Kaylor v. Campbell

Citation13 Or. 596,11 P. 301
PartiesKAYLOR v. CAMPBELL.
Decision Date24 June 1886
CourtSupreme Court of Oregon

M Baker and R. Eakin, for appellant, Kaylor.

Zera Snow, for respondent, Campbell.

LORD J.

This is a suit in equity to restrain the defendant from diverting the waters of Clover creek. Both the plaintiff and defendant derive the title to the lands which they own from the United States. Clover creek is a natural stream of water, heading in government lands above the lands of the plaintiff and defendant, and runs through the lands of the plaintiff in a southernly direction, and partly through the lands of the defendant. The plaintiff alleges that in the fall of the year 1872 he appropriated all the water of said creek for the purposes of irrigation, stock water, and domestic uses; that such appropriation was according to the local custom and laws; and that, by the means of ditches, he conveyed the waters of said creek to his premises and lands; that he needed the water for such uses, and actually used and appropriated the same. Subsequently the defendant diverted and appropriated a portion of the waters of said creek for the irrigation of his land. Both diverted the water at or near the same point upon the creek, which was off of their own lands, and, at the time of the diversion and appropriation, upon land belonging to the United States. Subsequently the plaintiff acquired the title, under the timber act, by patent from the United States, to the land from which and upon which he and the defendant were diverting the water.

Although some other questions were noted at the argument, the real contention in the case is as to the amount or quantity of water the plaintiff is entitled to by actual prior appropriation. And this is purely a question of fact, and to be determined by the evidence. The basis of the plaintiff's rights in the premises, and also of the defendant's, rest upon congressional legislation. With the doctrine of the common law, as applied to riparian owners, we have nothing to do upon the facts made by this record. It seems that when plaintiff settled his claim there was no other person above him upon the stream running through his land, nor any appropriation of its water. For the purpose of irrigating his soil, and for domestic and stock uses, he went above his land, and upon government land, and diverted the waters of Clover creek. This he had a right to do, under the act of congress, and to the extent he...

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11 cases
  • Hough v. Porter
    • United States
    • Oregon Supreme Court
    • January 5, 1909
    ...10 Or. 371, 45 Am.Rep. 146; Shook v. Colohan, 12 Or. 239, 6 P. 503; Weiss v. Oregon Iron, etc., Co., 13 Or. 496, 11 P. 255; Kaler v. Campbell, 13 Or. 596, 11 P. 301; Faull v. Cooke, 19 Or. 455, 26 P. 662, 20 836; Low v. Schaffer, 24 Or. 239, 33 P. 678; North Powder Milling Co. v. Coughanour......
  • In re Hood River
    • United States
    • Oregon Supreme Court
    • July 29, 1924
    ... ... grantee of the lands from the United States. Lewis v ... McClure, 8 Or. 273; Kaler v. Campbell, 13 Or ... 596, 11 P. 301; Tolman v. Casey, 15 Or. 83, 88, 13 ... P. 669; Speake v. Hamilton, 21 Or. 3, 26 P. 855; ... ...
  • Union Mill & Mining Co. v. Dangberg
    • United States
    • U.S. District Court — District of Nevada
    • May 24, 1897
    ...Co., 17 Colo. 146, 28 P. 966; Ft. Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1033. In Oregon: Kaler v. Campbell, 13 Or. 596, 11 P. 301; Simmons v. Winters, 21 Or. 35, 27 P. 7; v. Hamilton, 21 Or. 3, 26 P. 855; Hindman v. Rizor, 21 Or. 112, 27 P. 13. In Utah: Munroe......
  • Clough v. Wing
    • United States
    • Arizona Supreme Court
    • February 20, 1888
    ...4 Colo. 100; Canal Co. v. Hoyt, 57 Cal. 44. See Lux v. Haggin, (Cal.) 4 P. 919; Judkins v. Elliott, (Cal.) 12 P. 116; Kaler v. Campbell, 13 Or. 596, 11 P. 301. For a discussion of the Mexican law, see Lux Haggin, 69 Cal. 255, 10 P. 705-719; Editorial Notes, (Pomeroy,) 1 and 2 West Coast Rep......
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