Cookinham v. Lewis

• Decision Date: 07 March 1911
• Citation: 114 P. 88,58 Or. 484
• Parties: COOKINHAM et al. v. LEWIS et al. [d]
• Court: Oregon Supreme Court

114 P. 88

58 Or. 484

COOKINHAM et al. v. LEWIS et al. ^[d]

Supreme Court of Oregon

March 7, 1911

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Proceedings by writ of review by R.S. Cookinham and another against John H. Lewis and others, comprising the Board of Control of the state, and another. From an adverse judgment, defendants appeal. Reversed and remanded, with directions to dismiss writ.

On March 10, 1909, plaintiffs filed with the State Engineer John H. Lewis, an application for a permit to make an appropriation of 370 second feet of the waters of Powder river in Baker and Union counties, for 120 days, making 88,060 acre feet, to be diverted in section 26, township 6 S., range 40 E., W.M., for the purposes of power and domestic use and to irrigate 30,000 acres of land in township 7 S ranges 40 and 42 E., township 8 S., ranges 41, 42, and 43 E and township 9 S., ranges 42 and 43 E., and to construct a storage reservoir to impound the waters of Powder river in Thief Valley with a capacity of 60,000 acre feet, at an estimated cost of $500,000. On March 31, 1909, at 8 a.m they filed a supplemental application for an additional quantity of water for irrigation upon certain lands, some of which were included in the former application. On the same day at 4:30 p.m., O.C. Finkelnburg, trustee, filed an application with the State Engineer for a permit to construct a storage reservoir in Thief Valley for the storage of waters of Powder river for irrigation, the dam therefor to be in section 26, township 6 S., range 40 E., at an estimated cost of $200,000. Thereupon, on April 12, 1909, the State Engineer, being of the opinion that the proposed use in each case would be a menace to the safety and welfare of the public, referred such applications, by letter, to the board of control, with this statement: "The proposed use in each of the following cases are a menace to the safety and welfare of the public. *** Prior to the examination of these applications, and on March 30, 1909, the vacant and unappropriated lands included in the area described in those applications were withdrawn from entry under the public land laws of the United States by the Secretary of the Interior for irrigation by the state under the Carey act, or by the United States under the reclamation act. *** Such withdrawal was made at the request of the State Land Board, by order dated March 23, 1909." On September 11, 1909, after a full hearing, the board of control directed the State Engineer to refuse the applications of the party or parties not securing final contract with the desert land board for the reclamation of said lands; and that he approve the application of the party securing such a contract. Plaintiffs, on December 20, 1909, filed a petition in the circuit court for Marion county, state of Oregon, for a writ of review, reciting in full the facts above mentioned and the writ was duly issued the same day. The return to the writ contains the transcript of the proceeding before the board of control, together with a full transcript of the evidence produced before the board. At the hearing upon the return, the circuit court sustained the writ and directed the dismissal of the proceeding before the board of control, for the reason, that it had no jurisdiction of the proceeding, and defendants appeal therefrom to this court.

Will R. King and John L. Rand (A.M. Crawford, I.H. Van Winkle, and James T. Chinnock, on the brief), for appellants.

C.A. Moore, J.N. Hart (J.H. Nichols, on the brief), for respondents.

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

A writ of review lies only in cases in which the lower court, officer or tribunal has exceeded its jurisdiction, or where it has exercised its judicial functions erroneously and contrary to the course of procedure applicable to the matter before it. Garnsey v. County Court, 33 Or. 201, 54 P. 539, 1089. Therefore, the writ will only bring up the record, upon which the case will be reviewed as to questions of jurisdiction and errors in the proceeding. It will not review questions of fact, and has nothing to do with the evidence. Smith v.

Portland, 25 Or. 297, 301, 35 P. 665; Douglas County Road Co. v. County of Douglas, 6 Or. 299, 303.

The main contention of plaintiffs is that by the terms of sections 45 and 47 of the act of 1909 (Laws 1909, pp. 332, 333; L.O.L. §§ 6624, 6627) known as the "Water Code," the person first filing an application for a water right is entitled to the first right, and that the law is mandatory upon the State Engineer to approve it, unless the proposed use is a menace to the safety and welfare of the public, in which case he must refer it to the board of control, and that there is nothing before him in this case to disclose any such menace. It was upon this ground that the circuit court sustained the writ.

To comprehend the full meaning of those two sections of the Water Code, it is necessary to review the law relating to the subject. To aid in the reclamation of desert public land, the Congress of the United States, by the act of August 18, 1894, known as the "Carey Act" (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U.S.Comp.St.1901, p. 1554], found also in volume 1, L.O.L. p. 65), and amendments of June 11, 1896 (Act June 11, 1896, c. 419, 29 Stat. 434), March 3, 1901 (Act March 3, 1901, c. 853, § 3, 31 Stat. 1188 [U.S.Comp.St.1901, p. 1557]), and March 15, 1910 (Act March 15, 1910, c. 96, 36 Stat. 237), authorized the Secretary of the Interior to contract with certain states to grant and patent to the state such desert land, not exceeding one million acres in each state, as the state may cause to be irrigated, reclaimed and occupied by actual settlers. In 1901 the Legislature of Oregon accepted the conditions of this offer and provided that, upon the application of any person, desiring to reclaim any desert land, the State Land Board should enter into a contract with the Secretary of the Interior therefor, and enter into such contract as may be necessary to cause the reclamation thereof, with provision for procuring water therefor and the manner of procedure. Laws 1901, p. 378; section 3283 et seq., B. & C. Comp. For the purpose of still further aiding in the reclamation of arid public lands, the Legislature, on February 22, 1905 (Laws 1905, p. 401; L.O.L. § 6598), enacted a law for acquiring water for the reclamation of arid lands; created the office of State Engineer, and gave him general supervision of all measurements and records of appropriation of waters of the state, and required him to deliver to the Governor before each session of the Legislature a full report of the work of his office with such recommendations for legislation as he may deem advisable.

The legislative act of February 24, 1909 (Laws 1909, p. 377 L.O.L. § 3860 et seq.), which created the desert land board, of which the State Engineer is a member, again accepted the conditions of the Carey act and made further provision for reclaiming the desert land in this state, and repealed sections 3283-3293, B. & C. Comp., above cited. The act of February 24, 1909, known as the "Water Code" (Laws 1909, p. 319; L.O.L. § 6594 et seq.), declares that water rights can only be acquired as in the act provided; and creates the offices of division superintendents and the board of control, of which the State Engineer is a member. The first 44 sections of the act relate to the manner of settling disputed rights among water users and sections 45 to 47 (L.O.L. §§ 6624, 6626) relate to the manner of acquiring water rights and sections 58 and 59 (L.O.L. §§ 6622, 6623) provide for reservoir permits. Section 45 provides that any person intending to acquire a right to the beneficial use of any waters shall, before commencing the construction of any ditch, make application to the State Engineer for a permit to make the appropriation. By section 46 the application shall, among other things, set forth the nature and amount of the proposed use; if for agricultural purposes it shall give the legal subdivisions of the land and the acreage to be irrigated. Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286. Section 47, among other things, provides "it shall be the duty of the State Engineer to...