Hutchinson v. Stricklin

• Decision Date: 19 December 1933
• Citation: 146 Or. 285,28 P.2d 225
• Parties: HUTCHINSON v. STRICKLIN, State Engineer et al.
• Court: Oregon Supreme Court

28 P.2d 225

146 Or. 285

HUTCHINSON v. STRICKLIN, State Engineer et al.

Supreme Court of Oregon

December 19, 1933

In Banc.

Appeal from Circuit Court, Baker County; W. W. Wood, Judge.

Suit by Charles E. Hutchinson, in his own behalf and in behalf of all others similarly situated, against Charles E. Stricklin State Engineer, and Gerald Peterson. Decree for plaintiff and defendant last named appeals.

Reversed and rendered.

The defendant Gerald Peterson appeals from a decree restraining the defendants from interfering with the North Powder Milling & Mercantile Company, in making available to others certain waters of the North Powder river and its tributaries, awarded to said company with a date of relative priority of 1870.

The cause was tried upon an agreed statement of facts supplemented by testimony. The stipulation discloses, in substance, the official character of the state engineer; that the questions submitted are of common interest to many persons; the corporate character of the North Powder Milling & Mercantile Company; the ownership of the lands contiguous to the North Powder river and its tributaries, situate in both Baker and Union counties, and the necessity for the irrigation thereof. Following these general provisions, it is agreed that on May 1, 1916, August 16, 1917, and May 31 1924, the circuit court for Union county, in adjudicating the relative rights to the use of the waters of the North Powder river and its tributaries, made and entered decrees adjudicating the waters of said stream and its tributaries under and by virtue of which the said waters are so handled and administered that by said decrees the North Powder Milling & Mercantile Company was awarded a right to the use of the waters of the North Powder river and its tributaries to the extent of 25 cubic feet per second, with a date of relative priority of 1870, for continuous use during each and every year, except during the months of July and August, the diversion thereof from said North Powder river to be accomplished through the company's millrace for delivery to its said mill (describing the land at a certain point in Union county, Or.), for the development of power in and about said mill, and for no other purpose. The decrees also awarded certain rights to the use of such waters, with dates of relative priority to plaintiff and others similarly situated. The lands of plaintiff, and others similarly situated, for irrigation purposes were decreed various dates of priority from 1862, and various later dates prior to 1928, for approximately 18,000 acres. These lands are all above the diversion point at the head of the millrace of the North Powder Milling & Mercantile Company; that said mill is situated at a point on said millrace slightly above the confluence of the North Powder river with Powder river; that all the waters diverted from North Powder river into the millrace and brought down to the mill under said 1870 priority can only be distributed through the tailrace of the company into North Powder river, and in that situation it cannot be beneficially or otherwise employed by plaintiff or others similarly situated, in whose behalf he brings this proceeding and whom we will hereafter include in mentioning plaintiff, without mentioning them, and it can be employed only by defendant Gerald Peterson, as set forth in the stipulation; that no diversions are made from the North Powder river below the point of diversion of Gerald Peterson's ditch, as described in his water certificate that during some years the irrigation season on the North Powder river opens as early as March and often continues until and into November; that the North Powder Milling & Mercantile Company has used the waters of the North Powder river, to which it is entitled for power purposes in the mill during all or portions of many months of each year, excepting July and August, and especially during the months of March, April, May, June, September, October, and November; that a record of such use has been kept by the above milling company, the same being divided into three parts, namely, power for flour milling purposes, power for feed grinding purposes, and power for grain elevating purposes; that the power for such purposes from and including the year 1921, to and including the year 1930, was used during each year in every month thereof, as hereinafter set out, namely: (Here follows the flour milling record for ten years, showing the days on which the water for power was used.) It is agreed that the figures show a fair average of the entire use of the milling company of waters of the North Powder river in operating its mill since 1870; that in so operating, said North Powder Milling & Mercantile Company never used less than 3.09 cubic feet per second of the waters of the North Powder river for power purposes, to which it is entitled; that the milling company, in using said waters, always diverted same into the headrace and then brought the same through the headrace and developed power therewith in and about its mill, after which the water so used was discharged in the North Powder river at a point which is just above the head of the ditch belonging to defendant Peterson; that in 1931 the milling company used said waters until the 6th of June of that year, when it ceased entirely any use until December, 1931, when it again used the same, and none of the waters went through the headrace of the milling company during the time of such nonuse and none were used by defendant Peterson; that all of said waters to which said milling company was then entitled from June 6, to December, 1931, were beneficially used by plaintiff and others similarly situated, such use being upon their several lands above referred to;

"That such nonuse by said Milling Company and such use by plaintiff and others similarly situated, was brought about by an agreement then had between said parties whereby, for a consideration to it paid by plaintiff and such others similarly situated, said Milling Company did not demand that the State Engineer and his assistants and employees turn said waters down to it pursuant to its date of priority of 1870;

"That in the year 1932, and from July 2 to October 15 of said year, and under like circumstances and for a consideration to it paid, the said Milling Company, in like manner, failed to demand the use of said waters, thus making the same available to all persons lawfully entitled to the same, including plaintiff and others similarly situated, and plaintiff and others similarly situated then put said water to a beneficial use in the manner and form as above set out; ***"

That none of the waters went through the headrace of said milling company from July 2, 1932, to October 15 of that year, and none thereof were used by defendant Peterson; that at all times during each year since 1870, when said waters were not so used by said North Powder Milling & Mercantile Company, the same, during each irrigation season, were all put to a beneficial use by the upper users of said stream, including plaintiff, but said North Powder Milling & Mercantile Company always used said waters in the manner and the amounts above referred to under claim of right, and any use by plaintiff was always at times when said water was not needed by it for power purposes under its claim of priority;

"That said North Powder Milling & Mercantile Company desires, for a consideration to it paid, to make its entire one thousand inches of water, with a priority of 1870, available between May 15 and November 1st of each year in the future to the use of plaintiff and others similarly situated, including any and all other persons entitled to use the same for the irrigation of their several lands above referred to, plaintiff and others similarly situated being able to put all of said one thousand inches to a beneficial use, without waste;

"That said North Powder Milling & Mercantile Company desires to so make available by failing to demand of the State Engineer and his Assistant Water Master or Masters that the above waters be distributed according to the Decree above referred to between May 15th and November 1st of each year, without any demand ever being hereafter made by said North Powder Milling & Mercantile Company for the use of said one thousand inches of water, or any thereof, for any purpose whatsoever between said dates.

"That plaintiff and others similarly situated are willing to pay said consideration if and when they are certain that all of said waters of said North Powder Milling & Mercantile Company will at all times during each irrigation season hereafter between May 15th and November 1st, be available to them in accordance with their respective dates of priority, free from any claim or demand on the part of the defendant Peterson, other than as expressly provided in his said water right certificate."

That heretofore, on the 21st of September, 1928, defendant Gerald Peterson entered upon the southeasterly bank of the North Powder river and immediately below the point where the tailrace of the milling company discharged and discharges its waste waters into said North Powder river (describing the land in Baker county, Or.), and filed with the state engineer of the state of Oregon his application for a permit to appropriate 3.09 second feet of "water from the North Powder Milling & Mercantile Company's tail race which has been returned to the North Powder River, tributary of Powder River," all for use upon his lands in sections 23 and 24 in said township and range in Baker county; that Peterson thereafter duly constructed his ditches and reclaimed his lands and irrigated the same by the use of said water, as hereinbefore stipulated, and so proceeded under permit from the state engineer;...