Haney v. Neace-Stark Co.

• Decision Date: 17 July 1923
• Citation: 109 Or. 93,216 P. 757
• Parties: HANEY ET AL. v. NEACE-STARK CO. ET AL.
• Court: Oregon Supreme Court

216 P. 757

109 Or. 93

HANEY ET AL. v. NEACE-STARK CO. ET AL.

Supreme Court of Oregon

July 17, 1923

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Suit by Herman C. Haney and another against the Neace-Stark Company and others. Decree for plaintiffs, and defendants appeal. Affirmed.

The plaintiffs in this case are Herman C. Haney and John E Astner. The defendants are Neace-Stark Company, a corporation, state water board of Oregon, Pearcy A. Cupper state engineer, George T. Cochran, member of the state water board, Rhea Luper, assistant state engineer, and Loy M Turner, water master. The plaintiffs filed their complaint in the circuit court of the state of Oregon for Baker county and averred that they were the owners of certain lands situate in Baker county, Or., arid in nature, and susceptible of irrigation, and that such lands, with sufficient water to irrigate the same and for the growing of crops thereon, would produce large crops of hay, grain, vegetables, and other products. The pleadings contain a description of the lands.

It is averred by plaintiffs that on April 19, 1910, the predecessors in interest of plaintiffs filed with the state engineer an application for permission to appropriate 10 cubic feet per second of the water of Powder river and its tributaries; that upon the approval of the application by the engineer their predecessors constructed a dam in the bed of Powder river, installed pumps, and constructed ditches, and thereafter appropriated and diverted the waters of Powder river and its tributaries to the extent of 4.37 cubic feet per second thereof, and applied the water to beneficial uses in the irrigation of growing crops upon their lands hereinbefore referred to; that some of the lands were first irrigated in the year 1910, and that each year thereafter additional acreage was brought into cultivation and irrigated, until by the end of the irrigating season of the year 1913 all of the lands of plaintiffs, described in the complaint had been reduced to a state of cultivation, and the waters so appropriated had been beneficially applied thereto that the state water board, upon the showing made by the plaintiffs, confirmed their appropriation of water, and issued a certificate of water right to them, as successors in interest of the original appropriators, with the date of priority of April 19, 1910, to the extent of 4.37 cubic feet per second.

The complaint further alleged that since the year 1910 plaintiffs and their predecessors in interest had maintained in Powder river, at or near the original location thereof, a retaining dam and pumps driven by both steam and electric power, and that they had dug ditches, leading from their pumps to their land, for the distribution of water appropriated, and that the equipment for the appropriation and distribution of water upon their lands had been continuously maintained since 1910, except when interfered with by the defendants herein. It then avers that the predecessors in interest of Neace-Stark Company, defendant, had, for years, maintained dams in Powder river, Baldock slough, and other small sloughs, above the point where plaintiffs' predecessors in interest diverted the waters of Powder river; that such dams caused the waters of Powder river and the sloughs, in the freshet season, to back up and overflow certain lands described in the complaint belonging to the defendant Neace-Stark Company.

Plaintiffs then concede defendants' right to the use of such waters for the irrigation of their premises mentioned, but not for other purposes. It is further averred that for more than 40 years prior to 1913 the predecessors in interest of the defendants irrigated and grew large crops of wild hay upon their land, but that, when the hay was ready to cut, they removed the dams and drained the flooded lands by permitting the impounded waters to flow down the channel of Powder river, past the point where plaintiffs' dams and pumps are now situate.

Plaintiffs aver that the flowing of the captured water down stream augmented the supply of water in Powder river, which was a part of the appropriation made by their predecessors in interest at the time of the initiation of their rights. They then aver that George T. Cochran, Rhea Luper, and Loy M. Turner, water master, denied the right to plaintiffs' use of such water, and allowed the defendant company to use the same in irrigating other lands, and that the defendant company and its predecessors in interest have wrongfully diverted and used the overflow waters and run-off waters, and have taken and pumped the same upon lands brought into cultivation since the year 1910, without leave from plaintiffs and over their objections.

For a further cause of suit, the plaintiffs allege that one Joseph Borton was entitled to sufficient of the waters of Powder river for the irrigation of a certain tract of land consisting of 80 acres described in plaintiffs' pleading, with a date of priority of 1901; that his right was adjudicated by the state water board of Oregon, and confirmed by the circuit court of Oregon for Baker county. Plaintiffs allege that an attempt was made by William Pollman, predecessor in interest of the Neace-Stark Company, and Joseph Borton, to sever from the lands of Borton the water right appurtenant thereto and to transfer it to other lands, and pleaded the order of the state water board reading as follows:

"And it appearing that the water right in question can no longer be beneficially or economically used on the lands to which it is now appurtenant, and that the proposed transfer can be made without detriment to existing rights, it is ordered, that said application be, and the same is hereby, granted, and that the water right allowed under the Powder river decree to Joseph Borton, with a date of priority of 1901, for 80 acres [here follows description], be transferred and become appurtenant without loss of priority to the following lands to wit, 39 acres [here follows description], and 40 acres [[description]."

Plaintiffs aver that the transfer was without notice to plaintiffs, and injurious to them, and that the Neace-Stark Company and its predecessors in interest have not only changed the place of use of the water so adjudicated to Joseph Borton, but that they have likewise changed the place of diversion.

Plaintiffs pray for a decree that they have prior right to defendant Neace-Stark Company to the use of the waters of Powder river, Baldock slough, and their tributaries, to supply their demands and appropriations of water for the irrigation of their lands described in the complaint, to the extent of 4.37 second feet thereof, as of the 19th day of April, 1910, except as to the priority conceded in their complaint, to the defendant, and for further relief by decreeing that defendant company be not permitted to use the water impounded for overflowing their lands, for any other purpose than such overflow, or in any other manner than the use that was made of the waters on April 19, 1910, except subject to the prior claims and rights thereto of plaintiffs, and for a decree setting aside the order of the state water board allowing the transfer of the place of the use of waters originally adjudicated to Joseph Borton, and for an order and decree enjoining the defendant company from operating its pumping plant for irrigation until the prior rights of plaintiffs have been supplied, and for an order denying to the state water board, the state engineer, the defendants George T. Cochran, Rhea Luper, or Loy M. Turner, the right to interfere with the pumping operations of plaintiffs.

The defendant Neace-Stark Company, answering, describes and alleges its ownership of certain lands situate in Baker county, Or. It alleges that such lands are dry and arid in character, and require irrigation to make the same productive, but that, when irrigated, such lands are very productive, and yield large crops of hay, grain, and other produce, and that the water and water rights owned by defendant are necessary for the proper irrigation of defendant's lands.

The answer avers, among other things:

"That in the year 1911 the predecessors is interest of the defendant Neace-Stark Company constructed 10 dams in Powder river, Baldock slough, and Middle slough, and impounded the waters of Powder river and its tributaries, including said sloughs, for the irrigation of certain lands belonging to said defendant and hereinafter more particularly described that the predecessors in interest of said defendant Neace-Stark Company constructed a dam in said Powder river near the southwest corner of the southeast quarter of the southwest quarter of section 11, in township 8 south, range 39 east of W. M., for the purpose of holding the water flowing in Powder river and catching and holding the water impounded by the dams constructed in said Powder river and said sloughs as aforesaid, and erected and constructed on the banks of said Powder river above said storage dam an electrical pumping plant and pipe lines leading therefrom to certain ditches used to convey water for the irrigation of the lands of said defendant; * * * that in the year 1911 the predecessors in interest of * * * Neace-Stark Company began the irrigation of said lands, and ever since has and still continues to irrigate the same * * * by releasing from time to time the water stored in the 10 dams in Powder river, Baldock slough and Middle slough. * * * and permitting the same to run down said sloughs and Powder river to said storage dam hereinbefore described, and then by pumping the same through the pipe lines and into the ditches * * * and using the same for irrigation of said lands of defendant; * * * that upon application of the predecessors in...