Brosnan v. Harris

• Decision Date: 05 August 1901
• Citation: 65 P. 867,39 Or. 148
• Parties: BROSNAN v. HARRIS.
• Court: Oregon Supreme Court

65 P. 867

39 Or. 148

BROSNAN v. HARRIS.

Supreme Court of Oregon

August 5, 1901

Appeal from circuit court, Malheur county; M.D. Clifford, Judge.

Action by Thomas J. Brosnan against W.P. Harris. From a judgment for defendant, plaintiff appeals. Reversed.

Will R King, for appellant.

Wm Smith, for respondent.

BEAN, C.J.

This is a suit to restrain the diversion of and interference with the water of a certain spring in Malheur county, known as "Fox Spring." Prior to August 4, 1899, the land upon which it is situated was unoccupied public land of the United States. In November, 1898, the plaintiff cut a ditch or trench some 30 feet long through the rim or embankment inclosing the spring, through which, in April, 1899, he conducted its waters into a "kind of a trail or swale that the snow water had made through there, and run it through this channel to" his premises, a quarter to half a mile distant, to be used, and which was used, for watering stock and other purposes, the surplus evaporating or disappearing in the ground without reaching any natural water course. In May, 1899, he filed what he intended to be a notice of location of all the waters of the spring, but which proved insufficient for want of a definite description, and soon thereafter contracted with some workmen to enlarge and develop the spring, and lay pipe therefrom to his premises so as to preserve all the water for use during the summer months, when it was his only natural supply. Before, however any of this work was done, with the exception of opening out and enlarging the trench previously dug, the defendant took up the land on which the spring is situated as a homestead, and forbade plaintiff from taking or using the water therefrom. The defendant, in his answer and testimony admits the existence of the spring, and says that at the time he entered upon the premises there was about an inch and a half of water flowing from it through an opening in the rim or embankment down to the plaintiff's premises. The court below decided in favor of the defendant, holding that the waters of the spring were not subject to appropriation, for the reason that there is no natural stream flowing therefrom, and it is not tributary to, nor does it form a part of, any natural water course. The argument is, in effect, that the waters of a perennial spring are not subject to appropriation unless they flow in a natural channel or form part of a water course. There seem to be but few cases in which the rights of the appropriator of the waters of such a spring, as against a subsequent grantee of the government, have been considered. If the water rises to the surface, so as to form a stream, it...