Gardner v. Wright

• Citation: 49 Or. 609,91 P. 286
• Parties: GARDNER et al. v. WRIGHT. [*]
• Decision Date: 30 July 1907
• Court: Oregon Supreme Court

91 P. 286

49 Or. 609

GARDNER et al. v. WRIGHT. ^[*]

Supreme Court of Oregon

July 30, 1907

Appeal from Circuit Court, Baker County; Robert Eakin, Judge.

Action by Mary S. Gardner and others against George F. Wright. Plaintiffs appeal from the decree, and defendant cross-appeals. Modified.

This is a suit to determine the right to the use of the waters of Washington creek, in Baker county, Ore., brought by Mary S Gardner, Edna V. Stuchell, A.V. Swift, A.B. Swift, and L.L Swift, against George F. Wright. By stipulation it is agreed that A.V. Swift has succeeded to all the interests of the other Swifts named, and that he, with Mary S. Gardner and Edna V. Stuchell, are the sole plaintiffs in interest.

The complaint, in effect, alleges that plaintiffs, under and by virtue of prior appropriation of the waters of Washington creek, as well as by reason of a certain deed executed to their predecessors in interest, are the owners jointly of the right to the use of three-fourths of the waters of the creek named, of which it is alleged that Mary S. Gardner and Edna V. Stuchell are the owners of one-fourth, and A.V. Swift one-half. Defendant denies plaintiffs' right to the use of any of the waters of Washington creek, except the surplus and alleges that he is the owner of the exclusive right to the entire stream for the irrigation of his lands, all of which it is claimed is necessary for the proper irrigation thereof, and has been used continuously for such purpose during the last 40 years, with the full knowledge and consent of plaintiffs and their grantors. Defendant alleged, in support of his title, prior appropriation, riparian ownership, and adverse possession since 1863; but the averment relative to riparian ownership was stricken out on motion of plaintiffs.

The reply denies the affirmative allegations, and, in response to the defenses relied on, pleads an estoppel against defendant by reason of a certain deed with covenants of warranty therein given by H.W. Estes (defendant's grantor) and Frederick Dill to their predecessors in interest, which omitting the signatures and acknowledgment, is as follows: "This indenture made this 9th day of September, A.D.1864, between Harding W. Estes and Frederick Dill of the county of Baker and state of Oregon, parties of the first part, and Oscar L. Gordon and George W. Manville of the same place, parties of the second part: Witnesseth, that the said parties of the first part for and in consideration of the sum of one thousand dollars to the parties of the first part in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, conveyed, and quitclaimed and by these presents do grant, bargain, sell, convey and forever quitclaim unto the said parties of the second part their heirs and assigns forever, all the right, title, interest, and claim of the said parties of the first part in and to a certain ranch or possessory claim to agricultural lands and the improvements thereon lying and being in said county and state and described as follows, to wit: That certain ranch or land claim on Washington creek in Powder River Valley below and adjoining Gray's ranch which has been improved by the parties of the first part and upon which they have resided from the month of June, A.D.1863, to the past summer, and bounded as follows, to wit: Commencing at a stake about three rods south of said creek and about thirty rods in a southwesterly direction from the log house built by said parties of the first part and occupied by them as a residence; thence east along a fence one hundred and sixty rods; thence north along a fence one hundred and sixty rods; thence west along a fence one hundred and sixty rods; thence south along a fence one hundred and sixty rods to the place of beginning; together with the right to the full and free use of the water of said Washington gulch and all privileges connected with the same, the said water having been taken up and appropriated by the parties of the first part, for the use and benefit of said ranch in the month of June, A.D.1862, at the time said ranch was located and claimed. To have and to hold the said premises, together with all and singular the rights, privileges, tenements, appurtenances, and improvements thereunto belonging or in any manner appertaining. And the said parties of the first part hereby covenant with and to the parties of the second part, their heirs and assigns, that they are the lawful possessors of said land or ranch and the sole owners of the improvements thereon and of the water right above mentioned, and that they have a full and perfect right to sell and dispose of the same, and that the title to the same they will forever warrant and defend against all persons whomsoever claiming by, through, or under them, or either of them. In witness whereof the said parties of the first part have hereunto set their hands and seals this the day and year first above written."

By stipulation it was admitted that A.V. Swift is the owner in fee of the S.E. 1/4 of section 2; that Mary S. Gardner and Edna V. Stuchell have succeeded to the interest of J.B. Gardner, deceased, in and to the N.E. 1/4 of section 11; and that George F. Wright is the owner in fee by purchase from H.W. Estes of the lands described in the answer, viz.: W. 1/2 of S.W. 1/4, section 11; E. 1/2 of S.E. 1/4, section 10; N.E. 1/4 of N.E. 1/4, section 15--all the lands so described being in township 9 S., range 39 E., W.M.

Washington creek is a natural stream fed by springs and snow in the mountains west of Baker City, and flows in a northeasterly direction through Washington gulch across defendant's premises and through Gardner and Stuchell's lands onto the Swift farm, where it spreads out and disappears. It varies in quantity from a flow of 10 miner's inches in the low-water season to 150 inches during the early spring freshets. In 1862 Estes and Dill settled upon what is now defendant's farm, and in the following spring took possession of some lands lower down the stream, now constituting the farm of A.V. Swift; the latter farm being the premises referred to in the deed to Gordon and Manville. The first place named is known as the "Estes Farm," and the second as the "Swift Ranch." In the spring of 1863 a ditch was constructed by Estes and Dill tapping Washington creek, through which water was conveyed onto the Estes place for the purpose of irrigation, and on April 25th of the following spring they located a water right for the lower Swift farm by posting a notice thereof on the channels of the stream, which was on that date recorded with the county clerk of that county, as follows: "Washington Gulch. Know all men that the undersigned hereby claims all the water of Washington gulch for the purpose of using the same on his land claim in Powder River Valley. Said ranch joins Gray's ranch on the east. And the water hereby claimed is the natural water of said gulch that flows in its natural channel through said land claim, which is thus claimed for the purpose of preventing the same from being abstracted in its flow at any point above said claim. Frederick Dill."

In February, 1864, the Estes farm was sold to Abner Smith, who resided there until his death, which occurred in the fall of 1865. His family continued to live there, and in 1867 his widow married Estes, one of the former owners of the farm. At that time all the land on Washington creek was unsurveyed public land of the United States. In 1869 Estes filed a homestead on the land, to which the right of possession had been sold to Smith, as stated, and about two years later made final proof thereon, receiving his patent in 1878. After his marriage, Estes continued the cultivation of the crops, which he irrigated with water diverted from Washington creek through the ditches previously constructed for that purpose; and, in order to publicly announce and record his claim thereto, posted a notice at the head of the ditch constructed in 1863, which he caused to be recorded in the county clerk's office, as follows: "Washington Creek. Notice is hereby given that I, Hardin W. Estes, hereby claim 75 inches of the waters of Washington creek for mining, mechanical, and irrigating purposes, the same having been heretofore taken, appropriated, and diverted from said stream by a certain ditch constructed by the undersigned in 1863, tapping said creek at a point about a quarter of a mile above what is known as the 'Washington Ranch' in Baker county, Oregon, and claimed and used by the undersigned since said date. Dated and signed at Washington ranch, Baker county, Oregon, March 19, 1872. Hardin W. Estes." On the same date, and recorded at the same time, another notice of like import was posted farther down the creek by him on his land, claiming an additional 75 inches of water through a ditch tapping the creek on his premises "at a point opposite what is known as Washington ranch house," alleging diversion from that point through a ditch constructed in June, 1866.

In support of their claims, plaintiffs, at the trial, introduced deeds, showing the record evidence of title to their respective interests from the date of the first written instrument executed by Estes and Dill to plaintiffs' predecessors in interest. Witnesses were then called, who testified to the use of the water of the stream for irrigation of plaintiffs' lands in the production of hay grain, vegetables, and some orchard at various times since the year 1884, but not prior to that time, except that M.J. Hindman referred to some irrigation on the Swift place in 1867, but did not state to what extent and for what purpose used, but that hay and grain were raised on the premises during that year. With this exception, no evidence was...