Gates v. Settlers' Mill., Canal & Reservoir Co.
| Decision Date | 04 September 1907 |
| Citation | 91 P. 856,19 Okla. 83,1907 OK 77 |
| Parties | GATES v. SETTLERS' MILLING, CANAL & RESERVOIR CO. et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The right to the use of water from a public stream for irrigation purposes depends upon the construction of appropriate ditches, the conducting of water through such ditches to the place of intended application, and the application of such water to beneficial uses, all within a reasonable time; and he has the best right who is first in time.
Where the question of priority of right to divert water from a running stream for the purposes of irrigation, and the question as to whether either of the claimants had used reasonable diligence in prosecuting his work and in making application to beneficial uses of the water, are controverted questions of fact, dependent upon the weight of contradictory testimony and the credibility of witnesses, this court will not disturb the finding of the trial court, if there is competent evidence reasonably tending to support the finding and judgment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.]
Where there are conflicting claims for priority in the use of water rights for irrigation purposes, the court, in an application for injunction, may make equitable distribution of the supply of water according to the priority of the claimants and the quantity each has by his labor and diligence acquired the right to divert.
Where a question depends upon the weight of the evidence for its determination, and the evidence is conflicting, or of a vague and uncertain character, the appellate court will not review such question.
Error from District Court, Woodward County; before Justice John L Pancoast.
Action by C. W. Gates against the Settlers' Milling, Canal & Reservoir Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Stanley & Stanley, D. P. Marum, and Stanley, Vermilion & Evans, for plaintiff in error.
F. C Price and Charles Swindall, for defendants in error.
This action involves the question of priority of right to divert water from the Cimarron river for irrigation purposes. Oklahoma has not so far been credited to the arid belt, and agriculture has been successfully conducted by the aid of nature's supply of moisture; but in some localities, in the higher altitudes pertaining to the extreme western counties of the territory, irrigation upon a small scale has been profitably resorted to, and an increasing public interest is being developed in not only the expediency, but the necessity, for extensive irrigation of agricultural and meadow lands in the fertile valleys of western Oklahoma. In the year 1897 our Legislature passed an irrigation act. 1 Wilson's Rev. & Ann. St. 1903, p. 814, c. 44, §§ 3282-3304. This statute was repealed in 1905, and a more comprehensive law substituted, which is still in force. Laws 1905, p. 274, c. 21, art. 1. It is conceded that neither of the parties to this litigation proceeded under either of these statutes; but both, as we understand the case, base their claims upon the general rule of law applicable to such cases. Yet, if any rights were acquired and became vested under the statute of 1897, the statutory provisions must control as to such rights.
It appears from the record that the plaintiff in error, Gates commenced his suit in the district court of Woodward county against the Settlers' Milling, Canal & Reservoir Company on November 6, 1903, to enjoin the defendants from diverting water from the Cimarron river, on the ground that such diversion was a material interference with a prior right acquired by him to the use of the water for irrigation purposes. Gates bases his claim to priority upon an appropriation made by J. H. Williamson, through a ditch constructed in the early part of the year 1901, which was about three miles in length and took the water from the river about two miles below the point where the defendant's ditch connected with the river. Williamson sold his land and ditch and his water rights to Gates in July, 1902. A portion of the flow of water in the Cimarron river was actually appropriated to beneficial uses for agricultural purposes during the years 1901 and 1902, The irrigating ditch used by the defendants, which is made the subject-matter of this controversy, was commenced about the year 1902, and has its headgate above the point where the plaintiff procures his water supply. But it is contended that this ditch is but a continuation and change of work begun in 1896 and continuously carried on until the time of the bringing of this suit. The Settlers' Milling, Canal & Reservoir Company was incorporated under the laws of the territory of Oklahoma on June 4, 1895, for the purpose, as shown by its articles of incorporation, of "constructing a ditch to convey water to lands to be used for milling purposes, or for the purpose of irrigation of farming lands." The stockholders and officers of this company were the farmers and landowners whose lands were to be benefited by the irrigation project, and the capital stock paid in consisted almost entirely of the work done by the individual stockholders in constructing the ditch, dam, flumes, and other necessary work in repairing the same. The year the company was incorporated it did some work in repairing and strengthening a dam in the Cimarron river which had been partially constructed and used by Mr. Mophet, one of the stockholders and the president of the company. About 150 loads of stone were hauled and dumped into the river bed to strengthen the old dam. The purpose of the company was to divert the water from this point and make use of the old Mophet ditch, which it seems the corporation succeeded to by common consent. In the spring of 1896 100 loads more of stone were put in to support the old dam. Later on in the year a break occurred in the dam, and piling was driven in and supported by more stone put in for that purpose. The dam was completed across the river, 225 feet in length. Owing to frequent rises in the river that year, heavy timbers and sod were used to strengthen and repair the work, which was completed at an estimated cost of $2,000. This improvement was a distance of 12 miles from a railway station, in a sparsely settled country, and 40 miles from where some of the timbers and piling had to be obtained and hauled. The company also caused a survey to be made from the old Mophet headgate, along the old Mophet ditch, in an easterly course a short distance, and thence continuing east to Horse creek, where it was necessary to construct a flume to carry the water across this creek. The old ditch was cleaned out, and a new portion constructed and completed, a distance of one mile, from the old headgate to Horse creek. In the spring of 1897 work was begun upon the flume, which was constructed by driving three rows of cedar piling into the ground from 8 to 11 feet, upon which was built of lumber an aqueduct 100 feet long and 16 inches deep to carry the water over the creek. The ditch was extended another half mile beyond this flume, and a full head of water turned in and conducted through the flume and into the laterals, carrying the water to the farms of T. C. Mophet and G. C. Mophet, and by them applied to about 40 acres of land and crops. The company also in 1897 applied to the Secretary of the Interior for reservoir and right of way privileges over the public lands, which application was granted and confirmed. It also gave notice, under the provisions of the statute of 1897, of...
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