Curtis v. La Grande Water Co.

• Decision Date: 26 March 1890
• Citation: 20 Or. 34,23 P. 808
• Parties: CURTIS v. LA GRANDE WATER CO.
• Court: Oregon Supreme Court

23 P. 808

20 Or. 34

CURTIS v. LA GRANDE WATER CO.

Supreme Court of Oregon

March 26, 1890

Appeal from circuit court, Union county; L.B. ISON, Judge.

(Syllabus by the Court.)

The doctrine of prior appropriation, under the act of congress of 1866, applies to the public lands of the United States.

. To acquire a right by prescription in the lands of another upon the presumption of a grant, the possession must be adverse continuous, uninterrupted, and by the acquiescence of the owner of the land over which the easement is claimed. If its inception is permissive, or under a license from the owner it cannot avail to work an ouster.

A license creates no interest in land. It is founded on personal confidence, and is not assignable, and its continuance depends on the will of the party giving it, and is revocable, unless the license is executed under such circumstances as would authorize the interference of equity to prevent fraud.

To allow one to revoke a license when it was given to influence the conduct of another, and cause him to make large investments, would operate as a fraud, and warrant the interference of equity, to prevent it, under the doctrine of equity estoppel.

By building a dam, laying the pipes, and making a diversion of the water, the licensee, by its acts and the consent of the licensor, fixed the point of diversion and the place on the land where the license was to be exercised; and it cannot be exercised at any other place.

In such case, at that point and place, the license is irrevocable so long as the dam and pipes remain for the purpose for which they were constructed, but, if abandoned, there can be no right to divert the water of the stream at any other place without the assent of all the parties in interest.

Stayter & Son and C.H. Carly, for appellant.

Williams, Ach & Wood, for respondent.

LORD, J.

This is a suit to restrain the diversion of water from a natural water-course on the land of the plaintiff. The defense is threefold: (1) Prior appropriation; (2) prescription; and (3) estoppel in pais. In substance, the facts are that the defendant constructed a dam across Mill creek upon lands owned by Green Arnold, and occupied the same, with his consent and authority, for the purpose of diverting water from said creek, which was effected by means of a pipe of a certain size inserted in the dam, and conveyed to the town of La Grande for the use of its inhabitants; that in June, 1887 the defendant constructed a new dam across said creek, some 1,000 feet above the old dam, upon lands owned by D. Chaplin and removed the pipe which had been formerly used and laid upon the lands of Arnold as a diverting pipe of the old dam, and inserted it in the new dam, and used and occupied all the lands necessary for that purpose, with the consent and authority of Chaplin and Arnold; that in the year 1871, after such consent was given, and the pipe laid, and the land occupied for the purposes stated, Arnold sold a certain described portion of his land, through which said creek ran, to one McComas, and McComas in 1876 sold the same to the plaintiff; but this portion of the land constituted no part of that upon which said dam had been constructed and pipe laid. It will be seen, then, that, long before the plaintiff acquired any title to a portion of the land through which said creek flowed, she purchased it subject to whatever rights the defendant had acquired in the premises by virtue of the consent and authority of the grantor, Arnold, and the construction of the dam, laying of the pipes, etc., in pursuance thereof, to divert the water for the uses specified. Assuming that the license granted by Arnold, and the investment made by the defendant for its enjoyment, operated as an estoppel in pais, the contention of the plaintiff is that when the defendant removed the dam and pipe from the land of Arnold, and constructed another dam, and laid other or the same pipe on the land of Chaplin, the effect was to revoke such license, and to revive the rights of the plaintiff to have the stream flow through her land without interruption or perceptible diminution; that neither Chaplin nor Arnold, nor both, could authorize the change of location without the consent of the plaintiff, who is a party in interest; and that, when it was so done without her consent, it was an interference with her rights which equity will restrain by injunction. To avoid the effect of this contention, the defendant interposes (1) the defense of prior appropriation of the waters of the creek under the act of congress of July 26, 1866, (14 St.U.S. 253,) 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 courts, the possessors and owners of such vested rights shall be maintained and protected in the same," etc.

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 lands, 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. The facts disclosed by this record show that the diversion took place, not from a stream upon and running through government lands, but from a stream at a point upon and running through the lands of Green Arnold, a part of which now belongs to the plaintiff, and through which a portion of that stream naturally runs, and that the permission to construct the dam, and lay the pipes by means whereof the waters of the creek were diverted from flowing, as was their wont, through it, was given by Arnold, and their possession and occupation for the purposes specified taken and used in pursuance of it. In Kaler v. Campbell, 13 Or. 596 11 P. 301, both parties diverted the water at or near the same point, which was off their own lands, and at the time of the diversion and appropriation...