Harvey v. Campbell

• Decision Date: 10 April 1923
• Parties: HARVEY ET AL. v. CAMPBELL ET AL.
• Court: Oregon Supreme Court

214 P. 348

107 Or. 373

HARVEY ET AL. v. CAMPBELL ET AL.

Supreme Court of Oregon

April 10, 1923

In Banc.

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

On rehearing. Reversed.

For former opinion, see 209 P. 107.

Harris J., and McBride, C.J., dissenting.

Irving Rand and Wm. H. Packwood, both of Baker (Packwood & Packwood, of Baker, on the brief), for appellants.

James H. Nichols, of Baker (Nichols & Hallock, of Baker, on the brief), for respondents.

BURNETT J.

This suit was heard and determined by this court and a decree rendered June 27, 1922, affirming the decision of the circuit court dismissing the suit. 209 P. 107. Afterwards a rehearing was granted, and the cause comes on now to be determined anew.

It substantially appears by the complaint that the defendant Sparta Irrigation Company is a corporation of this state organized for the purpose of holding and operating what is known as the Sparta ditch, conveying water from West Eagle creek to the lands of the plaintiffs and other lands belonging to the stockholders of that company, and that the rights to the water carried in the ditch were held severally by the plaintiff Mary C. Harvey and other shareholders in that concern. On and prior to October 8, 1917, the defendant Campbell was the owner of 160 acres of land in section 25 township 8 south, of range 43 east, Willamette meridian, and other lands totaling 760 acres, and at that time was also a stockholder in the corporation and the owner of a right to take and divert a quantity of water far in excess of 80 inches measured under six-inch pressure, and at all times since has been and now is the owner of the 760-acre tract, with the exception of the 160 acres first mentioned and of the right to take water from the ditch, from which he has in fact taken and diverted water much greater in quantity than the 80 inches mentioned.

It is further alleged in the complaint and admitted by the answers that on October 8, 1917, the defendant Campbell and his wife made, executed, and delivered to the plaintiff Mary C. Harvey a warranty deed, which, omitting from the covenants allusions to certain mortgages about which there is no dispute, reads as follows:

"This indenture witnesseth that we, Floyd J. Campbell and Minnie D. Campbell, his wife, of Portland, Or., for the consideration of the sum of five and no/100 dollars to us in hand paid, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do bargain, sell and convey, unto Mary C. Harvey, all the following described premises, to wit: The west half (W. 1/2) of the southeast quarter (S. E. 1/4) and the east half (E. 1/2) of the southwest quarter (S. W. 1/4) of section 25 in township 8 south, range 43 east, W. M., in Baker county, Or., containing 160 acres of land, and also 80 inches of water measured under 6-inch pressure of that certain water right taken out of what is known as the Sparta ditch in Baker county, Or., as such water right is defined and measured by the state water board of control of the state of Oregon, in its findings and adjudication in the matter of the adjudication of the rights of various claimants to the waters of Powder river and its tributaries; also a pro rata interest in 250 inches of water allowed to the Sparta Irrigation Company under its appropriation through said ditch in the discretion of the water master to cover seepage and loss of water in transit from the point of origin to the point of delivery.

"To have and to hold the said premises, with their appurtenances, unto the said Mary C. Harvey, her heirs and assigns, forever, and we, the said Floyd J. Campbell and Minnie D. Campbell, his wife, grantors herein, do hereby covenant to and with the said Mary C. Harvey that we are the owners in fee simple of said premises; that said premises are free and clear of all incumbrances save and except; * * * and, subject to the above incumbrances, the said grantors herein will warrant and defend the title to the property herein conveyed from all lawful claims whatsoever.

"In witness whereof we have hereunto set our hands and seals this 8th day of October, 1917.

Floyd J. Campbell. [ Seal.]

"Minnie D. Campbell. [ Seal.]

"Signed in the presence of:

"Mary E. Day.

"O. S. Hubbell."

Further, the primary pleading avers in substance that the lands included in that conveyance are dry and arid and require artificial irrigation to make the same productive; that the 80 inches of water measured under 6-inch pressure, conveyed by the deed, was and is appurtenant to the land and so adjudicated by the findings of fact and order of determination of the state water board of the state of Oregon filed in the office of the county clerk of Baker county, Or., April 1, 1916, and by the decree of the circuit court of Baker county, Or., rendered March 18, 1918, which findings, order of determination, and decree were made in the matter of the adjudication of the rights of various claimants to the use of the waters of Powder river and its tributaries, of which said Powder river West Eagle creek was and is an affluent.

The plaintiff Harvey alleges herself to be a stockholder in the Sparta Irrigation Company, defendant, ever since October 8, 1917, holding 53 1/3 shares of the capital stock thereof; that the plaintiff Wheeler is her lessee of the 160-acre tract mentioned, owning one-half of the crops raised thereon; that since the conveyance to Mrs. Harvey the plaintiffs have improved the lands, prepared them for irrigation, constructed ditches, and have the tract in cultivation in certain crops named; and that at all times during the irrigation season of the year 1920 there has been flowing in the Sparta ditch at the point where the water has been diverted for the use of the plaintiffs upon the lands of the plaintiff Harvey and for the use of the defendant Campbell a quantity of water much greater than 80 inches, which was turned out by the irrigation company from the ditch for the use of plaintiffs upon their lands and for the use of Campbell upon his lands, a quantity at all times more than sufficient to afford the plaintiffs the full and uninterrupted use of 80 inches thereof, which amount is requisite and necessary for the proper irrigation of their land. It is charged in the complaint that, notwithstanding the terms and provisions of the deed, and without right or authority so to do, in violation of plaintiffs' rights, the defendant Campbell during the irrigation season of 1920 has diverted from the waters turned out from the Sparta ditch for the use of plaintiffs all except about 35 inches thereof, and has deprived the plaintiffs of the use of more water than that, which has been permitted and allowed by the defendant corporation, of which Campbell is president and in charge, and that they threaten and intend to do so in the future, unless restrained by the court. The complaint charges, in substance, that on account of the acts of the defendants the plaintiffs have been deprived of the use of the water and have been unable to irrigate their premises properly, and that the crops growing thereon were to a large extent dried out and destroyed, all on account of the wrongful acts of the defendants.

The prayer is, in substance, that the plaintiff Mary C. Harvey be decreed to be the owner of the right to divert and use from the waters of the said Sparta ditch where the same enters upon her premises said 80 inches of water, and that the defendants be restrained from disturbing or in any way interfering with her use of the full amount of 80 inches of water.

A demurrer to the complaint by both defendants was overruled. In practically identical answers the defendants admit the corporate character of the defendant company, the ownership by Campbell of 760 acres, and the right to divert from the Sparta ditch a quantity of water in excess of 80 inches, that Campbell and his wife made, executed, and delivered to the plaintiff Mary C. Harvey the deed mentioned, and that the lands are dry and arid, requiring artificial irrigation to make them productive. The answers admit the plaintiff Harvey's ownership of 53 1/3 shares of capital stock of said corporation, the tenancy of Wheeler, the cultivation and improvement of the premises and their preparation for irrigation, and that more than 80 inches of water have been turned out of the Sparta ditch for the use and benefit of the plaintiff Harvey upon her lands and for the use of the defendant Campbell upon his lands.

Affirmatively defending, the answers show that the corporation shortly after its organization in 1913 acquired by purchase what are known as the Sparta and Hoagum ditches in Baker county, Or., and the water rights in connection therewith, and certain real property not involved in this suit; that the right to divert water through those ditches was initiated about the year 1870; that the capital stock of the company is divided into 500 shares of the par value of $45 each, amounting to $22,500, all of which stock has been subscribed, and of which the plaintiff Mrs. Harvey at present owns 53 1/3 shares and the defendant Campbell owns 197 2/3 shares; that the stockholders of the corporation are the owners in the aggregate of 1,500 acres of land susceptible of irrigation by means of the Sparta ditch, of which land the plaintiff Mrs. Harvey is now, and ever since October 8, 1917, has been, the owner of 160 acres as described in her complaint. All of the 1,500 acres mentioned are in their natural state arid and require artificial irrigation.

The answers go on to set up certain proceedings begun May 27 1909, before the state water board, seeking an adjudication of the rights of claimants to the waters of Powder river and its tributaries, including the west fork of...