Huston v. Bybee

Decision Date19 December 1888
PartiesHUSTON et al. v. BYBEE.
CourtOregon Supreme Court

Appeal from circuit court, Jackson county.

Action by B.W. Huston and others to enjoin William Bybee from diverting the waters of a certain stream. Judgment for defendant, and plaintiffs appeal.

(Syllabus by the Court.)

An adverse, exclusive, and uninterrupted use and enjoyment by one person, and those under whom he claims, of all the water of a creek, taken therefrom by means of a ditch, and conveyed to certain mining grounds for mining purposes, for 12 years or for any period beyond that of the statute of limitations prescribing the land through which the creek runs of his riparian rights; but where the ditch was constructed by means of which the water was originally appropriated under a license granted by the owner of the land in which he reversed the right to use the water a part of each year for his own purposes, such adverse use by grantees from the original appropriator cannot be established unless it is shown that the use of the water by them has been in hostility to the use of it by the owner of the land under such reservation.

The users of the water, in such case, must show that their use of it was in defiance of any right upon the part of the owner to use it for any purpose, that they totally ignored his right to use it at all, and that he acquiesced therein.

To authorize a person to claim a forfeiture of valuable property rights, on account of the violation of a condition upon which they are granted, he must proceed to enforce it at once. He cannot remain passive for a long time after acts have transpired, upon which others have relied in matters of importance to them, and then insist upon the forfeiture in consequence thereof.

Where a certain stream of water ran across the land of B., which he was accustomed to use for the purposes of irrigation, for watering his stock, and for domestic use, and which was valuable and necessary for such uses; and he was applied to by one S. for permission to dig a ditch across his land in order to conduct the water of the stream to certain mining grounds below, upon which S. was engaged in mining; and B granted the permission, upon the promise of S. that the former should have the exclusive use of the water flowing through the ditch at any point on said lands where he might desire to turn it for irrigating purposes during the spring and summer months, and that S. could not sell or dispose of the ditch or water-right to any one else, but that they would revert and become the property of B.: held, that by a fair construction of the arrangement between B. and S., in view of the circumstances of the transaction, the former was to have the use of the water whenever required for the use of his premises for the purpose of working his mining ground.

Held, further, that S., having subsequently sold his mining ground and interest in the ditch, and having, by mesne conveyances from S., succeeded to the same, and he and his grantors having used the water conveyed through said ditch for the purpose of operating in the said mining ground, with the knowledge and acquiescence of B., that the latter was not entitled to claim a forfeiture of the said ditch and water-right on account of the said sale by S.; that B.'s acquiescence in the sales and transfers of the ditch and water-right must be deemed a waiver of the condition that S. would not sell to them.

Held, also, that the use by H. and his grantors of the ditch and water to operate the mine, although it extended beyond the period of the statute of limitations, would not constitute such an adverse possession against B. as would bar his right to use of the water, under the reservation in the license to S. to construct the ditch, unless H. and his grantors had wholly excluded B. from the exercise of such right during such period; and that evidence of B. having used the ditch and water a portion of each year during the whole time referred to, for irrigating his land, and for the other purposes mentioned, disproved any such exclusive use thereof as suggested, or any use inconsistent with said license and reservation.

Held, too, that B. and H., and those holding under H., had co-existing rights in the ditch and water; that B. had the preference during the season when the condition of his premises where such as to require the use of water for the purposes mentioned, but that he had no right to waste it at any time, or to use it extravagantly or imprudently; that H. had the full and free right to use it at all other times, and that each was required to respect the rights and interests of the other regarding the matter, in every particular.

J.R. Neil, H.K. Hanna, and E. De Peatt, for appellants.

P.P. Prim and H. Kelly, for respondent.

THAYER C.J.

This appeal is from a decree rendered in a suit brought by the appellants against the respondent, to enjoin him from diverting water from what is now known as "Walker Creek," formerly Phillip's creek, in the county of Jackson. The appellants alleged that they were owners and in the possession of certain mining claims which they had been working during the mining seasons since 1876, and that in so doing they had necessarily required and used all the water of said creek. That they and their grantors, about the year 1865, dug and constructed a ditch in said county known as the "Willow Springs Mining Ditch," and thereby appropriated all the water of said creek at a point above the residence of the respondent, and running thence in a northerly direction along the foot-hills above Willow Springs, to what is known as "Hite's Gulch," thence to their said mining ground; and each and every year had, by means of said ditch, conveyed all the water of the creek and said gulch, and the other gulches running into said ditch, to their said mining claims, and used the same for mining purposes thereon, and by so doing had acquired a prior right over respondent to the use and enjoyment of said water. That for more than 12 years appellants and their grantors had been in the adverse, exclusive, and uninterrupted use and enjoyment of all of said water for mining their said claims, with the knowledge of said respondent. That on the 1st day of April, 1887, while appellants were in possession and use of the said water as mentioned, the respondent wrongfully and maliciously diverted it from said ditch, thereby depriving appellants of its use and enjoyment, and still continued to do so, and refused to desist therefrom, to the great and irreparable injury of the appellants.

The respondent denied all the material allegations of the complaint, except as admitted in further and separate answers thereto, and alleged in said further and separate answers (1) That at the time said ditch was constructed, and the water of said creek appropriated and used through the same, and for a long time prior thereto, the respondent was the owner in fee of a large tract of land, consisting of agricultural, meadow, and pasture lands, on which there were valuable improvements, and upon which the respondent reared and kept a great many head of horses, cattle, sheep, and hogs. That the water of said creek flowed through said lands of respondent, near his residence thereon, in a natural channel, at the time the ditch was constructed, and the water appropriated had done so for a long time prior thereto, and was at the time of...

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12 cases
  • KLAMATH IRRIGATION DIST. v. US
    • United States
    • Oregon Supreme Court
    • March 11, 2010
    ...Mattis v. Hosmer, 37 Or. 523, 532, 62 P. 17, 62 P. 632 (1900); Bowman v. Bowman, 35 Or. 279, 283, 57 P. 546 (1899); Huston v. Bybee, 17 Or. 140, 147-48, 20 P. 51 (1888) (all illustrating proposition). The court also used those terms to refer to a claim brought by another appropriator who co......
  • Union Mill & Mining Co. v. Dangberg
    • United States
    • U.S. District Court — District of Nevada
    • May 24, 1897
    ...2 Sawy. 450, Fed. Cas. No. 14,370; The Mining Debris Case, 9 Sawy. 441, 513, 18 F. 753; Winter v. Winter, 8 Nev. 129, 135; Huston v. Bybee, 17 Or. 140, 20 P. 51; Jose v. Trimble, 41 Cal. 536, 542; Lovell v. Frost, 44 Cal. 471; Hayes v. Martin, 45 Cal. 559; Cave v. Crafts, 53 Cal. 135, 138; ......
  • Hall v. Blackman
    • United States
    • Idaho Supreme Court
    • January 31, 1902
    ... ... 443; ... Thomas v. Gounod, 5 Colo. 530; Atchinson v ... Peterson, 20 Wall. 507; Woolman v. Yarringer, 1 ... Mont. 535; Huston's Irrigation Law, p. 64; Santa ... Paula Waterworks v. Peralta, 113 Cal. 39, 45 P. 168; ... Long on Irrigation, p. 50; Kinney on Irrigation, 233, ... 217, 24 P. 645; Grigsby v. Water Co., 40 ... Cal. 396; Union v. Ferris, 2 Saw. 176, 450; Kinney ... on Irrigation, sec. 294; Huston v. Bybee, 17 Or ... 140, 20 P. 51.) "A right to the use and possession of ... the water of a stream may be acquired by prescription only ... when ... ...
  • Ison v. Sturgill
    • United States
    • Oregon Supreme Court
    • June 14, 1910
    ... ... therefor." Almost the same language is used in Wimer ... v. Simmons, 27 Or. 18, 39 P. 11, 50 Am.St.Rep. 685, and ... Huston v. Bybee, 17 Or. 140, 148, 20 P. 51, 56, 2 ... L.R.A. 568. The effect of these cases is that the adverse use ... is not initiated until ... ...
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