Baldock v. Atwood

• Court: Oregon Supreme Court
• Writing for the Court: STRAHAN, C.J., (after stating the facts as above.)
• Citation: Baldock v. Atwood, 21 Or. 73, 26 P. 1058 (Or. 1891)
• Decision Date: 24 June 1891
• Parties: BALDOCK v. ATWOOD et al.

26 P. 1058

21 Or. 73

BALDOCK v. ATWOOD et al.

Supreme Court of Oregon

June 24, 1891

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 wrongful acts of d...