Appeal
from circuit court, Baker county; M.D. CLIFFORD, Judge.
The
cause was finally tried upon the second amended complaint
which was filed by leave of the court after the evidence was
all taken, apparently to conform the pleadings to the facts
proved. Said amended complaint alleges "That at all
times stated in complaint plaintiff was a citizen of the
United States and over twenty-one years of age; that ever
since 1864 plaintiff has been the owner of certain real
estate in complaint described, and resided upon the same
continually, and used the same for stock-raising and
agriculture. That at the time of plaintiff's settlement
in 1864, said lands were unoccupied public lands of the
United States. That at and ever since said time there flowed
through the lands of the plaintiff a natural water-course
now known and called 'Baldock Slough,' which slough
headed on a natural water-course in said county called
'Powder River,' at a point about four and one-half (4
1/2) miles from said lands of the plaintiff, at or near the
corporate limits of Baker City, and on lands now owned by the
defendants, which lands are particularly described; and that
the lands now owned by the defendants at the time of
plaintiff's settlement were unoccupied public lands, and
that said slough runs through the lands of the defendants.
That plaintiff's lands are dry and arid in character, and
that the use of water artificially caused to flow over the
same is required and necessary to make said lands produce an
agricultural crop. That in the year 1865 the plaintiff
appropriated of the water of said Baldock slough, and used
in irrigating crops on his said lands by means of ditches
from said slough, three hundred inches of water; and at all
proper times and seasons thereafter, continuously in each
year and up to the present time, the plaintiff has actually
used three hundred inches of water for the purpose of
irrigating said land, watering stock, and for domestic uses
and that he has remained in the uninterrupted and peaceable
use of the same up to the time of committing of the acts of
the defendants hereinafter set forth. That plaintiff's
use and enjoyment of said water continued for twenty years
next preceding the commencement of this suit. That in
furtherance of said appropriation of said water, and to
obtain a larger supply thereof, plaintiff gave notice in
writing by filing the same in the office of the county clerk
of said Baker county, which notice is set out in haec verba
in the amended complaint, and claims three thousand (3,000)
inches instead of three hundred (300.) That when said notice
was filed the lands now owned by defendants were owned by one
C.B. Fisher. That in 1869 the channel of said slough where it
heads on Powder river became so obstructed from the effect of
dams in the river, and the acts of Chinese gardeners being on
defendants' land above described, that the natural
capacity thereof was lessened, and the amount of water
therefor appropriated and used by the plaintiff was prevented
from flowing therein; and that for the purpose of allowing
said water so appropriated by the plaintiff to flow down said
slough to his lands the plaintiff, by and with the consent of
said C.B. Fisher, constructed a dam in the bed of said Powder
river at a point near the original townsite of Baker City
and on the lands of said C.B. Fisher, from said dam cut and
dug a ditch to said Baldock slough; and that by means of said
ditch and dam, and the water flowing through and flowing
naturally in said slough, the said three hundred inches of
water appropriated by said plaintiff did flow down and
through said slough to the lands of the plaintiff, and were
then used by him for agricultural and domestic purposes. That
said appropriation by plaintiff of three hundred inches of
water, and the increase thereof made at the time of filing
and recording said notice, were each and all made and done
prior to any other appropriation of the water of Powder river
or Baldock slough by any other person. That plaintiff is the
owner of said three thousand inches of water so diverted and
appropriated, and entitled to have said water flow down said
slough to and upon plaintiff's lands, and to use the same
thereon for irrigation, watering stock, and for domestic
purposes. That said dam and ditch were owned and used by the
plaintiff, peaceably, uninterruptedly, without hindrance from
Fisher, and continuouly from the year 1870 to the year 1881,
for the purpose of conducting the water so appropriated and
belonging to the plaintiff from said Powder river to Baldock
slough. That in the year 1881 the defendants herein, being
the grantees of said C.B. Fisher, and the owners of the land
whereon said ditch and dam were situated, so changed the
channels of said Powder river and obstructed said ditch and
slough that neither said ditch nor slough would carry the
waters so appropriated by the plaintiff, nor any amount of
water whatsoever, from said Powder river. That plaintiff, by
and with the consent of the defendants, and at their
suggestion and request, and in consideration of their
reclaiming a large portion of their said lands for streets,
agricultural and building purposes, then occupied and covered
by said Baldock slough and ditch, changed the location of his
said ditch, and the point of diversion of his water from
Powder river, by placing a dam in the bed of said river at a
point about three hundred feet above the dam last mentioned,
and by cutting a ditch along the south line of
defendant's said lands connecting said river and Baldock
slough; and defendants did thereupon fill up and reclaim the
lands formerly covered by said ditch and slough channel upon
their said lands. That since about the year 1881, at a point
near where said three hundred inches of water are diverted
from Powder river into said Baldock slough, the defendants
have interfered with and interrupted the flow of said water
in said ditch of the plaintiff, and diverted the same from
flowing into said ditch and slough, and did attempt thereby
wrongfully, unlawfully, and inequitably to appropriate said
waters flowing in said ditch and slough to their own use and
benefit, and have repeatedly, since said time, prevented him
from using and enjoying his said water and water-right, to
his damage in the sum of two thousand dollars. That on the
17th day of November, 1885, defendants again wrongfully
entered upon said ditches and water-right of the plaintiff,
and interfered with the waters of plaintiff flowing in said
ditch and slough, and with a large force of employes, and
with picks and shovels, began to divert said waters from said
ditch and slough, and began to construct in said ditch and
slough a dam of a permanent character, with the intent
thereby, and by means of said dam, to prevent any of the
waters so appropriated by the plaintiff from flowing in and
down said ditch or slough to his said lands, and wholly and
forever deprive the plaintiff of the use of the same. That
defendants threaten to continue the construction of said dam
in said ditch of the plaintiff, and to entirely close up the
same, and to wholly and forever prevent said water, or any
part thereof, from flowing through said ditch or dam, and
defendants will, unless restrained, erect in said ditch at
said point a permanent dam, and by said means divert all of
said water from plaintiff's said lands that ought of
right to flow through the same, all of which acts of the
defendants are wrongful and will cause the plaintiff
irreparable damage. That plaintiff's lands are of the
value of three thousand dollars per annum for agricultural,
stock and fruit-growing purposes, and said value is solely
dependent on the use of said three thousand inches of water,
and that without the use of said water said lands would be
rendered entirely valueless, and plaintiff has no plain,
speedy, or adequate remedy at law. That plaintiff has
sustained other damages by the said...
