In re Hood River

Decision Date29 July 1924
CourtOregon Supreme Court

McCourt Burnett, and Brown, JJ., dissenting.

In Banc.

Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.

In the matter of the determination of the relative rights of the various claimants to the use of the waters of Hood river and its tributaries, a tributary of the Columbia river, in Hood River county, Or. Suit by the Oregon Lumber Company against the East Fork Irrigation District and others. From a decree the named defendant and others appeal. Modified and affirmed.

Hood river is a perennial, nonnavigable stream. It rises in the Cascade Mountains, in the southwesterly part of Hood River county, and flows in a northeasterly and easterly direction through Hood River Valley and empties into the Columbia river. The land irrigated from Hood river and its tributaries is semiarid, and irrigation is necessary for the raising of profitable crops, which are adapted to that climate and country.

This adjudication had its inception in a suit in the circuit court for Hood River county, by the Oregon Lumber Company against the East Fork Irrigation District. From a decree of the circuit court in favor of the district, the Oregon Lumber Company appealed to this court. On May 23, 1916, the decree appealed from was reversed, and the matter remanded to the circuit court, with directions to transfer the same to the water board for determination. See Oregon Lumber Co. v East Fork Irrigation District, 80 Or. 568, 157 P. 963.

Contest No. 1--Oregon Lumber Company, a Corporation, Appellant, v East Fork Irrigation District, Appellant and Respondent Pacific Power & Light Company, a Corporation, Appellant and Respondent, Mt. Hood Water Company, a Corporation, Appellant and Respondent, and Glacier Irrigating Company, a Corporation, et al., Respondents.

This controversy, as far as the Oregon Lumber Company is concerned, is mainly with the claimants, East Fork Irrigation District, Mt. Hood Water Company, and the Glacier Irrigation Company; their claims being the only ones which would materially interfere with the Oregon Lumber Company. For convenience we will refer to the Oregon Lumber Company as the "Lumber Company," the East Fork Irrigation District as the "District," the East Fork Irrigation Company, predecessor in interest of the East Fork Irrigation District, as the "Irrigation Company," the Mt. Hood Water Company as the "Mt. Hood Company," and the Glacier Irrigation Company as the "Glacier Company."

The Oregon Lumber Company claims, by virtue of an appropriation and use made in April, 1906, 340 second feet of the water of the East fork of Hood river for the purpose of generating electrical power for its lumber mill, and an additional 30 second-feet as leakage and seepage, and for a fish ladder. The water board found from the evidence in substance as follows: The Oregon Lumber Company, without the posting of any notices, went upon the East fork of Hood river and commenced to construct a dam for the purpose of diverting the water for use as power. The Lumber Company began work upon the dam in September, 1905, and completed the same and applied the water to the purpose of developing power about the middle of the year 1906 and within a reasonable time, and fixed the date of relative priority of the Lumber Company as September, 1905, and awarded 322 second feet of water for power purposes, and for leakage and fish ladder 13 second feet, making a total of 335 second feet. The board also found in substance as follows:

The rights of the East Fork Irrigation District appear to have originated with certain notices of appropriation, one filed by the East Fork Irrigation Canal Company, recorded on the 4th day of October, 1895, together with a map giving the outline of the ditch and calling for 5,000 miner's inches of water, the ditch to be 6 feet wide on the bottom, 12 feet wide at the top, and 4 feet deep. A second notice was filed by the East Side Water Supply Company for 2,000 miner's inches of water, recorded on October 15, 1895, the ditch to be 6 feet wide on the bottom, 10 feet wide at the top, and 3 feet deep. A further notice was filed by the East Fork Irrigation Company for 7,000 miner's inches of water, and recorded about the 25th day of November, 1895, which notice calls for a ditch 12 feet wide on the bottom, 18 feet wide at the top, and 4 1/2 feet deep. The maps filed with these notices show that the ditches were all to take about the same general course, and extend from the point of diversion on the East fork of Hood river, in a northerly and slightly easterly direction to the Columbia river. The claim of the Irrigation District shows that there are about 11,380 acres of irrigable land, which can be irrigated from the ditch. Using the last notice as a basis for their water rights, and dating their water right from November 25, 1895, and the size of the ditch as designated in that notice, and the grade of the ditch as shown by the testimony, constructed at one-eighth inch per rod a short way, and then changed to a grade of one-tenth inch per rod with the depth of water at 4 feet, the board found the capacity of the district ditch to be 142 second feet, or 5,680 miner's inches, and limited the amount of the water of the district to the capacity of the ditch as provided by the statute of 1891, and fixed the capacity of the ditch at the figures mentioned above.

With regard to the question whether or not due diligence in applying the water to a beneficial use had been maintained, on the part of the district, the board found in substance thus:

"At the inception of the right, the east side of Hood river was a rough, rolling, thickly wooded, undeveloped country. In order to improve any particular tract of land it was necessary to clear the land, prepare it for farming construct the necessary laterals so as to put water upon the land, and place upon the land the necessary improvements which good husbandry requires for the operation of farming. Such work necessarily takes time. The law does not require an appropriator to do all of that work at one time, but, if the work is done within a reasonable time, his appropriation relates back to the date of its initiation. The rules with regard to placing the water to beneficial use also apply to the building of a ditch to its capacity. Where the appropriator intends to appropriate a certain amount of water and ultimately to have his ditch of a certain size, he is not required to build that ditch to that size immediately, but may do so within a reasonable time after the appropriation is made. He may, therefore build a small ditch and increase its capacity as his development requires, until he has his ditch constructed at the full capacity intended at the time of the initiation of the appropriation, provided all this is done within a reasonable time. The history of the development of this company shows that the first appropriation was made by a company organized under the act of 1891, and the members of this company were the owners of the farm lands, or a large portion of them along the course of the ditch. The farmers themselves were pioneers, were limited in means, and performed most of the work upon the ditch, and upon their land in the preparation of it for irrigation, themselves. After having prepared a farm for the operation of farming, the apple industry became one of the principal industries in the Hood River Valley. The experience of the apple raisers taught the various growers that the best trees were produced in this particular climate and country by not irrigating the trees until they began to bear, and this condition of husbandry affected, to some degree, the development of the project initiated by the predecessors in interest of the East Fork Irrigation District. The East Fork Irrigating Company early got into financial straits, and arrangements were made with one C. R. Bone, who was given financial control of the company, to do a large amount of work upon the ditch. This was in 1897, and in 1901 water was delivered to water users through the ditch. Work had been performed upon the ditch each and every summer, and from that time on the water began to be used more and more each year, until at the time of the filing of the claim of the East Fork Irrigation District there were irrigated about 7,600 acres of land. There was a general enlargement of the ditch in 1904, and another one in 1908. But in addition to these enlargements, in the meantime, throughout the whole district where the irrigation was carried on, there was continuous construction work of laterals to supply lands which were newly developed each year. In 1912 the Irrigating Company found itself bankrupt, and the East Fork Irrigation District was formed, which district purchased the irrigating plant in the spring of 1913, for about $110,000, plus the debts of the company, which were paid by the district. These debts and the new construction work performed by the District up to April 30, 1919, amount to $134,337.37, making a total of purchase and construction cost to date of $244,337.37. Since the District was formed many of the laterals have been enlarged, flumes replaced by new ones, and a large amount of pipe laid, putting a large amount of their lands under a pressure system of irrigation; that is, the water is conveyed to the land through pipes under high pressure. There is no evidence in the record of any cessation in the work. The project, being a large one, is impossible to develop in a short time. The state water board, therefore, finds that the East Fork Irrigation District and its predecessors in interest have been diligent, and an unreasonable time has not elapsed since the initiation of its water right, and that its...

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