Bowman v. Bowman

• Decision Date: 12 June 1899
• Citation: 35 Or. 279,57 P. 546
• Parties: BOWMAN v. BOWMAN et al.
• Court: Oregon Supreme Court

57 P. 546

35 Or. 279

BOWMAN v. BOWMAN et al.

Supreme Court of Oregon

June 12, 1899

Appeal from circuit court, Union county; Robert Eakin, Judge.

Suit by Isaac T. Bowman against J.W. and A.C. Bowman. From a decree in favor of plaintiff, defendants appeal. Affirmed.

This is a suit to determine an adverse claim to the use of water, to enjoin defendants from interfering with an irrigating ditch and to recover damages for an alleged trespass. Plaintiff alleges that he is the owner of 200 acres of land in Union county, and that the defendants own 160 acres adjoining thereto on the south, through which tracts Big creek flows in a southerly direction; that in 1869 his grantor diverted 500 inches of water, miners' measure, from the east side of said creek, and in 1872 250 inches, miners' measure, from the west side thereof, which by means of ditches he appropriated to the irrigation of his land; that the defendants, unlawfully claiming to have some interest in or right to the easement, tapped the ditches and appropriated the water, in consequence of which he has sustained damage in the sum of $250. The defendants, denying the material allegations of the complaint, aver that their predecessor in interest aided plaintiff's grantor in constructing said ditches, under an agreement that one-half of the water flowing therein should be appropriated to their land notwithstanding which plaintiff has used more than his share thereof, whereby they have been damaged in the sum of $100. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, resulting in a decree awarding to plaintiff the sum of $25 as damages giving him from the east-side ditch 75 and from the west side 15 inches of water, miners' measure, under 6-inch pressure; and perpetually enjoining defendants from interfering with said ditches, or the plaintiff's use of the water flowing therein, to the extent of such award, from which decree defendants appeal.

J.F. Baker, for appellants.

T.H. Crawford, for respondent.

MOORE J. (after stating the facts).

It is contended that defendants' predecessor in interest, having, in consideration of obtaining water to irrigate his land, aided plaintiff's grantor in extending the ditches in order that the latter might procure the use of water for a beneficial purpose, thereby acquired an easement in the ditches, and such a right to the use of the water flowing therein as to render the license under which he performed the labor irrevocable, and that, acting upon this claim of right, the defendants and those from whom they derived their title have for a period of more than 10 years used a sufficient quantityof water to irrigate the cultivated portion of their said land, by which means a prescriptive right has been acquired to continue the use thereof. If the evidence bore out this contention, a reversal of the decree would necessarily follow, for the rule is well settled in this state that a parol license cannot be revoked after the licensee has expended money or performed labor in making valuable and permanent improvements on real property upon the faith of such license. Coffman v. Robbins 8 Or. 278; Huston v. Bybee, 17 Or. 140, 20 P. 51; Combs v. Slayton, 19 Or. 99, 26 P. 661; Curtis v. Water Co., 20 Or. 34, 23 P. 808, and 25 P. 378; McBroom v. Thompson, 25 Or. 559, 37 P. 57; Garrett v. Bishop, 27 Or. 349, 41 P. 10. The doctrine thus announced is not novel, for it has been repeatedly held that a parol license to do some act on the servient estate is, when executed, irrevocable. Washb. Easem. *560; Morse v. Copeland, 2 Gray, 302; Johnson v. Skillman, 43 Am.Rep. 192; De Graffenried v. Savage (Colo.App.) 47 P. 902.

Considering the rights of the respective parties, the evidence tends to show that in 1871 William Wilson settled upon said 200-acre tract, then unsurveyed lands of the United States, through which Big creek flows; that in 1872 he dug a ditch from the east side of said stream, and appropriated water therefrom and that, after he had perfected his title to said land, plaintiff, on December 17, 1890, became the owner thereof; that in 1871 P.H. Miles settled upon a tract of land adjoining Wilson's on the north, dug a ditch from the west side of Big creek, and made an appropriation of the waters thereof; that in 1875 I. Hyatt settled upon a tract of public land adjoining Wilson's on the south, and in 1877 extended Wilson's ditch to his land, and the next year he and Wilson jointly extended the Miles ditch to their tracts, and appropriated the water in irrigating the same; that, the title to the land on which Hyatt settled having been obtained from the general government, the defendant Mrs. A.C. Bowman on April 16, 1888, became the owner thereof; that plaintiff has in cultivation about 75 acres on the east and about 15 on the west side of Big creek, and Mrs. Bowman has in cultivation 12 3/4 acres on the east and about 7 on the west side thereof, which lands are arid, but when properly irrigated become very productive; that in 1893, Big creek becoming low, plaintiff appropriated nearly all the water in...