In re Rights to Use of Waters of Owyhee River and its Tributaries

• Decision Date: 23 May 1933
• Citation: 22 P.2d 206,143 Or. 249
• Parties: In re RIGHTS TO USE OF WATERS OF OWYHEE RIVER AND ITS TRIBUTARIES. v. JORDAN VALLEY CATTLE CO. et al. OLIVER
• Court: Oregon Supreme Court

22 P.2d 206

143 Or. 249

In re RIGHTS TO USE OF WATERS OF OWYHEE RIVER AND ITS TRIBUTARIES.

OLIVER v. JORDAN VALLEY CATTLE CO. et al.

Supreme Court of Oregon

May 23, 1933

Department 2.

Appeal from Circuit Court, Malheur County; C. H. McColloch, Judge.

Proceedings in the matter of the determination of the relative rights to the use of the waters of the Owyhee river and its tributaries, a tributary of the Snake river, wherein John A Oliver, opposed by the Jordan Valley Cattle Company and others, filed an application for a rehearing to correct the description of the source from which applicant takes water for irrigation purposes. From a decree making the correction the opponents appeal.

Affirmed.

See also, 16 P.2d 17.

Robert D. Lytle, of Vale, and Edwin Snow, of Boise Idaho, for appellants.

George T. Cochran, of La Grande (Cochran & Eberhard, of La Grande, and Percy A. Cupper, of Salem, on the brief), for respondent.

BEAN Justice.

This is an appeal from a decree of the circuit court rendered upon a rehearing therein, correcting the description of the source from which applicant, John A. Oliver, takes water for irrigation purposes. From a decree making the correction, the Jordan Valley Cattle Company, a corporation, Vincente Mendiola and Nelle B. Parks, water users, appeal.

It appears that on December 31, 1919, a determination of the rights to the use of the waters of the Owyhee river and its tributaries was initiated by a petition, after due notice of times and places fixed for hearing testimony in support of the claims of the various claimants was received. Among the statements and proofs of claim were those of Vincente Mendiola, D. C. Beers, who was the predecessor in interest of the objector, Nelle B. Parks, and Jordan Valley Cattle Company, appellants herein, and John A. Oliver. In those original proceedings the applicant, John A. Oliver, filed his claim with the state water board (now the state engineer) claiming the right to the use of the waters of Cow creek, a tributary of Jordan creek, which in turn is a tributary of the Owyhee river. A part of the statement and proof of claim of Oliver, filed with the state water board, reads as follows:

"2. Q. Do you claim a right to the above named stream (Owyhee River) or a tributary thereof? If from a tributary, give its name. A. Cow Creek, a tributary. ***"

Among other answers, we find: "8. Q. state the means of utilizing such water, giving the name by which the ditch is most commonly known, if a ditch is used. A. Water is utilized by means of Oliver ditch."

The notice of appropriation which is attached to the statement and proof of claim under which Oliver claims states: "That we intend to take said water out of and divert it from said Cow Creek Lakes, by means of a ditch," to be constructed, and describes the lands.

The findings and order of the state engineer were filed in conformity to the statement and proof of claim as filed by applicant, Oliver. No objections to the order of determination of Oliver's rights by the state engineer were filed. Certain objections were filed by other claimants and heard by the court, and, after hearing thereon, the circuit court on September 21, 1926, entered its decree awarding Oliver a right as follows: "Name and postoffice address of appropriator, John A. Oliver, Jordan Valley, Oregon; Date of relative priority, March 16, 1907; Amount cubic feet per second, No amount specified; Number acres, 277.1; Use, Irrigation; Name of ditch, Oliver Ditch; Stream, Cow Creek; Description of land or place of use: (Describing land)."

An appeal was taken by parties other than Oliver to this court. See In re Water Rights of Owyhee River, 124 Or. 44, 259 P. 292. A decree on the mandate was entered February 3, 1928, by the circuit court. On the day following the entry of the mandate in the circuit court, John A. Oliver filed an application for rehearing, stating, in effect, first, that he was entitled to an appropriation with the priority given to the use of the waters naturally stored in Upper Cow Creek Lake between the elevation at which Upper Cow Creek Lake overflows into Lower Cow Creek Lake; second, for a redetermination of the question of duty of water.

In the original proceeding under this application, the objector-appellant, Jordan Valley Cattle Company, appearing generally, and Vincente Mendiola and Nelle B. Parks, appearing specially, filed their several motions to dismiss the application for rehearing. On March 6, 1928, the circuit court, presided over by Judge McColloch, made an order denying a rehearing on the question of the duty of water and holding the other questions open until further order of the court. No further action was taken in the cause until December 23, 1930. During the interim Hon. W. W. Wood had been appointed judge of the Ninth judicial district to fill the vacancy occasioned by the death of the Hon. Dalton Biggs. On December 23, 1930, Oliver filed a motion for change of judges, on account of implied prejudice, which was denied. The cause was set for hearing February 2, 1931. The motion was sustained by the circuit court, and Oliver appealed to this court. See Oliver v. Jordan Valley Land & Cattle Co., 137 Or. 243, 1 P.2d 1097.

The order and decree of this court returned the cause to the trial court for action on the issues. The circuit court, Hon. C. H. McColloch presiding, on January 11, 1932, entered an order setting the hearing of the application on March 7, 1932, and directing the clerk to forthwith mail notice of hearing to each and every owner and holder of water rights in the Owyhee river and its tributaries, as shown by the findings and decree of the circuit court. Under this order, during the interim, these objectors filed their motion for an order vacating said order of January 11, 1932, for the reason that it was made without notice to these objectors. Such notice is not required by the statute. The further reason was assigned that at the time the order was made there were undetermined issues of law pending before the court. The motions were denied. The clerk, obeying the order, made his return and proof of service on June 13, 1932, showing the mailing of notice "to each and every owner and holder of water rights in the Owyhee River and its tributaries, as shown by the findings and decree of the Circuit Court for Malheur County." The objectors Mendiola and Parks stood on their special appearances, and refused to plead further. The objector-appellant Jordan Valley Cattle Company, within the time allowed by the court, filed its amended objections to the petition, to which a reply was filed, and upon which issues the cause was tried. It was first asserted and claimed that the motions to dismiss, pending when the order made by Judge Wood was appealed from and which was reversed, were not disposed of when Judge McColloch set the matter for hearing. For a second answer and defense the cattle company pleaded that there were other parties to the original adjudication proceedings who had died, no names of their heirs or legal representatives being given, and that there were other parties who had transferred their interests to new parties, who were not given notice by the clerk, and that by reason of such failure the court did not have jurisdiction and the proceedings should abate. The third answer and defense was a former suit wherein appellant John A. Oliver was plaintiff and Gus Azcuenaga et al., predecessors in interest of objector Jordan Valley Cattle Company, were defendants. In that cause the issue of priority of right between these parties was raised and determined adversely to the applicant, Oliver, and also raised the issue of the right of the predecessors of the objector to use Upper Cow Creek Lake as a reservoir for impounding flood water for supplemental irrigation and the cutting of a channel across the rock outlet of the lake controlled by a proper dam and headgate so that all of the water impounded by this appellant's predecessors could be drawn off, and that these issues were determined adversely to applicant, John A. Oliver, and this defense was pleaded as an estoppel.

The physical conditions of this watershed are stated in appellant's brief as follows: "Cow Creek flows in a westerly and then in a southerly direction." It arises in the high hills along the eastern boundaries of Malheur county, "flowing first in a westerly direction into and through Upper Cow Creek Lake." At the outlet of the lake the steam flows southward into Lower Cow Creek Lake. When the stream leaves Lower Cow Creek Lake, it flows through two branches: East Cow creek and West Cow creek. Both of these branches flow toward the south, and both branches enter upon the lands of Jordan Valley Cattle Company. After entrance upon the lands of the company, the branches join and flow on into Jordan creek, which in turn flows into the Owyhee river. Upper Cow Creek Lake is a rather large body of water, and is fed by four streams. The outlet was changed by an intrusion of lava which forced the outlet to a certain point. The entire western or outlet end of the lake was dammed off by the intrusion of lava; the present outlet being the low point in the barrier.

The fourth answer and defense of this objector pleaded affirmatively its permit to store 5,000 acre feet of flood waters in Upper Cow Creek Lake by means of a dam 5 feet in height across the outlet of the lake at the natural barrier, and pleads a reservoir permit, the ownership of the reservoir site, and that all of such rights are active, subsisting rights.

The cause was heard by the court, and upon the conclusion of the testimony the court made findings of fact detailing the history of the proceedings, and ordered and decreed (a) that the motions to dismiss of ...