Browning v. Lewis

• Decision Date: 25 March 1901
• Citation: 64 P. 304,39 Or. 11
• Parties: BROWNING v. LEWIS et al.
• Court: Oregon Supreme Court

64 P. 304

39 Or. 11

BROWNING v. LEWIS et al.

Supreme Court of Oregon

March 25, 1901

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Action by L.N. Browning against L.A. Lewis and W.H. Hampton. From a decree in favor of the plaintiff, defendants appeal. Affirmed.

This is a suit to enjoin interference with the flow of water in the channel of Grave creek, a nonnavigable stream, to plaintiff's premises. The transcript shows that plaintiff is the owner of a farm in Josephine county, through which said creek flows in a westerly direction in well-defined banks; that in the spring of 1870 he constructed a dam therein, and by means of a ditch diverted water therefrom which he has since continuously used for irrigation; that in the winter of 1879 and 1880 the water so diverted was used to propel a lathe, and in the winter of 1893 and 1894 to separate gold from dirt hauled from his mine to the ditch and that in the spring and fall of 1897 and 1898 he permitted his son and another person to use it to operate an arrastre when not needed for irrigation; that the defendants, in 1895 dammed said creek above plaintiff's point of diversion and, having secured a deed from the latter of a right of way, dug a ditch across his land, whereby they diverted and used during the winter or mining season a large quantity of water. The plaintiff alleges in the complaint that he is the owner of 350 acres of arid land in said county; that in 1870 he made a prior appropriation of 300 inches of water from Grave creek, which he has since continuously used for mining, milling, domestic, and agricultural purposes; that in the summer and fall of 1897, and in April, 1898, while he was using the water of said stream, the defendants unlawfully diverted all the water therefrom, to his damage; and that, if the interruption is permitted to continue, it will result in his irreparable injury. The defendants deny the material allegations of the complaint, and aver in their answer that in 1895 they purchased the Columbia mine, constructed a ditch thereto from said creek, and diverted about 3,500 inches of water, which they use in operating said mine; that on July 19, 1895, the plaintiff executed to the defendant L.A. Lewis a deed for the right of way for their ditch across his premises, at which time he represented to them that he did not claim the water of said creek, except for the purpose of irrigating the improved portion of his land, which consists of about 60 acres, requiring about one inch of water to the acre; that said representations were made for the purpose of inducing the defendants to purchase said right of way, and that, relying thereon, they constructed the ditch; that, prior to securing plaintiff's deed, they became the owners by purchase of all the water rights upon said creek, except for the purpose of irrigation; that they are now entitled to the use of said water during the mining season, which begins about October 1st and ends about June 20th of each year; and that the plaintiff, since the execution of said deed, has increased the size of his ditch, and now uses water conducted therein for the purpose of mining. The reply having put in issue the allegations of new matter in the answer, the testimony was taken before the court, which found that plaintiff was a prior appropriator of the water of said creek, and entitled to 180 inches thereof for mining, milling, domestic, and agricultural purposes as a first right upon said stream, and by its decree perpetually enjoined the defendants from interfering in any manner with the flow of that quantity in the channel of said stream to the head of plaintiff's ditch; from which decree the defendants appeal.

A.S. Hammond, for appellants.

G.W. Colvig and Wm. M. Colvig, for respondent.

MOORE J. (after stating the facts).

The answer admits plaintiff's right to the use of water from Grave creek for irrigation, but denies that he is entitled to more than 60 inches thereof for that purpose, and it is contended by defendants' counsel that the court erred in awarding him a greater quantity than thus conceded. The testimony shows that plaintiff has in cultivation about 60 acres of land, all of which is irrigated from the ditch, and about 50 acres of pasture, which the water therefrom will cover; but it does not appear what quantity is necessary to irrigate said land successfully. In the absence of such testimony, the court determined the measure of plaintiff's right from a consideration of the testimony respecting the capacity of his ditch. Several of the defendants' witnesses testify that the plaintiff, by annually cleaning out his ditch, had very much enlarged it but the latter and several of his witnesses say that he caused to be removed only the silt deposited therein from the operation of placer mines on the creek above the point of his diversion, and that the capacity of his ditch was not increased beyond what it had originally been. The question in relation to any change in the condition of plaintiff's ditch is one of fact to be determined from a preponderance of the testimony, and, as the court below saw the witnesses, and heard them testify respecting this matter, the finding that the ditch had not been enlarged, or its capacity increased, will not be disturbed. The defendants called one J.S. McCall, an experienced civil engineer, who measured plaintiff's ditch, and testified that he computed its capacity, and ascertained that it was capable of conducting 180 inches of water, miners' measurement. The testimony, however, shows that near the lower line of plaintiff's land the water diverted by him is conducted for a short distance in a flume, the capacity of...