Boyce v. Cupper

• Decision Date: 02 July 1900
• Parties: BOYCE v. CUPPER.
• Court: Oregon Supreme Court

61 P. 642

37 Or. 256

BOYCE v. CUPPER.

Supreme Court of Oregon

July 2, 1900

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

Suit by Clara Boyce against H.A. Cupper. From a decree in favor of defendant, plaintiff appeals. Modified.

This is a suit to enjoin the diversion of the water of a nonnavigable stream. The plaintiff alleges, in substance, that she is the owner in fee of 20 acres of fruit land in Grant county, Or that about 1870 her predecessor in interest diverted the water of a small stream known as "Cupper Creek," and made a prior appropriation of all the water thereof which he and his successors have since constantly used in irrigating said land, until about June 12, 1898, when the defendant unlawfully diverted and appropriated the water of said creek to which she is entitled, in consequence of which her fruit trees were damaged, and that if such diversion be permitted to continue she will suffer irreparable injury. The defendant denies the material allegations of the complaint and avers, in effect, that about 1870 his predecessors in interest settled on unsurveyed public land of the United States embracing said creek, and made a prior appropriation of all the water thereof, which he and his successors have since constantly used in irrigating said land, and that the water so used by plaintiff and her predecessors was the surplus which he permitted to flow down to her premises. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a decree that defendant was entitled to all the water of said creek above his ditches, and the plaintiff appeals.

T Williams, for appellant.

J.J. Balleray and V.G. Cozad, for respondent.

MOORE, J. (after stating the facts).

The evidence shows that said creek is a small nonnavigable stream which rises in the foothills of the western spur of the Blue Mountains, in Grant county, flows in a southerly direction and empties into the North Fork of the John Day river. The snow from these mountains, melting in the early spring, causes the creek to carry quite a volume of water, but as the season advances it gradually decreases, until about the middle of July, when the bed of the stream, except the lower part thereof, which is supplied by springs, usually becomes dry. About June, 1869, one Robert Ogle settled upon a tract of unsurveyed public lands of the United States, and, having thereafter appropriated the water of said creek to the irrigation thereof, he transferred his interest therein to William Welch, who sold the same to the defendant. The land having been surveyed, the defendant filed pre-emption and timber-culture entries thereon of 160 acres each, but, having made final proof and secured the title to his preemption, he relinquished the timber-culture entry, and filed a homestead thereon, by which he secured a title thereto. Marcus Anderson settled upon 160 acres of land on said creek below defendant's, and above plaintiff's, land, and, having secured a title thereto, conveyed the premises to the defendant. The plaintiff's predecessor in interest settled upon the public lands on the North Fork of the John Day river at the mouth of Cupper creek about August, 1869, and appropriated water from the latter stream, which he and his successors have used in irrigating the land now owned by plaintiff, raising thereon fruit and vegetables. The court found that defendant's predecessor made a prior appropriation of the water of Cupper creek, and, while there is some conflict in the testimony respecting the priority of the appropriation, we think the finding is supported by the weight of the testimony.

Whether it was Ogle's intention to secure the title to 320 acres when the land upon which he settled was surveyed does not appear, but it is evident that defendant, when he purchased the improvements thereon from Welch, did not intend to irrigate the land upon which Anderson settled. Plaintiff's predecessor appropriated the excess of the water flowing in Cupper creek after Ogle's prior right was supplied,...