Hindman v. Rizor

• Decision Date: 24 June 1891
• Citation: 27 P. 13,21 Or. 112
• Parties: HINDMAN v. RIZOR.
• Court: Oregon Supreme Court

27 P. 13

21 Or. 112

HINDMAN v. RIZOR.

Supreme Court of Oregon

June 24, 1891

Appeal from circuit court, Baker county; JAMES A. FEE, Judge.

Suit in equity to enjoin and restrain the defendant, George Rizor from diverting the waters of Alder creek, a natural water-course which runs through the lands of both parties to this suit.

J.L Rand, for appellant.

M.L. Olmsted, for respondent.

BEAN J.

This is a suit to enjoin the defendant from diverting the waters of Alder creek, a natural water-course, which runs through the lands of both plaintiff and defendant. Both parties claim by prior appropriation. The facts are these: In 1863, the lands through which Alder creek flows were unsurveyed and unoccupied government land, and the waters thereof were free and unappropriated. In the spring of that year, J.W Cleaver and one Peters settled upon the land now owned by plaintiff, and, for the purpose of rendering it productive and useful for agricultural and horticultural purposes entered upon the unoccupied government land a short distance above the land occupied by them, and diverted a portion of the waters of Alder creek, and by means of a ditch conveyed the same onto their land for irrigating purposes. Cleaver and Peters continued to occupy and cultivate the land, using the waters appropriated by them, until 1865, when they sold their possessory rights and improvements. From the time of the sale by them until 1881, the land improvements and water-right passed into the possession and occupancy of several different persons, each selling his rights thereto, and delivering possession to the purchaser, but no complete chain of title by deed of conveyance to either the land, ditch, or water-right appears in the record. In 1881, the property having in this manner passed into the possession of one Rowley, he filed thereon under the pre-emption law, and, after perfecting his title conveyed the land, with its appurtenances, on September 15, 1882, by deed to plaintiff. In February, 1877, defendant settled upon the land now owned by him, above the land of plaintiff, as a homestead, and, having received his patent, claims the right to the use of 50 inches of the waters of the creek, as against plaintiff, by an appropriation made by him in 1877. He claims that because the title of the several parties occupying the land from Cleaver down to Rowley was acquired by the purchase of possessory rights merely and not by deed, the water-right was lost and abandoned; that a valid transfer of a ditch and water-right can only be made by deed, and a verbal sale operates ipso facto as an abandonment; and that consequently his appropriation, made in 1877, was prior in time and paramount in right to that of plaintiff, which, in any view, could only date from Rowley's settlement in 1881. This is the only question necessary for us to consider. If plaintiff has connected herself by a proper title with the rights acquired by Cleaver and Peters to the waters of Alder creek, her rights are unquestionably superior to those of the defendant; for whoever purchases land from the United States after the whole or some part of the water of a natural water-course, running through such land, has been appropriated by some one else, takes subject to the rights acquired by such prior appropriator. Kaler v. Campbell, 13 Or. 596, 11 P. 301; Lux v. Haggin, 69 Cal. 255, 10 P. 674. If, however, her rights only date from the settlement of Rowley in 1881, the appropriation made by defendant in 1877 gives him a superior right to the quantity actually appropriated.

It is undisputed, from the evidence, that the land owned by the plaintiff has been improved, cultivated, and farmed each year, by the occupants and owners thereof, from the time of Cleaver's settlement, in 1863, to the commencement of this suit, and the waters appropriated by Cleaver and Peters has been used through the ditch constructed by them for the necessary irrigation of the land each year. In fact, without the use of this water the land would be of comparatively little value for agricultural or horticultural purposes, and the possessory rights thereto would not have sold for the several amounts disclosed by the record. It is dry and arid land, and can only be successfully or profitably cultivated by means of proper irrigation. It had been so improved that in 1881 Rowley paid to the occupant the sum of $1,500 for his possessory rights. Each owner and occupant of the land has used and claimed to own the water-right acquired by the appropriation of Cleaver and Peters, and has delivered the possession thereof, with the other improvements on the land, to his successor in interest, as an incident to the principal thing sold. A settler upon the public land has a right thereto as against every person except the government, and, when such settlement is made with the view of obtaining title, such right is a valuable property right, which the courts will protect and enforce. Kitcherside v. Myers, 10 Or. 21; Jackson v. Jackson, 17 Or. 110, 19 P. 847. The right of such a settler being property, he may sell and transfer it so as to pass his right thereto, and, except as against the government, vest the rightful possession in the purchaser. This right being a possessory one, merely, and not lying in grant, does not require a formal deed of conveyance, in order to effect a sale or transfer thereof. The settler does not acquire a title to the land by the act of settlement, but only the right to one upon his complying with the provisions of the law governing the sale and disposition of the public lands. His occupation and improvement, with a view to pre-emption, do not confer a vested right in the lands so occupied, but do confer a preference over others in the purchase of such lands by the bona fide settler, which will enable him to protect his possession against other individuals. He has no interest in the land which he can convey, but only in the possessory right thereto; and any mode of sale or conveyance which effects a transfer of the possession from the vendor to the vendee is sufficient to pass his possessory title.

When such a settler appropriates water for the necessary irrigation of the land occupied by him, it becomes as much a part of...