oe Willow Com- transferred to the Orchards Water litigation. pany, primary the of the We be- is cause they just equitable should bear lieve both it expenses litigation the statute. the within of the cross-appellant, opinion that We are Emory either costs or recover is not entitled Cole, against any suit. disbursements appellants in favor The will be allowed cost bill respondents appellants against J.Gr. of the Company. Magenheimer cost Moline Farms Emory dis- cross-appellant, be bill will Cole, allowed. Taxed. Costs September 15, denied and decree amended Motion to recall mandate On Recall Motion Mandate. 123.) $ Messrs. motion, Nichols, Hallock Donald.
For Emory cross-appellant, Mr. M. Cole, C. Crcm- For dall. Gallagher. Mr. P. ah, B. Eaton et J. W.
For Lytle& and Messrs. Messrs. Davis & Contra, Cake Liljeqvist. A.L.Mr. Cake again This matter has come on J . 36. COSHOW, appellants, petition upon a Users recall the an order to mandate and Association, incorporating spe therein the decree amend description the land entitled to use cific system. petition irrigation respondents reason that for the there resisted land entitled to use of tracts of number *44 Rights op Sept. In re Water 209 Willow Creek. parties water, holders of which were not appeal. heard on probably incorporate particular This court could description of the several tracts land to which appurtenant water is made under both its decree and new old form contracts. It cannot determine specific tracts if entitled excess, any. For that reason we believed it be to the in- terest all concerned to remand the case the Cir- cuit Court with directions to enter the decree. We opinion. are still of that The decree this court parties. has determined the of the Since accurately court cannot describe all of the land en- titled to water we believe is better it not to undertake any. attorneys respective to describe for the parties should assist the Court Circuit to formulate a opinions decree accordance with our and decree. If the attorneys several and their would spirit manifest the same to assist the court in arriv- ing description at attorney an accurate as has the Emory it would Cole, be no trouble to the Circuit accurately Court formulate a describing decree all land. incorporate It was not the intention of this court to description in its decree an accurate of the land en- per 3 titled to the acre-feet of water acre under the description form old contracts, of the land en- to the acre-feet of water titled under the new form surplus, any. if contracts, The intention definitely quantity fix which should be Company. awarded to Orchards Water The divi- sion the water several tracts of land entitled approximate only. ap- was intended as thereto This pears by the use of the word “about” and the fact
119 Or. —14 op Eights In quantity a variable available is by averaging quantity, in the which was fixed decree up quantity years. for six available *45 principal questions of law decided were: quantity appro- for
First, of water available priation. definitely. was fixed That
Second, that the holders of the old form contracts, providing approximately 4.2 acre-feet of water, only. to 3 acre-feet entitled proprie- successors in
Third, interest, tors of Eiver "Willow Land and Com- pany prorate entitled are not the holders of providing the new contracts, form for two acre-feet per shortage water case of a acre, of water. appellants Fourth, who are holders of new quan- form contracts are entitled an award of that regardless tity they of water of whether or not had applied the water a beneficial use on before January because their vendor had withheld preventing from ap- them thus the water them from plying a beneficial use. decree of this
The former court is amended for purpose clarifying the award of water to the tracts entitled different to the use thereof. we the Circuit amended, believe Court As will have no proper given if assistance trouble, the counsel representing the different interested, describing definitely all tracts of land entitled water available Willow Creek use and its tributaries. incorporate petition recall and decree description specific the land entitled to the use denied. Amended. Petition
Decree Denied.