Ison v. Sturgill

• Decision Date: 14 June 1910
• Citation: 57 Or. 109,109 P. 579
• Parties: ISON et al. v. STURGILL et al.
• Court: Oregon Supreme Court

109 P. 579

57 Or. 109

ISON et al. v. STURGILL et al.

Supreme Court of Oregon

June 14, 1910

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by Josephine Ison and others against William Sturgill and others. From the decree, defendants appeal. Modified and affirmed.

King J., dissenting.

This is a suit to settle certain water rights. The plaintiffs Josephine Ison, Edna McDougal, and Virgil S. Ison, claiming a portion of the waters of Pine creek, in Baker county, Or for the purposes of irrigation, through the Strother Ison ditch, and jointly with plaintiff W.A. Cartmill, through the L.B. & O.P. Ison ditch, bring this suit against William Sturgill and 25 or 30 other defendants who claim rights to water from the same creek above plaintiffs. Two suits were originally commenced in August, 1902, against different defendants, as to the diversion by the L.B. & O.P. Ison ditch, and were afterward consolidated and tried as one case. Before decree therein, by order of the court, a supplemental complaint was filed, tendering issues as to the diversion by the Strother Ison ditch, but affecting the same parties. Final decree was rendered on August 6, 1909. Pending the trial many changes occurred in the ownership of the rights of the original defendants, some having transferred their interests to strangers to the suit, and two having died, and their heirs having succeeded to their rights. In some cases substitutions were made. In others they were not. But the cause proceeded as if substitution had been made, and in this opinion it is not necessary to follow these changes, but we will recognize the parties mentioned in the findings and decree as the present parties defendants. A detailed statement of the history of each ditch, the diversion, and the use of the water we deem unnecessary for the purpose of this opinion. The trial court made findings and decree as to all of the parties to the suit in so far as they were affected by the issues made.

The only diversions involved on this appeal are (1) that of Strother Ison, which was made in 1863 for the N.W. 1/4 of section 28, township 8 S., range 39 E., and only the amount thereof is controverted, the court finding in plaintiffs' favor for 240 inches, defendants conceding only 30 inches diverted in 1863, 50 inches in 1883, and 100 inches in 1902. (2) The L.B. & O.P. Ison diversion was made in 1864 for the S. 1/2 of the S. 1/2 of section 21 (the O.P. Ison claim), and the N.E. 1/4 of the S.W. 1/4; N.W. 1/4 of S.E. 1/4; S.W. 1/4 of N.E. 1/4; and S.E. 1/4 of N.W. 1/4 (the W.L. Payton homestead), township 8 S., range 39 E., and subsequently extended to other land. The court found in plaintiffs' favor for 320 inches, as of that date, and 160 inches of date May 23, 1872. Defendants contend they should be limited to an appropriation of 195 inches prior to 1888. (3) The ditches of the defendants appealing are that of Flavius Perkins claiming 200 inches diverted in 1867 upon the Payton place viz., N. 1/2 of S.E. 1/4 and S.E. 1/4 of N.E. 1/4 of section 29. The court found that the use of water thereon had been by permission of Strother Ison, through his ditch, and therefore no right was acquired. (4) Through that known as the Williams ditch defendant Olson and others claiming 500 inches as of date 1868, the court found that there was diverted thereby in 1868 100 inches, and in 1870 60 inches, and in 1873 180 inches. This ditch now covers about three sections of land, situated in sections 7, 18, and 19, township 8 S., range 39 E., and sections 12, 13, 23, and 24, township 8 S., range 38 E. (5) Welch claims the use of water between the 15th day of May and the 10th day of June each year, upon 280 acres in sections 7, 18, township 8 S., range 39 E., under a diversion of the surplus water in said creek made in 1897. The court found that defendant Welch claims only the surplus water after plaintiffs' needs are supplied, and that no right was acquired as against them. Only the defendants claiming through the ditches just mentioned appeal.

F.M. Saxton, for appellants except J.W. Dickey. C.C. McColloch, for appellant.

J.W. Dickey. John L. Rand, for certain respondents. M.L. Olmstead, for other respondents.

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

As to the appropriation for the Strother Ison place, the evidence tends to show that between 1863 and 1866 about 60, possibly 75, acres were cultivated; that thereafter this was not increased much, if any, until 1903; that the portion plowed was in several tracts, separated at places by sloughs and willows. A witness states that one of the sloughs was swampy. Two channels of the creek run diagonally across the place. It seems, therefore, that portions of the place needed no irrigation. Conceding that the land needs a greater quantity of water per acre than other land on the creek, yet we think 200 inches a sufficient allowance for that place, as prior in time and right to any other ditch. This diversion was taken from the south bank of Pine creek, about four miles above Ison's land, and turned into a dry channel, called Spring creek channel, and back into the creek in section 29, and thence into the ditch on the north bank. As to the L.B. & O.P. Ison ditch, the original appropriation was made in 1864 for the O.P. Ison and W.F. Payton claims of 160 acres each, situated in section 21. Prior to 1885 not to exceed 120 acres on each claim had been reduced to cultivation. Contention is made by the plaintiffs that water was appropriated and used by them and their predecessors for the irrigation of pasture lands. But the evidence is not convincing that any continuous or practical use of the water was intended or made upon the pasture lands until recent years. From the evidence, we think that one inch of water to the acre is sufficient to irrigate it. Therefore the original appropriation through that ditch should be limited to 240 inches. The second appropriation through that ditch was the initiation of a new appropriation. The circuit court found that it applies only to the N.W. 1/4 of the S.W. 1/4, and the N.E. 1/4 of the S.E. 1/4 of section 21. That, also, should be limited to 1 inch to the acre, viz., 80 inches. At the time of this diversion, a notice thereof was filed in the county clerk's office, claiming 350 inches. The filing of the notice of appropriation did not alone establish the appropriation nor determine either the time or amount thereof; but the necessity, the actual diversion, and the use were all essential in acquiring title to the water by prior appropriation. If these existed, title to it was acquired without notice; and, if not, the notice could not give title. Notice shows prima facie an intention from the date of its posting to appropriate, and, if followed by diligence in the construction of the ditch and diversion of the water, the right will date from the time of giving the notice.

As to the diversion for the defendant Flavius Perkins' place, there is no question but that water was used on this place for irrigation in 1868 by W.F. Payton, who first settled upon it, both on the south side of South Pine creek in a ditch with a carrying capacity of 50 or 75 inches, and on the northside through the Strother Ison ditch; the amount of land irrigated being about 20 or 30 acres. This was not increased much until after Payton's death in 1874, when 20 acres additional were reduced to cultivation, and in 1889 it was increased to about 100 acres.

The principal controversy is as to whether Perkins acquired a right to the water so used. Plaintiffs contend that he, having only used it through the Strother Ison ditch, by permission of Ison, acquired no right. This contention might be sustained if he only used water to which Strother Ison had acquired title, but he only acquired title to as much as he needed and used. As to the Spring creek channel used by Strother Ison as a part of his ditch, it is plain he acquired no exclusive right to it. It carried more water than the Ison appropriation, and was used by the mill people and other settlers, and he acquired no title to the surplus water flowing in it. Payton, it seems, at one time took water from that channel at a point below the lower mill, but his principal diversion from the first was by a ditch which tapped the south channel of Pine creek, at or near a point where Spring creek channel entered it. Whether he took the water from Pine creek or Spring creek is immaterial, because there was surplus water in both, and we cannot assume that Payton was using water belonging to Strother Ison by his permission. The same is true of the water taken on the north side of Pine creek. If the Ison ditch was used on that side by Ison's permission, yet Payton had a right to take the water from the creek. If Ison did not need the water and used it, then it was available to the next user. It seems that part of the Ison ditch on the north side of the creek was a natural ravine and much of it on the Payton place, and, like Spring creek channel, had a much greater capacity than necessary for the Ison appropriation. Even if Payton's use of the Ison ditch was by license and revocable, still a revocation could not terminate his water right. Therefore, we conclude that Payton appropriated in 1868 50 inches of water from South Pine creek in these two ditches, and an additional 50 inches in 1889. There is no issue in this suit as to Perkins' right to use the Ison ditch, but only as to the right to the water.

As to the Williams ditch, in the year 1865 R.P. Williams was occupying as a squatter the S.W. 1/4 of section 24, and the S.E. 1/4 of section 23, township 8 S., range 38 E. At that time he diverted from Pine creek, near where it crosses the section line between sections 23 and 26, 100 inches of water,...