In re Water Rights in Silvies River

• Decision Date: 23 June 1925
• Citation: 237 P. 322,115 Or. 27
• Parties: IN RE WATER RIGHTS IN SILVIES RIVER
• Court: Oregon Supreme Court

237 P. 322

115 Or. 27

IN RE WATER RIGHTS IN SILVIES RIVER

Supreme Court of Oregon, En Banc.

June 23, 1925

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

In the matter of the determination of the relative rights of various claimants to the use of the waters of the Silvies river and its tributaries, a tributary of Malheur Lake. On appeal by the Pacific Live Stock Company and other claimants, from an adjudication of their rights. Decree modified in part, and as modified, affirmed.

This is an appeal by several claimants from the adjudication of their rights to the waters of Silvies river and its tributaries. The history of this stream and section of the country, taken from the record, is about as follows:

Silvies river drainage basin is situated in the north central part of Harney county and the southern part of Grant county. The river rises in the Strawberry Mountains, at an elevation of 8,000 to 9,000 feet, and flows southeasterly about 80 miles to where it empties into Malheur Lake, at an elevation of about 4,000 feet above sea level. Silvies river is a perennial nonnavigable stream. Malheur and Harney Lakes have no outlets, and water generally flows from the former into the latter.

There are three valleys of considerable extent, through which Silvies river flows. These valleys have but little fall. Spring floods consequently overflow considerable of the land creating meadows, marshes, and swamps, the peak of the flood occurring some time in April. The run-off, prior to April 1st, is of but little benefit to the irrigators, as the ground is generally frozen or under snow until this time. Commencing at the north, the first of these valleys is Bear Valley, which is situated near the headwaters of the river. It has an elevation of about 5,000 feet. The river flows through this valley from east to west, and enters a deep winding canyon, which it follows southward for about 8 miles to where it enters Silvies Valley, which is the second valley of importance on this stream system. This valley has an elevation of 4,500 to 4,800 feet. The river flows through this valley in a well-defined but shallow channel, and again enters a deep canyon, which it follows in a general southward direction for about 35 miles, to Harney Valley, which is the largest of the three valleys. The river flows in a southeasterly direction across Harney Valley to Malheur Lake. In this valley the river has no well-defined channel, but follows numerous sloughs and depressions for nearly 30 miles and empties into the lake in several different places.

Flowing from the mountains to Harney Valley, Silvies river has a heavy grade, and, as a result, in flood time carries out quantities of silt. Naturally, as the stream reaches the valley, the waters become sluggish, and silt is rapidly deposited. This action has built up a delta for the river, and at the upper part of the valley the river banks and bed of the stream are higher than the valley level on either side. This makes it comparatively simple to tap the river channel with ditches, and carry the water long distances on easy grades, to lands bordering on the stream. Where the water overflows the banks, it does not return until several thousand acres of land have been flooded, and then not until the lake has been almost reached. In the spring of the year much of this valley is flooded to a depth of several feet for a short period.

Harney Valley has been aptly called the "Meat Platter" of Oregon. It is a vast level plain. Around this vast platter the hills rise forming a rim. From the north where Silvies river breaks through this rim, or emerges from the canyon, it flows through many channels or sloughs across this level valley, in a southeasterly direction, to the lowest part of the valley--a huge swamp known as Malheur Lake.

All of the land in Harney Valley on the east side of Silvies river, embraced in this adjudication, was formerly included in the Malheur Indian Reservation. On September 13, 1882, and May 21, 1883, by proclamation of the President of the United States, all of the lands of the reservation, except 320 acres occupied as a military post, was open for settlement as a part of the public domain. These lands were surveyed in 1883. The survey was proved and filed in the Lakeview Land Office in May, 1884. Prior to June, 1884, no entry could be made of this land. See Nevada Ditch Co. v. Bennett, 30 Or. 59, 75, 45 P. 472, 60 Am. St. Rep. 777.

Although the water users on Silvies river claim to have appropriated all the water and have used it beneficially, there is apparently sufficient water for a much greater area if it were properly handled. This is a semiarid region and in order to produce valuable crops, it is necessary to irrigate the land in this way. With water, the soil will produce vegetation abundantly. In this valley all kinds of grain, grasses, vegetables, and fruits have been grown successfully. From where the river enters Harney Valley on a direct line to the lake it is about 25 miles. However, the river channel is perhaps 50 or 60 miles in length, and it sometimes takes a month or 6 weeks for the floods, after entering the valley, to reach the lake, resulting in considerable loss by evaporation and seepage. There are about 61,000 acres claimed to be irrigated in the valley. The water board fixed the duty of water for Harney Valley at one-eightieth of a second foot per acre, and for the region farther up the river at one-sixtieth of a second foot per acre. The violent floods in the early spring are caused by the melting of the snow in the high mountains. As a rule, these floods are of short duration, but may occur any time during February, March, April, and May. As a general rule they occur in May and April.

The records of the discharge of Silvies River near Burns were taken by the state engineer from papers of the United States geological survey. The estimated monthly discharge of the river at that period for the year 1904 ranges as follows:

Total Maximum. Minimum. Mean. Acre Feet. January ............ 42 6 24 1,476 March ........... 3,268 235 791 48,640 April ........... 4,730 629 2,460 146,400 May ............. 2,332 409 1,057 64,990 For 1906"" March ............. 587 20 77.5 4,770 April ........... 2,010 587 1,260 75,000 May ............... 742 259 416 25,600 For 1910"" March ........... 3,050 382 1,510 92,800 April ............. 815 336 628 37,400 May ............... 327 21 162 9,960 For 1914"" March ........... 1,500 "" 758 46,600 April ........... 1,800 697 1,250 73,200 May ............... 655 198 372 22,900

After the 1st of July, the river is practically dry, and of no value as a source of water for irrigation. It also appears from the engineer's report that the general practice throughout this section seems to be to let nature do the irrigating wherever it is possible. The general plan of irrigation has been to let the river channel overflow naturally during extreme floods, and then, as the flood subsides, place dams, dikes, levies, and obstructions in the channel to raise the water level and cause further flooding. In the larger sloughs and depressions these dams and dikes act as reservoirs, storing the water during flood period to be used for subirrigation later in the season. Naturally this is a very wasteful system of irrigation, as a large surface is exposed to evaporation. The land is injured by the application of water--too much at one time, and insufficient at other times. There are but three or four instances in the valley where the methods now used approach anything like a practical irrigation system. On each of these places ditches have been constructed from the source of supply to the land to be irrigated, and there the water is distributed by means of laterals. These laterals extend at intervals of 200 to 400 feet, and subirrigation is relied upon to produce a crop. The laterals are constructed with little or no grade, and the water is allowed to stand in them throughout the irrigation season. Good crops of grains, alfalfa, timothy, and garden vegetables are grown on land irrigated in this way. Where the land is overflowed, or flooded only, wild meadow grasses can be raised. The decree prescribes that the irrigation season extends from March 20th to September 1st of each year.

About 275 persons, firms, and corporations filed statements and proofs. There were 265 contests filed before the water board. After the water board made its findings and order of determination, and the same were filed in the circuit court, several exceptions thereto were filed in the circuit court. That court modified some of the findings, and confirmed them as modified. Upon this appeal several errors are assigned by different claimants as to the decree awarding rights to different claimants, and particularly in regard to the date of priority of rights, and for a failure to award any water to certain lands.

T. P. Wittschen, of San Francisco, Cal., and P.J. Gallagher and Gallagher & Kester, all of Ontario, for Pacific Live Stock Co.

C. B. McConnell, McCulloch & Duncan, and J. W. Biggs, all of Burns, C. A. Sweek, of Corvallis, and Erskine Wood, of Portland (J. S. Cook and Biggs & Biggs, all of Burns, Otis Patterson, of Canyon City, and Geo. S. Sizemore, of Burns, on the brief), for various other claimants.

BEAN, J. (after stating the facts as above).

The Pacific Live Stock Company, a claimant to water rights for a large area of land in Harney Valley and Silvies Valley, filed in the circuit court several exceptions to the findings by the water board, and now appeals from the decree of the circuit court assigning errors therein. Taking these matters somewhat in the order they are presented, and following as near as we can the form of tabulation of rights adopted by the...