Carson v. Gentner

Citation52 P. 506,33 Or. 512
PartiesCARSON v. GENTNER et al. [1]
Decision Date15 March 1898
CourtSupreme Court of Oregon

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

Action by A.H. Carson against C.F. Gentner and others to enjoin defendants from interfering with plaintiff's maintenance of a ditch constructed across their premises. Judgment for plaintiff. Defendants appeal. Affirmed.

This is a suit to enjoin defendants from interfering with plaintiff's maintenance of a ditch constructed across their premises. The evidence shows: That on December 23 1859, the surveyor general of Oregon approved the plat of the survey of township 37 S., range 5 W., of the Willamette meridian, whereupon the legal title to section 16 of said township and range became vested in the state of Oregon for the support of common schools. 9 Stat. 323; 11 Stat. 383. That in 1868 one Lewis Strong constructed a ditch across the W. 1/2 of the N.E. 1/4 of said section, and thereby diverted from Board Shanty creek the waters thereof, which he used in working a mine in section 22, in said township and range but, having abandoned his improvements, plaintiff, on April 1, 1876, took possession thereof, and with the water flowing in the ditch continued the operation of the mine, during nearly every season, to the commencement of this suit. That on November 21, 1883, defendants settled upon the land first above described, through which Board Shanty creek flows, and thereafter obtained a deed from the state of Oregon for said tract which contained no reservation of water rights. That on November 30, 1892, plaintiff endeavored to go on defendants' land to repair said ditch, but they refused to permit him to do so, whereupon he commenced this suit for the relief hereinbefore stated. The defendants, after denying the material allegations of the complaint, allege that plaintiff never had any license from the state of Oregon to enter upon its school lands, nor had he or his predecessors any privity of interest with the state, by which he or they were authorized to construct or maintain said ditch across the land now owned by them, or to use the waters of said creek. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, and the court found, from the evidence, that plaintiff was the owner of said ditch, and for more than 16 years had been in the adverse possession thereof, and was entitled to use the same to carry the waters of Board Shanty creek, of which he was also entitled to the use, and thereupon perpetually enjoined defendants from interfering with plaintiff's ownership of the ditch and right to enter upon their lands, at all times when necessary to repair the same, from which decree defendants appeal.

Davis Brower, for appellants.

G.W Colvig, for respondent.

MOORE C.J. (after stating the facts).

The question presented for consideration by this appeal is whether a prior appropriator of water from a natural stream, flowing through state lands, has such a vested right to the use of the water and to the ditch in which it flows also constructed on said lands, as will defeat the claim of one who, with notice of such diversion and existence of the ditch, obtains from the state a deed for the premises, without reservation of any water rights. Defendants' counsel contend that, prior to the appropriation complained of, the state of Oregon was a riparian owner of the land sought to be burdened with the easement, and entitled to have the waters of said stream continue to flow in its natural channel past said land; that the state, prior to the act of February 24, 1885 (Hill's Ann.Laws, §§ 4057-4060), having conveyed to defendants said premises without reserving any water rights therein, they acquired by their deed the ditch constructed thereon, and also a usufructuary interest in the flow of the waters of said creek in its natural channel; and that plaintiff, not having had possession of the ditch, or the use of the water of said creek, for a period of 10 years after defendants' entry, the court erred in restraining them from utilizing their own property. Plaintiff's counsel insist, however, that the ditch in question was constructed in pursuance of a license from the state, upon the faith of which labor and money were bestowed and expended thereon, thus rendering such license irrevocable, and that plaintiff, having been in the adverse possession of the ditch and water flowing therein, for more than 16 years, had in this manner acquired an easement in defendants' premises which entitled him to continue the use thereof unmolested by them.

The doctrine of the common law, that the waters of a stream must continue to flow in its natural channel, undiminished in quantity and unimpaired in quality, has been very much modified in the territory embraced in the Pacific Coast states, where a new rule, founded upon the necessities under which the early settlers labored, has been inaugurated. So much, only, of the common law was adopted by these settlers as was applicable to the condition of the country in which their lot was cast; and, realizing that water is a powerful agent in separating the precious metals from the baser materials in which it is embedded, and also serves, when used in irrigating arid tracts, to cause the desert to bud, blossom, and bear fruit, and that without the use of such water a vast region must forever remain valueless and uninhabited, necessity compelled these primitive lawgivers to adopt for their government a code of customs which prescribed the extent of public land each was entitled to, and regulated the manner of appropriating water to the operation of mines and the cultivation of farms, orchards, and vineyards. This latter custom provided that he who first changed the course of a natural stream flowing through public lands, which at the time was common to all, and appropriated the water so diverted to some useful purpose, thereby acquired a superior right to continue the use thereof against every claimant except the United States. The justice of this custom was recognized by the courts, which enforced its provisions in opposition to the doctrine of the common law; and the legislative assemblies of these states, following the example set by the courts, have passed in many instances acts guarantying protection to prior appropriators in their possessory rights in the diversion of water against all claimants except the sovereign. The legislative action of this state on the subject is embodied in section 3832, Hill's Ann.Laws, approved October 24, 1864, which reads as follows: "Miners shall be empowered to make local laws in relation to the possession of water rights, the possession and working of placer claims, and the survey and sale of town lots in mining camps, subject to the laws of the United States."

The wisdom of this new rule was finally recognized by congress, which, on July 26, 1866, passed an act, the ninth section of which, so far as applicable to the case at bar, provides "that, whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed." 14 Stat. 251; Rev.St. U.S. § 2339. It has been repeatedly held that the provisions of the section just quoted only confirm to the owners of ditches and water rights on the public domain the same privileges which they enjoyed under the local customs, laws, and decisions of the courts prior to its passage. Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 Wall. 670; Jennison v. Kirk, 98 U.S. 453; Broder v. Water Co., 101 U.S. 274.

The custom of appropriating water to a beneficial use has been limited by this court, which holds that the act of congress of July 26, 1866, applies only to government lands. Curtis v. Water Co., 20 Or. 34, 23 P. 808, and 25 P. 378. Mr. Justice Lord, rendering the decision of the court in that case, and speaking of the diversion of the waters of a stream claimed to have been made in pursuance of the provisions of the federal statute above quoted, says: "While that act was passed a year later than the facts show the waters of the creek were diverted, yet it applies only to government land and streams flowing through it. In these, under the circumstances indicated in the act, the prior appropriation of the water may operate to secure a vested right to divert it, which shall be maintained and protected. But it has no application to the lands of individual owners, and, as against them, can confer no right to divert the waters of streams flowing through their lands."

In Water Co. v. Hancock, 85 Cal....

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  • In re Hood River
    • United States
    • Supreme Court of Oregon
    • July 29, 1924
    ...Justice McCourt's opinion, Mr. Justice Moore, at page 339 of the report (86 P. 777), records the following language: "In Carson v. Gentner, 33 Or. 512, 52 P. 506, 43 L. A. 130, the plaintiff maintained a ditch across certain lands owned by the state of Oregon, which it thereafter conveyed t......
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    ...a stream was flowing through public lands were recognized as superior to riparian rights subsequently arising. Carson v. Gentner, 33 Or. 512, 52 P. 506, 43 L. R. A. 130 (1898); Brown v. Baker, 39 Or. 66, 65 P. 799, 66 P. 193 (1901). It was also said to be "established doctrine in this state......
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