Davis v. Chamberlain

• Decision Date: 01 December 1908
• Parties: DAVIS et al. v. CHAMBERLAIN et al.
• Court: Oregon Supreme Court

98 P. 154

51 Or. 304

DAVIS et al. v. CHAMBERLAIN et al.

Supreme Court of Oregon

December 1, 1908

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Suit by Allen Davis and others against H.M. Chamberlain and others to restrain the use of water. From a decree, a part of defendants appealed. Affirmed as modified.

W.W. Calkins, for appellants.

A.E. Reames, for respondents.

EAKIN, J.

Plaintiffs are the owners of five water ditches involved in this suit viz., the Wagner & Thornton ditch, the Beeson & Robison ditch, the Davenport ditch, he Rockfellow ditch, and the Farmers' ditch. The appropriations through these ditches were made at different times and in different amounts. Each plaintiff owns an interest in some one of these ditches, but they are not all interested in the same one, and, there being no controversy between them, they have made common cause against defendants. They take water out of Wagner creek, a tributary of Bear creek, in Jackson county, Ore., claiming by prior appropriation and also by adverse user about 500 inches in all of the waters of said creek. Through two of these, the Davenport and Farmers' ditches, appropriations were made for both mining and irrigation purposes, and through the other three for irrigation only. Plaintiffs allege ownership of the ditches and waters diverted thereby without any allegation or proof as to the lands to which they are appurtenant or upon which they are used, but it is stipulated that whatever rights have been initiated through these ditches are now owned by the plaintiffs in the manner alleged in the complaint, and no question is raised as to the lands to which they are appurtenant. The Wagner & Thornton ditch was constructed in the year 1852; the Beeson & Robison ditch in the spring of 1853; the Davenport ditch, in 1854; the Rockfellow ditch, in 1854; and the Farmers' ditch, in 1861. J.A. McCall, a civil engineer, having measured the flow of plaintiffs' ditches, was called by plaintiffs to prove their capacity. From his testimony it appears that the Wagner & Thornton ditch has a capacity of 45 inches; the Beeson & Robison ditch, 85 inches; the Rockfellow ditch, 20 inches; the Davenport ditch, 50 inches; and the Farmers' ditch, 240 inches--all by miner's measurement, under a 6-inch pressure. At the commencement of the trial, plaintiffs moved the court to require the defendants to elect upon which of their incompatible defenses they will stand, viz., their riparian rights, or the claim by appropriation; but there is no merit in this motion, as defendants make no claim to the water by appropriation. They make two defenses, i.e., as riparian owners and by adverse user. These are not inconsistent defenses. Plaintiffs allege that defendants severally, in the year 1903 diverted water from Wagner creek above the head of plaintiffs' ditches, and threaten to continue doing so, to the irreparable injury of plaintiffs and ask that defendants be enjoined from diverting any water from said creek. Most of the lands upon which the waters of this creek are claimed by both plaintiffs and defendants were patented to their predecessors in interest by the United States government, under the donation land claim law; settlement on many of the claims having been made in the year 1853.

The lands of defendants Harry S. Lynch, Clara E. Lynch, Lilly R. Davis, and L.J. Davis are parts of the donation land claim of Granville Naylor, No. 37, which is above the head of the ditches of plaintiffs, and upon which settlement was made June 1, 1854, and for which a patent was issued May 24, 1866. I take the date of this settlement from the recitals in the certificate of final entry, issued by the local United States land office, as it is evidence of the facts so recited. Willamette Co. v. Gordon, 6 Or. 175.

Defendants contend that, because the lands along the creek were settled in 1853, even those who made the first appropriation were riparian on the creek at the time of their appropriation, and therefore the use of the water must be adjusted according to their riparian rights, and not according to priority of diversion. But where the early settlers on a creek diverted water for irrigation, asserting their right by reason of their priority, they thereby acquired a right against subsequent settlers, and, by reason of having done so, waived their riparian right to water for irrigation. It is said, in Williams v. Altnow (Or.) 95 P. 200, 209: "It is the settled law in this state that an appropriator of water from a stream flowing through his premises has not the right, as riparian proprietor, to the use of the surplus for irrigation, as against subsequent claimants. Low v. Schaffer, 24 Or. 239, 33 P. 678; North Powder Co. v. Coughanour, 34 Or. 9, 54 P. 223; Brown v. Baker, 39 Or. 70, 65 P. 799, 66 P. 193. While the doctrine of prior appropriation and riparian rights are not so antagonistic that they may not exist in the same locality ( Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L.R.A. 889, 108 Am.St.Rep. 647), a settler upon a non-navigable stream has an election either to rely upon his rights as riparian proprietor or to make an appropriation of the water if it is free and subject to appropriation and claim as an appropriator; but he cannot do both."

As to the Rockfellow and Davenport ditches, defendants by their answer deny that Fred Rapp is the owner of the Davenport ditch or water right, and deny the existence of any right by means of said ditch, and by the cross-examination of plaintiffs' witnesses defendants contest that right. From the evidence it appears that the Davenport ditch was constructed in 1854, diverting principally for mining purposes probably 50 inches of water, as that is the capacity of the ditch. Thornton testifies that there was some irrigation by means of the Davenport ditch from that time by Rockfellow, who took the water from that ditch by means of what might be called a lateral, known afterwards as the Rockfellow ditch. Thornton says: "The Rockfellow ditch--that, I suppose, you call part of the Davenport ditch. That ditch--some of the water of the Davenport ditch--was used in the lower end of the Rockfellow ditch. Q. How far back do you know that Rockfellow ditch? A. Well, I know that from about the same time--that is, they were digging the Davenport ditch at the time I landed there in that place, and when the ditch was finished Rockfellows used the water out of it." Thornton arrived at Wagner creek in June, 1854, evidently before the middle of the month. About the year 1881 or 1882 Thornton connected the Rockfellow ditch with the creek lower down and ceased to use the Davenport ditch as his means of diversion. This reduced the amount of water to which the Davenport ditch was entitled by that amount, namely, 20 inches. The remainder of the water of the Davenport ditch--which could not exceed 30 inches--was at one time claimed by Coolidge, and a part thereof used for a time by him for irrigation on his place in section 36, and about 1878 he sold his rights to Anderson for mining purposes, thereby abandoning it for irrigation. Anderson thereafter made no use of it for irrigation and but little use of it for mining. He says that he did not use it more than 8 or 10 years out of the 19 years preceding 1897; that he owned it for 25 years up to the time he sold it to Rapp, which sale was prior to the commencement of this suit. Thus it appears that from about 1878 the Davenport ditch was used exclusively for mining purposes.

The Farmers' ditch was dug originally as a mining ditch by Anderson and others. Some of the owners diverted a small amount of water from it for irrigation; but some years ago--the time does not appear--they all leased their interests to Anderson for a term of 99 years, which was an abandonment of their irrigation rights, except Stearns, an owner therein and predecessor in interest to Purves and wife who reserved his right to irrigate therefrom. The use of these two ditches for mining purposes was confined to the mining season, namely, from the time the water began to rise in the creek in the fall until the water became scarce in the spring. They were constructed only to take the surplus water during that time. Anderson, speaking of the Farmers' ditch, says: "I commenced (mining) just as soon as the rains came in the fall and I...