In re Willow Creek

• Decision Date: 16 February 1915
• Citation: 146 P. 475,74 Or. 592
• Parties: IN RE WILLOW CREEK.
• Court: Oregon Supreme Court

146 P. 475

74 Or. 592

IN RE WILLOW CREEK.

Supreme Court of Oregon

February 16, 1915

On rehearing. Modified.

For former opinion, see 144 P. 505.

BEAN J.

In regard to the date of relative priority of the company or Lockett ditch of the claimant Willow River Land & Irrigation Company which was reserved for further consideration, we note that in its statement and proof the years 1872, 1873, and 1874 are the dates given when the water was first used for irrigation from the above ditch and others. In the statement of the enlargements and completion of the ditch we find the following:

"The waters were appropriated in 1876 in said ditch covering about 40 acres of land. The second year it was increased to 80 acres, and the third year was completed to its present capacity, which supplied water for 11 claimants and consisted of 50 shares. * * *"

This taken in connection with the main statement, evidently refers to the extension of the ditch beyond Phipps creek.

Mr. Wm Boswell, a witness for the Willow River Land & Irrigation Company, testified (Book B, p. 79) to the effect that he surveyed the company or Lockett ditch in the fall or winter of 1873 for the purpose of draining swamp land of Joseph Cole, who also had land to be irrigated; that they got the water through to Phipps creek the next season; that three or four years afterwards it was extended and a number of farmers used the ditch from which to irrigate. Mr. C. E. Boswell, witness for claimant, testified (Book B, p. 468) that he had known the ditch since 1873, and that it had been used since that time; that he had followed it down a distance in going to a neighbor's house. Mr. Leonard Cole, witness for plaintiff, who settled in the valley in 1872, testified (Book B, p. 429 et seq.), in substance, that the company ditch was constructed below Cole's ditch; that it was started about 1872, completed about halfway down in 1873, and extended and completed in 1877. It was shown on cross-examination that in 1891, in the case of Cole and Kendall v. Logan, Cole testified as follows:

"Q. What, if anything, do you know about a company or corporation ditch--ditch being taken out of Willow creek and located upon Logan's homestead? A. In the year 1877 there was a ditch taken out on Logan's homestead. It was a company or corporation ditch. * * * Q. What year was it built in? A. 1877."

The witness did not then testify that the work was commenced in 1872 or 1873. He stated that the ditch concerning which he testified was the same as the one now referred to as the company or Lockett ditch. Mr. C. M. Foster, a civil engineer of Baker, testified (Book B, p. 526) that he saw them working on the company ditch near the head or lower down the valley, he thought, about 1874. W. R. Lofton testified (Book B, p. 482) that his father settled on the creek in 1875, and he became acquainted with the company ditch at that time; that the water ran down to Phipps creek, then down that creek, and was taken out below; that his father while there irrigated 75 or 80 acres on the Nick Olk place; that he moved away in 1878, and the next year or so the ditch was extended below Phipps creek. C. D. Davis, witness on the other side, testified (Book A, p. 938) to the effect that he lived on land now covered by the ditch in 1876 and 1877, and that he thought the ditch was constructed part way in the latter year; that 25 or 30 acres were irrigated from the lower ditch, and the amount was increased from year to year. Mr. J. T. Logan, who appears to be acquainted with the early settlement of the valley, testified (Book A, p. 945) that the company ditch was constructed in 1877 or 1878, and finished from Phipps creek on down in 1883. It therefore appears that some of the witnesses, in referring to the company or Lockett ditch, have in mind the construction of the ditch from the Logan place to Phipps creek, and others from Phipps creek on beyond. The places in the valley down below the Cole and Logan farms seem to have been settled upon later than those named. It appears that the settlement in this vicinity proceeded from the places mentioned on down the valley. Mr. W. J. Scott, who came to the creek in 1878, states that the company ditch was then down to Phipps creek, and about 80 acres were irrigated. It is stipulated that the ditch was made from Phipps creek down in 1882, but there was a lower ditch to which testimony had already been given. A careful re-examination of the evidence leads us to believe that the company or Lockett ditch was commenced and constructed to Phipps creek in 1873; that from 60 to 100 acres were irrigated therefrom; and that when this ditch was started several of the quarter sections of land beyond Phipps creek had not been settled upon, or had only a small cabin thereon without the land being improved. It does not appear that the appropriation was at first made for unoccupied land, or for that farther down the valley than Phipps creek. Subsequently, and not earlier than 1877, the ditch was taken out of Phipps creek about one quarter of a mile below where the company ditch emptied into that stream and constructed beyond. It was afterwards placed upon higher ground and extended. We therefore conclude that the lands served from the company or Lockett ditch between the intake thereof to Phipps creek are entitled to a date of relative priority of 1873, and the lands served from the extension thereof beyond Phipps creek are entitled to a date of relative priority of 1877, each of these subdivisions of land to be tabulated by the water board.

Malheur Irrigation Company, Limited.

R. C. McKinney made a filing June 10, 1906, on what is known as the Beers reservoir site. Notice of the appropriation of 25,000 cubic feet per second of the flood waters of Willow creek was filed in the office of the state engineer, posted at the proposed point of diversion on Willow creek, and recorded in the records of water rights in Malheur county. (Exhibit No. 65, Book 4; testimony, Book A, p. 870.) By deed of July 1, 1907, filed for record in that county July 26, 1908, McKinney conveyed all his rights by virtue of such notice of appropriation to the Malheur Irrigation Company. The company made a filing March 1, 1906, on the same site as the Beers reservoir. The Willow River Land & Irrigation Company initiated its rights by filing a notice of appropriation on April 7, 1908. It is contended by this company that the filings made upon the Beers reservoir site have been abandoned, and should be canceled.

The act of 1905 (section 6625, L. O. L.) under the provisions of which R. C. McKinney and the Malheur Irrigation Company filed upon the Beers reservoir site, is, in effect, an amendment of the act of 1891 (section 4993 et seq., B. & C. Comp.). The later act enlarged the scope of the former, and granted to persons, as well as to corporations, the privilege of appropriating water by posting and recording a notice and making application to the state engineer. Section 6533, L. O. L., which was repealed in 1913 (Laws 1913, p. 138), provided that a corporation proposing to appropriate water should commence the actual construction of its proposed ditch or canal within six months from the date of the posting of the notice prescribed, and should prosecute the same without intermission (except as resulting from the act of God, the elements, or unavoidable casualty), until the same should be completed; that the actual capacity of the ditch or canal, when completed, should determine the extent of the appropriation; and that upon a compliance with the act the right to the use of the water appropriated should relate back to the date of posting the notice. Section 6546 states that the right to appropriate water may be lost by abandonment or neglect to use the same for a period of one year, but that the question of abandonment shall be one of fact to be tried and determined as other questions of fact. Under the present water code, by section 6630, L. O. L., as amended by the Laws of 1913, p. 277, it is provided that actual construction work shall begin within one year from the date of approval of the application and the construction of any proposed irrigation or other work shall thereafter be prosecuted with reasonable diligence, and be completed within a reasonable time as fixed in the permit, not to exceed five years from the date of such approval. Provision is made for an extension of time for good cause shown.

The statement of contest of the Willow River Land & Irrigation Company, so far as the same relates to the claim of the Malheur Irrigation Company, is a general one to the effect that the latter company has no right or claim to the use of...