Claypool v. O'Neill

• Decision Date: 01 July 1913
• Citation: 133 P. 349,65 Or. 511
• Parties: CLAYPOOL et al. v. O'NEILL.
• Court: Oregon Supreme Court

133 P. 349

65 Or. 511

CLAYPOOL et al. v. O'NEILL.

Supreme Court of Oregon

July 1, 1913

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Proceedings by R.F. Claypool and another against Francis O'Neill, for the adjudication of the rights and priorities to the waters of a certain creek, brought into the circuit court on appeal from the adjudication by the Board of Control. From a decree for contestee, contestants appeal. Decree of circuit court reversed, and adjudication of Board of Control modified.

This is a proceeding brought into the circuit court by an appeal from the adjudication made by the Board of Control of the state of Oregon of the rights and priorities to the waters of Cottonwood creek, a tributary of Bully creek, in Malheur county, Or., in which Francis O'Neill sets up the fact that his rights to the waters of said creek had been adjudicated against Corder, the predecessor in interest of Claypool, in the S. 1/2 of the N.W. 1/4, and the N.W. 1/4 of the S.W. 1/4, of section 9, and against Arthur Sevey, by the circuit court of the state of Oregon for Malheur county, on the 6th day of October, 1899. In its determination of the relative rights to the use of the waters of said creek the Board of Control appears to have ignored the decree of the circuit court; and the circuit court in this case reversed the determination of the Board of Control, adjudging Francis O'Neill's rights as decreed in the former suit namely, to the use of 100 miner's inches of water. From the decree of the circuit court, Claypool and Sevey appeal to this court.

Hayes &amp Crandall, of Vale, for appellants.

John L Rand, A.A. Smith, and Wm. H. Packwood, Jr., all of Baker, for respondent.

EAKIN J. (after stating the facts as above).

The important question for consideration is whether the decree in O'Neill v. Corder et al. is final and conclusive against Claypool and Sevey in this proceeding to the extent that O'Neill must be considered the owner of 100 miner's inches of water in the flow of the creek defendant contending that the said decree gives Francis O'Neill absolute title to the 100 miner's inches of water regardless of his needs, while plaintiffs contest his right to more water than necessary for the irrigation of his land. The Board of Control evidently disregarded that decree in determining defendant's rights. It is provided in section 6595, L. O.L., that the Board of Control cannot impair relative priorities to the use of water, among parties to any decree of the courts rendered in causes determined prior to the taking effect of the Water Code of 1909. The rule is that the decree of a court of general jurisdiction is unimpeachable in a collateral proceeding. Section 756, L. O.L. It is conclusive of every fact necesarry to uphold it as to all matters actually determined, or that might have been determined, upon the issues made. White v. Ladd, 41 Or. 324, 68 P. 739, 93 Am.St.Rep. 732. The suit of O'Neill v. Corder et al. was commenced for the purpose of establishing the rights of plaintiff, and to enjoin the defendants from interfering therewith. Defendants were served with summons and appeared by demurrer, which was overruled; and, the defendants having failed to answer, and Corder consenting in writing, a decree was rendered which is conclusive against the defendants therein of the matters decided.

However the decree gives to O'Neill the continuous and exclusive use of 100 miner's inches of water without reference to his needs, and he contends that he owns the title to the water absolutely, diverting it also for use on the lands of his wife, to the evident detriment of the plaintiffs in this proceeding, as the right of the wife's land to the use of said water is not next in priority. The rule is that when a party has a prior right to a certain quantity of water for irrigation, he is entitled to it only to the extent needed for the use for which it is appropriated. Thereafter the next person in right and priority, to the extent of that right, is entitled to the water...