Dry Gulch Ditch Co. v. Hutton

• Decision Date: 26 October 1942
• Citation: 133 P.2d 601,170 Or. 656
• Parties: DRY GULCH DITCH CO. ET AL. <I>v.</I> HUTTON ET AL.
• Court: Oregon Supreme Court

170 Or. 656

133 P.2d 601

DRY GULCH DITCH CO. ET AL.

v. HUTTON ET AL.

Supreme Court of Oregon.

Argued at Pendleton October 26, 1942.

Reversed January 19, 1943.

Rehearing denied April 6, 1943.

Waters and water courses

1. Evidence failed to establish that plaintiffs, or their predecessors in interest, "waived" any rights which they might otherwise claim to waters of creek and its tributaries by agreeing to entry of a decree ratifying an exchange of rights between an appropriator holding rights prior to plaintiffs or their predecessors and an appropriator holding rights junior to plaintiffs or their predecessors.

Waters and water courses

2. A subsequent appropriator may assert right to take waters of stream from which prior appropriation has been made and give prior appropriator in return therefor other water from a different source, but of like quantity and quality delivered at such a place that prior appropriator can make full use thereof without being injured in any way.

Waters and water courses

3. The appropriation of water to a beneficial use is founded upon rule of necessity, which, when satisfied, becomes measure of the right, whereupon subsequent appropriators may use the surplus or that to which prior appropriator is entitled, when not necessary to prior appropriator's use.

Waters and water courses

4. An owner of a water right by prior appropriation cannot change his point of diversion if such a change will injuriously affect other users on the stream, nor can he sell it separately from the land either to change the point of diversion, to make a new or different use of it to injury of other users, or to secure same priority.

Waters and water courses

5. Where right of defendants' predecessor in interest to divert water of creek and its tributaries was junior to right of plaintiffs' predecessor in interest at time defendants' predecessor entered into an exchange of rights with an appropriator holding rights prior to plaintiffs' predecessor, rights of defendants' predecessor remained subordinate to priority of plaintiffs' predecessor after the exchange.

Adverse possession

6. The elements of "title by prescription" are open, visible and continuous use under a claim of right, adverse to and with knowledge of owner.

Waters and water courses

7. Evidence failed to establish use of waters of creek by defendants adverse to plaintiffs who were prior appropriators for a sufficient length of time to give defendants title thereto by prescription.

Estoppel

8. Even if plaintiffs who were prior appropriators of waters of a creek and its tributaries knew that defendants' predecessors in interest were expending large sums of money in construction of reservoir and feeder ditches to make use of waters of a tributary pursuant to an exchange agreement with a holder of rights prior to plaintiffs which required defendants' predecessor to return water in like amount and quality from reservoirs of defendants' predecessor, plaintiffs were not "estopped" from claiming prior right to water of creek or water in like amount and quality from reservoirs of defendants' predecessor.

Waters and water courses

9. The rights of prior appropriators from a stream cannot be impaired by subsequent appropriations of water from its tributaries.

Waters and water courses

10. The water taken into an artificial structure and reduced to possession is "private property" during period of possession, but when possession of actual water has been relinquished or lost, by overflow or discharge after use, property in it ceases.

Waters and water courses

11. The substitution of impounded water in same quantity and same quality for water normally flowing in natural stream does not constitute a "trespass" or infringement upon or restriction of rights of lower appropriators, as regards issue of title by prescription.

Waters and water courses

12. In order that title to waters may be acquired by adverse user, it is necessary that during the entire statutory period there shall have been an infringement upon another's right to such an extent that such other would have had a cause of action against claimant.

                  See 27 R.C.L. 1269
                  31 C.J.S., Estoppel, § 94
                

Before KELLY, Chief Justice, and ROSSMAN, LUSK, BRAND and RAND, Associate Justices.

Appeal from Circuit Court, Baker County.

ROBERT M. DUNCAN, Judge.

Suit by Dry Gulch Ditch Company, the Waterbury-Allen Ditch Company, and others, constituting the stockholders of such companies, against Orin Hutton and others, owners of the ditch known as the Hogum Ditch, Charles E. Stricklin, State Engineer, and Rufus Bunch, Water Master, in their official capacities, to enjoin defendants from diverting the water from West Eagle Creek, or to require the defendants to supply for plaintiffs use an amount of impounded water from Eagle and Looking Glass lakes equal in quantity to normal flow of West Eagle Creek. From a decree of dismissal, the plaintiffs appeal.

REVERSED. REHEARING DENIED

George T. Cochran, of La Grande (Cochran & Eberhard, of La Grande, and W.H. Strayer, of Baker, on the brief), for appellants.

Allan A. Smith, of Portland, and Blaine Hallock, of Baker (Hallock, Donald & Banta, of Baker, and Laing, Gray & Smith, of Portland, on the brief), for respondents.

KELLY, J.

Plaintiffs are corporations, namely, the Dry Gulch Ditch Company and the Waterbury-Allen Ditch Company, and their stockholders. Defendants, Orin Hutton, Fred A. Phillips, Charles F. Duby, Wayne Phillips and Joseph Jackson constitute the partnership, which is the owner of Hogum Ditch. The State Engineer and the Water Master are also defendants, but are not active contestants herein, although both of them filed answers in the trial court. For convenience, the members of the partnership, owners of the Hogum Ditch, will be termed the defendants.

Involved in this record are three natural water courses, namely, Eagle Creek, West Eagle Creek and Goose Creek. There are four lakes, namely, Traverse, Echo, Eagle and Looking Glass lakes, and five artificial ditches, likewise involved. The ditches are called Hogum Ditch, the feeder ditch, the Sparta Ditch, the Dry Gulch Ditch and the Waterbury Ditch. Glendenning Ditch or creek, a part of which is used as a part of the Hogum Ditch, is mentioned and reference is also made to Balm Creek.

There are three separate and distinct areas which have been served with the water from these natural streams or water courses just mentioned. These respective areas for convenience will be referred to as plaintiffs' lands, defendants' lands and the Sparta lands respectively.

Eagle Creek, sometimes referred to as Main Eagle Creek, rises near the northeast corner of township 6, south range 43 east and flows in a southwesterly direction until its confluence with West Eagle Creek near the northwest corner of section 28 in said township 6, south range 43 east. From that point Main Eagle or Eagle Creek flows in a southeasterly direction emptying into Powder River near the northwest quarter of the northeast quarter of section 35, township 9 south range 45 east.

West Eagle Creek is a tributary of Eagle Creek and rises near the northern boundary line of section 5, township 6 south range 43 east and flows in a southerly direction to its confluence with Eagle Creek as above stated.

Goose Creek has its source in the northern part of township 7, south range 43 east. Goose Creek flows in a southerly direction and empties into Powder River near the southern boundary line of section 32, township 8 south range 43 east. By means of a dividing box, defendants distribute the water from Goose Creek to their lands which are located in the southwesterly part of township 8 south range 43 east.

Hogum Ditch taps West Eagle Creek near the southwest corner of section 9, township 6, south range 43 east and runs southerly about eleven miles emptying its waters into Goose Creek.

The feeder ditch is owned by the defendants and taps Eagle Creek, or Main Eagle Creek, near the southwest corner of the southwest quarter of the northwest quarter of section 15, township 6, south range 43 east, and furnishes water by means of a spillway to West Eagle Creek above the head gate of the Sparta Ditch which head gate is about two miles southerly from the head gate of the Hogum Ditch.

The Sparta Ditch has its head gate as just indicated, and when in operation, ran southerly to Sparta and the Sparta lands located near the center of township 8, south range 44 east.

The Dry Gulch Ditch taps Eagle Creek near the southeast quarter of the northwest quarter of section 17 in township 8 south range 45 east, runs southwesterly, connects with the Waterbury Ditch and in that way supplies plaintiffs' lands with water. Plaintiffs' lands are nearly all located in township 9, south range 45 east, a comparatively small portion being located in the eastern part of township 9 south range 43 east.

Traverse and Echo lakes are located at the head waters of West Eagle Creek and Eagle and Looking Glass lakes are located at the head waters of Eagle Creek. These four lakes just named were converted by the owners of the Hogum Ditch into reservoirs for the storage of water. The water from Traverse and Echo lakes, when released, flow into West Eagle Creek; and those of Eagle and Looking Glass lakes, when released, flow into Eagle Creek.

Herewith is a rough draft of the premises with the four lakes omitted and the Glendenning Creek not designated. As stated, these lakes are northerly of the premises shown on the plat and are at the head waters of West Eagle and Eagle creeks.

Eagle Creek is a natural stream which drains the east and southeast slopes of a high range of mountains and known as the Eagle Creek or Wallowa Mountains. As stated, at its head it has two main forks, known as the west fork of West Eagle Creek and the main fork or Eagle Creek. From its head, it flows through a long, narrow canyon for some 25 or 30 miles before reaching Eagle Valley at the...