Dalton v. Kelsey

• Decision Date: 14 March 1911
• Citation: 114 P. 464,58 Or. 244
• Parties: DALTON v. KELSEY.
• Court: Oregon Supreme Court

114 P. 464

58 Or. 244

DALTON v. KELSEY.

Supreme Court of Oregon

March 14, 1911

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by James Dalton against L.S. Kelsey.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

This is an action at law to recover damages caused by an alleged diversion of irrigating water from a ditch owned in common by plaintiff, defendant, and others, by which unlawful diversion plaintiff claims that his crops for the years 1903, 19041905, and 1908 were destroyed or injured.There is a separate cause of action for each year.The complaint alleges, in substance, that plaintiff is the owner of certain land therein described, which is totally unproductive without artificial irrigation, but that by the aid of water is capable of producing large and valuable crops of alfalfa wheat, and other grain; that defendant is the owner of certain land situated west of plaintiff's land; that on or about the ______ day of 189_, plaintiff and defendant entered into an oral agreement, whereby it was agreed that plaintiff should have the right to construct and use a certain ditch from a point at or near the south line of section 6 on defendant's lands through and across the land to and upon plaintiff's land for the purpose of conveying to the land of the latter the waters of a certain natural water course, known as Warm Springs branch, together with the waters then flowing thereto from what is known as the Hutchinson slough and North Powder river.It was further agreed that defendant should have the use of the ditch only to the extent of conveying therein, to his own land, his certain portion of water flowing to said point from North Powder river, and to use all the waters of the ditch only at such times as plaintiff was not using or requiring their use that such use of the water by defendant was to be for irrigating his pasture land along the course of the ditch and not otherwise; that defendant would not divert any water flowing through the ditch, except as hereinabove alleged; that he would at all times allow plaintiff's waters to flow uninterruptedly in the ditch through defendant's lands to and upon plaintiff's lands; that defendant would not at any time interfere therewith nor dam plaintiff's waters flowing therein; and that defendant would not use the waters when plaintiff was using or requiring their use, excepting as hereinabove alleged; that thereafter and prior to the _______ day of _______, 1900, in pursuance of the oral agreement and in conformity therewith, plaintiff constructed the ditch described, and conveyed water through the same to his lands; and that defendant had the use thereof as agreed, the ditch being called the "Dalton ditch."Thereafter, on the _______ day of _______, 190_, an agreement in writing was made and entered into by plaintiff and defendant for the purpose, among other things, of defining certain rights to be thereby granted to other persons to certain enlargements of the ditch to be thereafter made.It is further alleged that up to the time of this agreement the ditch as constructed and used, under and in pursuance of the oral agreement, was known as a three-foot ditch, and that by the written agreement it was acceded that P.L. Smith, Charles Dougherty, and L. Dougherty, as Dougherty Bros., parties to the agreement, should enlarge the ditch and make the same a five-foot ditch, and to have the enlargement completed on or before the 1st day of May, 1901.It was further provided that, if the ditch was so enlarged according to the agreement, P.L. Smith should have a one-fourth interest therein, and the Dougherty Bros. should have a one-fourth interest in the ditch, and that plaintiff should have a one-half interest therein.It was also covenanted that defendant should have the right to irrigate from this ditch his pasture land along the ditch, provided that he would use the water only when it was not being used or required for irrigation by plaintiff or P.L. Smith or the Dougherty Bros., and that defendant should have the right to convey his own water from other ditches through the Dalton ditch and to use the same to irrigate his pasture land, the water contemplated in the written agreement being defendant's portion of the water flowing to the ditch from North Powder river; that in all other respects, excepting as hereinabove stated with reference to the written agreement, the respective rights, duties, and obligations of plaintiff and defendant relative to the Dalton ditch and use thereof, and the terms and conditions of the oral agreement have at all times herein mentioned, since the date of the oral agreement, remained unchanged.The enlargement of the ditches provided in the written contract was fully performed according to the terms thereof, and all covenants and conditions on plaintiff's part have been fully kept and performed.At all times herein mentioned the ditch was the only source or means whereby plaintiff could procure water for irrigating his lands, and it carried and conveyed abundant and sufficient water for irrigating plaintiff's lands, together with the water which defendant was entitled to use under the agreements.

Defendant answered, admitting the execution of the written agreement and the title of plaintiff to the land described in the complaint, and denying every other allegation.For a further and separate answer defendant alleged that the written agreement was a full and complete final settlement and adjudication of all the rights and interests of each party to the agreement of all water rights, ditches, and ditch rights mentioned in plaintiff's complaint; that by the terms thereof all prior agreements were merged and ceased to exist; that the written agreement was intended to and did take the place of all prior agreements; and that any use that defendant made of any of the waters or ditches mentioned in the complaint was made on his own land and in accordance with the terms of the written agreement.For a second separate defense defendant alleged that in a suit pending in the circuit court for the state of Oregon, for Baker county, in which J.D. McPhee, P.L. Smith, and James Dalton were plaintiffs, he, James Dalton, plaintiff in this suit, and L.S. Kelsey, defendant herein, was defendant therein, and in which the court had jurisdiction of the parties and of the subject, findings of fact were made and a decree tendered therein of date on or about May 2, 1906, which decree became and is now final, and by which the rights of this defendant and of James Dalton were ascertained, adjudged, and decreed as to what is known as the Kelsey-Wilson ditch and the water rights thereof, and that by the decree Kelsey, the defendant herein, was decreed to be the owner of a first, prior, and exclusive right to the full amount of the ditch to the extent of four feet in width and to its full capacity thereof, and, among other things, it was decreed and determined that what is known as the "Dalton box" should be kept and maintained in its then position, without let or hindrance, and this defendant pleads such decree, and the findings of fact therein, as a defense to plaintiff's complaint and the acts therein alleged.

The reply put in issue the new matter in the answer.Plaintiff had judgment, and defendant appeals.

Charles A. Johns and Thomas H. Crawford, for appellant.

Gustav Anderson(John L. Rand, on the brief), for respondent.

McBRIDE, J.(after stating the facts as above).

It is claimed that the complaint does not state facts sufficient to constitute a cause of action, because it does not show that plaintiff was the appropriator of any water or had any right to divert water from the ditch.If this were an action between persons claiming the same water by prior appropriation, there would be merit in the objection, but here plaintiff claims the right to use the Kelsey-Dalton ditch by virtue of an agreement with defendant, and if he could procure the water, as he alleges that he could, his source of title was no concern of defendant so long as he did not assume the right to take that which defendant had appropriated.The right of defendant to use the ditch to the extent of his appropriation is conceded.The gist of this action is that defendant has exceeded the extent of that appropriation and unlawfully appropriated other water, the right to use which he had by express agreement conceded to plaintiff.

It is also objected that the first, second, and third causes of action are barred by the statute of limitations, and in our opinion this is well taken.This is essentially an action for trespass on the case, and not on contract.It is true that plaintiff's title rests in contract.Whatever the original understanding between the parties may have been, it was finally settled and fixed by the written agreement of October, 1900.It is a document executed and acknowledged with all the formalities of a conveyance of real property and recites that its purpose is "to forevermore settle and establish the respective rights of said parties" in and to the water and ditches therein mentioned.Its very object was to make certain, clear, and permanent the oral agreements and understandings theretofore existing between the parties, and they were merged therein.There is no covenant on the part of Kelsey to abstain from doing or to do any act with reference to Dalton's share in the ditch or the water running therein.Each party mutually grants to the other certain rights and...