State of Washington v. State of Oregon

Citation80 L.Ed. 837,56 S.Ct. 540,297 U.S. 517
Decision Date02 March 1936
Docket NumberNo. 11,11
PartiesSTATE OF WASHINGTON v. STATE OF OREGON
CourtUnited States Supreme Court

Messrs. George G. Hannan and John H. Dunbar, both of Olympia, Wash., and John C. Hurspool, of Walla Walla, Wash., for the State of Washington.

Messrs. Charles Z. Randall, of Pendleton, Or., George T. Cochran, of La Grande, Or., and I. H. Van Winkle, of Salem, Or., for the State of Oregon.

Mr. Justice CARDOZO delivered the opinion of the Court.

With leave of court (283 U.S. 801, 51 S.Ct. 559, 75 L.Ed. 1423), the state of Washington filed a bill of complaint on July 22, 1931, in which it charged that the state of Oregon as wrongfully diverting the waters of the Walla Walla river to the prejudice of inhabitants of Washington, and prayed an adjudication apportioning the interests of the two states in the river and in tributary streams and restraining any use or diversion of the waters found to be unlawful. To this complaint Oregon filed an answer containing denials and defenses, to which Washington replied. On February 20, 1933, this court appointed a special master with authority to take evidence and with directions to make findings of fact and conclusions of law to be submitted to the court with recommendations for a decree. 288 U.S. 592, 53 S.Ct. 399, 77 L.Ed. 971. The case is now here upon exceptions filed by Washington to the master's report, which finds the facts fully and advises the dismissal of the bill.

The Walla Walla river, a nonnavigable stream, rises in the Blue Mountains of Northeastern Oregon. For about four miles above the city of Milton it flows through a narrow canyon; the waters for that reach being inaccessible for purposes of irrigation. At Milton the river broadens out in a delta formation. The first division in this formation is at Red Bridge, near the city, where the river breaks into two branches. One, the Tum-a-lum, as it is known in Oregon, or the main Walla Walla, as it is known in Washington, flows through cobble rocks over great depths of gravel till it reaches the McCoy Bridge. There, at the margin of an alluvial fan, springs rise from below the surface, and feed the flow anew. Thus reinforced, the stream moves northwesterly to the line between the two states, and again northwesterly for about 30 miles in Washington to its confluence with the Columbia river. A second branch of the river, starting at the Red Bridge, is known as the Little Walla Walla, which divides after a mile into the Crocket and the Ford. Prongs of the Crocket which contribute little, if any, water during the irrigation season, combine with another stream after crossing the state line, and discharge into the main river above the intake of the canal of the Gardena project. Another prong of the Crocket comes together with the Ford and joins the main river in Washington below the intake of the canal. Still another tribu- tary, known as the Mill creek, rises in the Blue Mountains and flows far to the east of the courses just described. After breaking up into other creeks (the Yellowhawk, the Garrison, and others), it joins the main stream of the Walla Walla within the state of Washington. No claim is made by the complainant that the waters of Mill creek have been illegally diverted. Indeed, the fact appears to be that the inhabitants of Washington use the waters of that creek to the exclusion of any use thereof by the inhabitants of Oregon. The claim of wrongdoing has its center in the use of the waters of the Walla Walla arising above the Red Bridge.

The Walla Walla Basin has a emiarid climate with warm dry summers and cold wet winters. The streams contributing to the river are supplied in the main from the snows of the Blue Mountains. Upon the coming of spring, these snows are melted, and the river at that season attains its highest flow. Even then there are variations, not only from month to month, but from day to day. With the advance of summer, the flow diminishes greatly, particularly in the latter part of July and August. In such a climate agriculture cannot go on successfully without the aid of irrigation. A sporadic supply of water will not meet the farmer's needs. 'To be available in a practical sense, the supply must be fairly continuous and dependable.' Wyoming v. Colorado, 259 U.S. 419, 471, 42 S.Ct. 552, 560, 66 L.Ed. 999. A fair division of the water is thus vital to the prosperity of this agriculatural community, and even to its life, for agricultural in the main it is. True, there are cities also within the limits of the watershed, Walla Walla in Washington, with a population of 15,976; Milton and Freewater in Oregon, with a combined population of 2,308. Even so, the welfare of the cities is closely bound up with that of the area about them. Indeed, there has been a unity of growth in the development of the whole community, a development quite inde- pendent of the dividing line between the states. As already pointed out, farmers in Washington have had the benefit of Mill creek, which takes its rise in Oregon.

Complainant and defendant have stipulated that for the purposes of this case the individual rights of the respective landowners and water owners concerned in both states are governed by the doctrine of prior appropriation. Wyoming v. Colorado, supra. The Washington court made a decree in September, 1928, adjudging the priorities of appropriators in Washington. The Oregon court made one in August, 1912, adjudging the priorities of appropriators in Oregon. Neither state was a party to the judicial proceedings in the other. The stream supply has been sufficient through the aid of the Mill creek to satisfy rights with priorities up to 1891 under each of the decrees. What Washington complains of cheifly is the deficiency in the supply available for the satisfaction of alleged priorities up to 1892. Particularly it complains of the deficiency of the supply for the Gardena Farms district. By the decree of September, 1928, the district was adjudged the holder of a water right with an 1892 priority for the irrigation of 7,000 acres upon specified conditions. This priority, though recognized in Washington, is contested by Oregon. The project affected by that award was started in 1892 by the Walla Walla Irrigation Company. A canal to connect with the Walla Walla river was to carry water for irrigation to a tract known as the Gardena district, twelve miles or more away. Work on the canal was slow and intermittent, chiefly for lack of funds. About 1903 the engineers discovered that the best land in the District could not be irrigated at all unless the plans were greatly changed. Thereupon a new system of construction was adopted following a different route. Not till 1904 or later was water in the canal applied beneficially to any acreage in Washington except in trifling quantities. Long before that time, beginning in 1880 or earlier and continuously thereafter, irrigators in Oregon had been appropriating to themselves the waters of the river above the Red Bridge.

We turn at this point to a consideration of the acts of appropriation, their nature and effect, in an endeavor to ascertain whether they were legitimate or wrongful. For more than fifty years before the filing of this suit irrigators in Oregon at seasons of shortage maintained crude or temporary dams across the Walla Walla river close to the Red Bridge. During the low-water periiod the effect of the dam was to turn the waters of the river away from the channel of the Tum-a-lum into the channel of the Little Walla Walla, where they were used for agricultur l, domestic, and kindred purposes. A small quantity of water necessary to supply the right of the East Side ditch has been permitted to go by the dam without interference. With that exception, which is negligible, all the waters have been diverted without interruption and without protest for more than fifty years. Was this a wrong to Washington?

'Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one state at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.' New York v. New Jersey, 256 U.S. 296, 309, 41 S.Ct. 492, 496, 65 L.Ed. 937; North Dakota v. Minnesota, 263 U.S. 365, 374, 44 S.Ct. 138, 68 L.Ed. 342; Connecticut v. Massachusetts, 282 U.S. 660, 669, 51 S.Ct. 286, 289, 75 L.Ed. 602; Missouri v. Illinois, 200 U.S. 496, 521, 26 S.Ct. 268, 50 L.Ed. 572. The master has found: 'There is no satisfactory proof that to tuen down water past the Red Bridge in Oregon during the period of water shortage would be materially more advantageous to Washington users than to permit such water to be applied to surface irrigation in Oregon.' This is so because of the nature of the channel of the Tum-a-lum river. During the pe- riod of water shortage, only a small quantity of water would go by if the dams should be removed. There is evidence that this quantity, small at the beginning, would be quickly absorbed and lost in the deep gravel beneath the channel. Experiments have proved that it would not reach the McCoy Bridge, only a few miles down the stream. As to this the master finds: 'The channel of the Tum-a-lum river between the Nursery Bridge (which is close to the Red Bridge) and the McCoy Bridge (farther down) is an extremely wasteful channel. Water turned past the Red Bridge sinks and becomes part of the underground waters.' 'To limit the longestablished use in Oregon would materially injure Oregon users without a compensating benefit to Washington users.' These findings are well supported by the evidence. Complainant has brought forward no adequate reason for disturbing them. Connecticut v. Massachusetts, supra, 282 U.S. 660, at page 669, 51 S.Ct. 286, 75 L.Ed. 602. Accepting them, as we do, we accept also the conclusion to which they point with inescapable directness. To restrain the diversion at the...

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