Curtis v. La Grande Hydraulic Water Co.

• Decision Date: 08 December 1890
• Citation: 25 P. 378,20 Or. 34
• Parties: CURTIS v. LA GRANDE HYDRAULIC WATER CO.
• Court: Oregon Supreme Court

25 P. 378

20 Or. 34

CURTIS v. LA GRANDE HYDRAULIC WATER CO.

Supreme Court of Oregon

December 8, 1890

On rehearing. For former opinion, see 23 P. 808.

(Syllabus by the Court.)

Facts examined and held, under the circumstances of the particular case, the plaintiff should not be permitted to set up her riparian interest so as to defeat the defendant's right to a certain portion of the water of Mill creek, where the diversion was made under a claim of title, and the defendant believed, and had reason to believe, that the claim was well founded, and the plaintiff stood by without asserting or making known her claim, while the defendant was expending large sums of money, and making extensive improvements under an honest and reasonable belief that it had the right to make such diversion, and without which its expenditures would prove a total loss. Modifying 23 P. 808.

STRAHAN, C.J.

This case was heretofore before this court, and a conclusion was reached reversing the decree of the court below, and enjoining the defendant from making the diversion of the water complained of 23 P. 808. On the petition of the respondent a rehearing was ordered, and the case has been again fully argued at this term. There is one question that was overlooked, or at least the attention of the court was not sufficiently drawn to it, and that is the passive acquiescence of the plaintiff, or those under whom she claims, in the removal of the dam from the point on Mill creek where the La Grande Water Company had established it in about the year 1865 to a point about 1,000 feet higher up said stream, and the expenditures made by plaintiff in consequence of such removal. These are some of the findings of the referee and of the court below on those subjects "(17) That the said defendant, since the said last diversion referred to, constructed a system of water-works in connection therewith in the said town of La Grande, Oregon and have expended the sum of $8,000 in the construction of the same; (18) that the construction of said waterworks was public, and plaintiff knew of the same, but that she never objected to the construction thereof; (19) that the diversion of the nine square inches of water from Mill creek by the defendant and its grantor, the La Grande Water Company, as hereinbefore stated, was for the period of 22 years, and was open, notorious, uninterrupted, practically continuous, by the acquiescence of the plaintiff and her grantors, and under a claim of right, from the month of July, 1865, to the time the defendant built the new dam, in 1887; (20) that the plaintiff purchased her land described in her complaint subject to the right of the La Grande Water Company and its successors to divert said water out of said Mill creek as aforesaid and with notice of the same at the time of her purchase, and that she is estopped to deny the same or allege to the contrary." The court, in disposing of the referee's report, among others, made the following findings: "No. 9. The court finds as follows: That in the month of July, 1865, after the organization of said company, the said Green Arnold gave to the said La Grande Water Company the right to enter and go upon the said lands hereinafter described, and to divert water from Mill creek for the purpose of supplying the town of La Grande with water for hire, or otherwise, and also gave it the exclusive right to erect and maintain all necessary works for the purpose of conducting said waters so diverted to the town of La Grande Oregon, the same to be distributed as said company saw fit that immediately thereafter the said La Grande Water Company in pursuance of said grant, did enter upon said land of said Green Arnold aforesaid, at a point about sixty rods above the plaintiff's premises, on said Mill creek, and diverted water therefrom by means of a square box about 12 feet long and 3X3 inches at one end and 5X6 inches at the other, and also constructed...