Cole v. Logan

• Decision Date: 28 June 1893
• Citation: 33 P. 568,24 Or. 304
• Parties: COLE et al. v. LOGAN.
• Court: Oregon Supreme Court

33 P. 568

24 Or. 304

COLE et al. v. LOGAN.

Supreme Court of Oregon

June 28, 1893

Appeal from circuit court, Malheur county; James A. Fee, Judge.

Action by J.L. Cole and Benjamin F. Kendall against William L. Logan to enjoin defendant from diverting the waters of a certain creek. From the decree rendered, both parties appeal. Modified.

The other facts fully appear in the following statement by MOORE J.:

This is a suit to enjoin the defendant from diverting the waters of Willow creek. The material facts are that Willow creek rises in a spur of the Blue mountains, flows in a southeasterly direction, in a well-defined channel, through the lands of the parties hereto, and empties into the Malheur river in Malheur county, Or. That the defendant has diverted the waters thereof by a ditch on the north side of the creek, and the plaintiffs by a ditch on the south side, and that their lands are arid, and nearly valueless without water, but by irrigation they have become very productive, and yield large crops of hay and fruit. That defendant settled upon his tract in July, 1870, built a dam in the channel of the creek, dug a ditch, and conducted the water to a garden of about two acres, cultivated by him in 1871. That on January 27, 1872 the said tract having in the mean time been surveyed and platted as the E. 1/2 of the N.W. 1/4 and the W. 1/2 of the N.E. 1/4 of section 24, in township 15 S. of range 42 E. of the Willamette meridian, he filed a pre-emption declaratory statement thereon, which on November 3, 1874, he commuted into a homestead, made his final proof July 5, 1880, and on December 10, 1880, obtained the United States patent therefor. That the plaintiff J.L. Cole, in October, 1871 made a homestead filing upon the S. 1/2 of the S.E. 1/4, the N.W. 1/4 of the S.E. 1/4, and the N.E. 1/4 of the S.W. 1/4 of section 14, in said town and range, and on November 30, 1878 obtained a patent from the United States therefor. That about December 10, 1872, the said Cole and one C. Eaton commenced to build a dam in the channel of said creek at a point about three miles above defendant's dam, which they completed about January 10, 1873, and about three months thereafter they had completed about one mile of the ditch from the dam towards their lands. That Eaton assigned his interest in the ditch to one James Cole, who filed a pre-emption claim upon the S.W. 1/4 of the N.W. 1/4 and the N.W. 1/4 of the S.W. 1/4 of section 14, in said town and range, and on October 30, 1882, obtained the United States patent therefor, which tract of land and interest in the ditch he conveyed to the plaintiff B.F. Kendall, who is now the owner thereof. That in October, 1871, the defendant surveyed a line for a new ditch from his homestead to a point on the creek about one mile below that where plaintiffs afterwards built their dam, and on January, 1872, filed with the county clerk of the proper county a notice of his claim to appropriate 250 inches of the water of said creek, and commenced to dig the ditch on the line of the survey, but, encountering quicksand after completing it to a point within 6 feet of the creek, he was obliged to abandon it, and in 1873 surveyed another line to a point about 30 yards above plaintiffs' dam, and commenced to dig a ditch on the new line, and, after working thereon each year, and expending about $2,000, he completed it in 1883. That the plaintiffs assisted him in building a new dam, moved their tap to this point, and, as they testify, agreed that the defendant might have the surplus water of the creek. That on March 6, 1883, the defendant acquired the legal title from one W.R. Kelly and wife to the N.E. 1/4 of the S.E. 1/4 of said section 14, and moved to a house thereon, about one-half mile from his former home. That the defendant also claimed a possessory right to the S.W. 1/4 of section 13, in said town and range, upon a preemption filing thereon, but that the title thereto was also claimed by the Dalles Military Wagon Road Company. That from 1872 to 1891 the El Dorado Ditch Company had diverted about 1,000 inches of water from Burnt river, and discharged it into Willow creek about 12 miles above defendant's homestead; and that in 1877 the defendant had permitted the Willow Creek Irrigating Company to enlarge the ditch first made by him, and convey the water of Willow creek across his homestead, to irrigate lands lying below his claim. That a small stream, known as "Becker Creek," flowed across the Kelly tract, and another small stream, known as "Pole Creek," flowed across the plaintiff Cole's land, and each emptied into Willow creek at places above the defendant's point of diversion on his homestead. That Kelly and the defendant used the waters of Becker creek in irrigating the Kelly place, and that Cole had used the waters of Pole creek. That the defendant, prior to 1877, had cultivated about 12 acres of his homestead, but that after the Willow Creek Irrigating Ditch Company had enlarged his ditch the cultivated land on the homestead had nearly grown up with willows. That the plaintiffs and defendant used the same dam, and diverted the waters of the creek at opposite points, from 1884 to 1889, when, the dam becoming filled with debris from the mines above, plaintiffs moved their tap further up the stream, and on May 19, 1891, the defendant moved his tap above theirs, and diverted the water for five hours, whereupon the plaintiffs again moved their ditch above his, diverted all the water of the creek, and commenced this suit, in which they allege a prior appropriation of the whole amount of water, consisting of about 400 inches, and a diversion thereof by the defendant, who denies the allegations of the complaint, except the diversion of 150 inches, and alleges that he was the prior appropriator of the said waters. After the issues were completed, the testimony was taken before a referee, and at the hearing the court found that defendant was the prior appropriator of 20 inches of water, and decreed that he was entitled to divert that quantity under a 6-inch pressure, and that plaintiffs were entitled to divert 300 inches under a like pressure, and that neither party should recover costs, from which decree the defendant appeals; while the plaintiffs appeal from so much thereof as decrees the prior right of defendant to 20 inches of water, and enjoins them from interfering therewith, and also from the portion thereof relating to costs.

R.G. Wheeler and J.L. Rand, for appellant.

M.L. Olmsted, for respondents.

MOORE J., (after stating the facts.)

The evidence conclusively shows that the defendant was a prior appropriator of the waters of Willow creek. He made his settlement upon an unsurveyed tract of land with the intention of acquiring the title thereto from the government of the United States, and had diverted and appropriated the water of said creek 2 1/2 years prior to the building of plaintiffs' dam; and when the defendant made his proof and obtained his patent his title related back to the time of his settlement, ( Faull v. Cooke, 19 Or. 455, 26 P 662; Larsen v. Navigation Co., 19 Or. 240, 23 P. 974; Sturr v. Beck, 10 S.Ct. 350,) and hence it follows that at the time plaintiffs made their appropriation of the waters of Willow creek the defendant's rights as a prior appropriator had attached, and he was entitled to the quantity of water he had diverted and appropriated for the purpose of irrigating his homestead, and that the plaintiffs made their diversion and appropriation subject thereto, ( Kaler v. Campbell, 13 Or. 596, 11 P. 301.) The evidence shows that on Willow creek there was a local custom which required the claimant to file for record with the county clerk a notice of his claim to appropriate the water of a natural stream, and that in pursuance of such custom the defendant, in January, 1872, filed with the county clerk of Baker county a notice of his claim to appropriate 250 inches of the water of said creek upon the line of his survey made in October, 1871. If, instead of being obliged to abandon his ditch on this line in 1873, he had completed it, so as to have been able to divert the water thereby, and...