Ison v. Sturgill

• Citation: 57 Or. 109,110 P. 535
• Parties: ISON et al. v. STURGILL et al.
• Decision Date: 16 August 1910
• Court: Oregon Supreme Court

110 P. 535

57 Or. 109

ISON et al. v. STURGILL et al.

Supreme Court of Oregon

August 16, 1910

On motion by defendant Dickey to modify the decree (109 P. 579) and on motion by defendants Sturgill and others to recall the mandate. Motions allowed.

EAKIN, J.

Motion by defendant Dickey to modify the decree to the extent of granting to his defendant his costs and disbursements under the provisions of section 561, B. & C. Comp., as amended by Laws 1909, p. 110. That section only applies to law actions, while section 566 leaves the taxation of costs in suits to the discretion of the court.

In this case, as in most of the contests over water rights, all the parties were, to some extent, in the wrong, contending for a greater quantity of water than they were entitled to, and the evidence of their rights is always in parol until established by a decree, which is to the advantage of all the parties. The trial court in this case adjudged that neither party should recover costs, although plaintiffs were largely successful at the trial. F. Perkins, to whose interest this defendant succeeded, by his answer contended for 200 inches of water as of date 1867 and 100 inches additional as of date 1870, and admitted the use of that amount, which was an infringement of plaintiffs' rights. In this case we deem it equitable that each party should pay his own costs. Cole v. Logan, 24 Or. 304, 314, 33 P. 568; Hough v. Porter, 51 Or. 318, 326, 95 P. 732, 98 P. 1083, 102 P. 728.

The appellants, except Dickey, also ask to recall the mandate that the decree wherein it determines that the water in the Strother-Ison ditch shall be measured where it enters the N.W. 1/4 of section 28 may be corrected. The trial court in its findings adjudged the amount of water required upon the land, and added 15 inches for loss by seepage. In determining the allowance for the ditch, we had in mind the amount needed on the land and rendered the decree for measurement at the point where the ditch enters the land under the impression that that was the decree of the lower court. However, in view of the impracticability of measuring the water at the lower end of the ditch, the mandate will be recalled and corrected to increase the water 15 inches in the Strother-Ison ditch allowance for seepage, and decree that it be measured at the point where the water is diverted from the creek in section 29; also, that the statement that the Williams' ditch is...