Hough v. Porter

• Decision Date: 19 May 1908
• Citation: 95 P. 732,51 Or. 318
• Parties: HOUGH et al. v. PORTER et al.
• Court: Oregon Supreme Court

95 P. 732

51 Or. 318

HOUGH et al. v. PORTER et al.

Supreme Court of Oregon

May 19, 1908

Appeal from Circuit Court, Lake County; Henry L. Benson, Judge.

Action by Annie C. Hough and others against S.A.D. Porter and others. From a decree for complainants, certain of the defendants appeal. Affirmed in part, and continued.

The facts appear from the following statement by KING, C.:

This suit was instituted on April 14, 1900, by Marion Conley and Annie C. Hough against Stephen A.D. Porter, to restrain him from interfering with the flow of the waters of Silver creek in Lake county, Or., to plaintiffs' premises. On the 8th day of October of the same year, by permission of the court an amended complaint was filed, in which Annie C. Hough appears as the sole plaintiff, with Stephen A.D. Porter as the only defendant, averring, in effect, that plaintiff and her grantors, for more than 15 years prior thereto, were the owners of certain arid land there described, riparian to the stream named, which for more than 20 years has required the use of 500 inches of the waters of Silver creek for the proper irrigation thereof, without which plaintiff's land would become worthless, etc.; that in the year 1895, Porter wrongfully constructed, and has ever since maintained, and threatens to continue, a dam and head gate in the channel of Silver creek above her premises in such a manner as to interfere with the flow thereof to her farm, thereby depriving her of the use of the water necessary for the irrigation thereof, as to which plaintiff avers that she has 280 acres of land adapted chiefly to the growing of grass and requiring the amount of water specified for the proper irrigation thereof, without which the lands would become worthless. These averments were followed by the usual prayer for equitable relief. Defendant answered, specifically denying such allegations as were inconsistent with the affirmative matter in the answer, which affirmative averments are, in effect, as follows: That the cause of suit did not accrue within 10 years before its commencement; that Porter is the owner in fee of certain lands described, followed by the usual allegations as to the irrigation season--the lands being arid, requiring irrigation, as well as riparian on the stream--claiming his diversion as prior appropriator from March 3, 1883, and application of the water to a beneficial use to the extent of 100 inches under a six-inch pressure and that in April, 1895, this point of diversion was changed to a more convenient point about 200 yards below his former dam, from which his diversion was thereafter continued giving the dimensions of the ditch, etc., and its carrying capacity fixed at 100 inches, all of which it is maintained has been constantly used since March, 1883, in the proper irrigation of his lands, and without which his lands would become worthless, etc. This is followed by a prayer to the effect that: (1) Plaintiffs' suit be dismissed, and defendant go hence unharmed; (2) that the preliminary injunction issued be dissolved; and (3) for such other and general relief as may seem meet and equitable.

An amended reply having placed the cause at issue, it was referred to the official reporter as referee to take and report the testimony, who did so and certified it to the court; and the court then took the cause under advisement. After due consideration, the court, on October 23, 1901 after hearing the evidence and argument of counsel upon the testimony taken, and after being duly advised, and finding it impracticable to settle and make a complete determination of the matters in controversy between the plaintiff and defendant, involving the waters of Silver creek and tributaries, without the presence of other parties before the court, and it appearing that the rights of numerous other parties were involved in the litigation, ordered that all the persons so interested, naming them, be brought in by the plaintiff and made parties to the suit; that they appear and plead on or before March 1, 1902; and that the clerk furnish the sheriff with a duly certified copy of the order for service, to be served by him, as such officer, within 30 days upon the persons designated. The order directed the parties appearing pursuant thereto to plead either as plaintiffs, or defendants, as their respective interests might appear, and that all appearing as defendants should answer to the complaint and interplead as to their co-defendants, or any of them.

Pursuant to the court's order, Annie C. Hough thereupon asked permission to amend her amended complaint, which was granted, and on May 20th, following, filed an amended complaint, to which was added, as coplaintiffs, the names of Mary J. Kittredge, Marion Conley, W.H. Hayes, J.M. Hayes, John Hayes, A.C. Geyer, and W.H. McCall; and as defendants, S.A.D. Porter, C.D. Porter, administrator, Daisy Porter, widow, and W.F. Porter, E.A. Porter and Carl D. Porter, minor heirs of S.A.D. Porter by Daisy Porter, guardian, P.G. Chrisman, John C. Porter, and James C. Porter, his guardian, F.M. Chrisman, B.F. Lane, Jennie Lane, C.C. Jackson, Occidental Land & Improvement Company, a corporation, and Chewaucan Land & Cattle Company, a corporation, its grantee, P.W. Jones, C.E. McKune, Mary C. Brown, and E.D. Lutz. On May 20, 1902, the plaintiffs caused each of the defendants named to be served with a summons, etc., in practically the same form and manner as in the filing of an original suit. The amended complaint last named, omitting formal parts, is as follows:

"That plaintiff, Annie C. Hough, and her grantors have been for more than 17 years last past, and she is now, the owner in fee simple of the S. 1/2 of the S. 1/2 of section 2, the N 1/2 of the N.E. 1/4, and the N.E. 1/4 of the N.W. 1/4 of section 11, and the S.W. 1/4 of the S.W. 1/4 of section 1. in township 28 S., range 14 E., in Lake county, Or., containing 320 acres. That there is, and ever since the memory of man there has been, a natural stream of water, known as Silver creek, with well-defined bed and banks, flowing a perpetual stream of water. That said Silver creek flows from and over lands of defendant S.A.D. Porter, through and over said lands of plaintiff Hough, and that all her said land is riparian to said stream. That in the year 1876 plaintiff Hough's grantors diverted and appropriated, and ever since and until the year 1895 have used of the waters of said Silver creek in irrigating those portions of said described lands not naturally irrigated by said stream, 280 inches of water, measured under a six-inch pressure, by means of dams and ditches, and by such use of said water raised large and valuable crops of grasses, which were cut and cured for hay. That at the time of said appropriation all the lands on said Silver creek were public lands, belonging to the government of the United States. That plaintiff Mary J. Kittredge is the owner of section 36, in township 27 S., range 14 E., containing 640 acres, in Lake county, Or., and in possession thereof by purchase from the state of Oregon as school lands, having paid one-third of the purchase price and having received a certificate of purchase from said state therefor, which is now in full force and effect; and that Silver creek, after flowing over lands of defendant S.A.D. Porter, flows over all the said lands of plaintiff Kittredge, and all her said land is riparian to said stream. That plaintiff W.H. Hayes is the owner and in possession of the N.E. 1/4 of the N.W. 1/4, and lot 1 of section 30, and the S.E. 1/4 of the S.W. 1/4, and lots 3 and 4, section 19, in township 27 S., range 15 E., in Lake county, Or., containing 151.95 acres. That plaintiff John Hayes is the owner and in possession of the S.E. 1/4 of the N.W. 1/4 of the S.W. 1/4 of the N.E. 1/4, and the N. 1/2 of the S.E. 1/4, section 30, township 27 S., range 15 E., in Lake county, Or., containing 160 acres. That said Silver creek, after flowing over lands of the defendant S.A.D. Porter, flows over all of said land of said several plaintiffs Hayes, and all their said land is riparian to said stream. That plaintiff A.G. Geyer is the owner in fee simple of the E. 1/2 of the S.W. 1/4 and lot 4, section 31, township 27 S., range 15 E., in Lake county, Or., containing 105.66 acres, and that said Silver creek, after flowing over lands of defendant S.A.D Porter, flows over all said land of plaintiff Geyer, and all said land is riparian to said stream. That plaintiff W.H. McCall is the owner in fee simple of the E. 1/2 of the E. 1/2 of section 3, township 28 S., range 14 E., in Lake county, Or., containing 160.04 acres, and that said Silver creek, after flowing over land of defendant S.A.D. Porter, flows over all of said lands of plaintiff McCall, and all his said land is riparian to said stream. That plaintiff Marion Conley and his predecessors in interest, in the year 187__, settled upon and since then by patent from the United States government acquired title to, and he now is the owner in fee simple of, the W. 1/2 of section 12, township 28 S., range 14 E., in Lake county, Or., containing 320 acres, and during all said times have been in possession of said land. That in the year 1876 plaintiff Conley diverted and appropriated from land of the United States, and ever since and until the year 1895 has used of the waters of said Silver creek, in irrigating his said land, 320 inches of water, measured under six-inch pressure, diverted and applied by means of dams and ditches, and by such use of said water raised large and valuable crops of grass and grain. That at the time of said appropriation all lands on said Silver creek were public lands belonging to the government of the United States. That since the year 1895, by reason of the acts of the defendant S.A.D....