Low v. Rizor

• Citation: 37 P. 82,25 Or. 551
• Parties: LOW v. RIZOR.
• Decision Date: 28 June 1894
• Court: Supreme Court of Oregon

37 P. 82

25 Or. 551

LOW v. RIZOR.

Supreme Court of Oregon

June 28, 1894

Appeal from circuit court, Baker county; Morton D. Clifford, Judge.

Bill for an injunction brought by Leonard Low against John Rizor. From a decree for plaintiff, defendant appeals. Modified.

This is a suit to enjoin the defendant from diverting the waters of Alder creek, which flows in a natural channel through his land, and thence in an easterly direction, through plaintiff's adjoining land. The facts show that the plaintiff, in 1866, settled upon a tract of unsurveyed public land, and enlarged a ditch thereon, by which the waters of Alder creek had been appropriated by a former occupant of said tract, and in 1868 dug another ditch, and by them has diverted the water from said creek, and appropriated it to irrigate his cultivated land, consisting of about 55 acres of meadow and 5 acres of orchard, which he has since the date of his settlement constantly occupied; that, the township in which said land is situated having been surveyed in 1874, and the plat thereof having been filed in the local land office of the district May 1, 1875, the plaintiff made a homestead filing upon the N. 1/2 of the S.W. 1/4, the S.E. 1/4 of the S.W. 1/4, and the S.W. 1/4 of the S.E. 1/4, of section 34, in township 10 S., of range 42 E. of the Willamette meridian containing 100 acres, and embracing his cultivated land, and on March 1, 1893, received a patent from the United States for said tract; that, about 1862, one C.W. Herman settled upon an adjoining tract of public land, commonly called "Straw Ranch," now owned by the defendant, built a house, and dug a ditch on the south side of said creek capable of diverting about 20 inches of water, and appropriated a part of the water to irrigate a small garden and on May 3, 1864, he conveyed all his interest in Straw ranch to Hiram Huffman, who that year dug another ditch on the north side of said creek, capable of diverting about 50 inches of water, and appropriated a part of it to the irrigation of another garden; that Huffman transferred said ranch to Valentine Gray, who took possession of it, and cultivated the gardens by irrigation, but, being unable to make payment of the purchase price, restored the premises to his said grantor; that a stage company built a house and barn on said Straw ranch, where it kept its stock and a way station, but, having discontinued the station at that place the buildings were, in 1866, sold by one George Atkinson to the plaintiff, who moved them to his own land; that Robert Kitchen was the next occupant of Straw ranch, but from whom he obtained the right of possession, or when he established his residence thereon, are disputed facts of the case; that Kitchen, in 1879, transferred his interest in the premises to S.A. Heilner, from whom the defendant, by mesne conveyances and transfers, acquired possession, on May 10, 1884; that defendant made a homestead filing upon the N. 1/2 of the S.E 1/4, the N.E. 1/4 of the S.W. 1/4, and the S.E. 1/4 of the N.W. 1/4, of section 33, in said township and range, and on July 7, 1891, he obtained the United States patent for said land; that, when defendant took possession, the cultivated portion of Straw ranch consisted of a garden containing about two acres, and, in addition to the old ditches, two others had been dug,--one from Straw Ranch creek, and the other from Kitchen creek, tributaries of Alder creek; that Kitchen and his successors in interest prior to defendant had appropriated about six inches of water to irrigate said garden, and the excess flowing in the ditches was returned to Alder creek, and appropriated by the plaintiff; that the defendant and his predecessors have for more than ten years used the waters of Straw Ranch creek, which furnishes about five inches till about the 1st of July, when it dries up, but that he has not used the water from Kitchen creek more than three or four years; that, in 1890, he irrigated a small garden by diverting the waters of a spring which discharged into Alder creek, and in the following year he dug another ditch from Alder creek, which diverts about four inches of water; that the defendant, since 1884, has increased the area of his cultivated land from two to forty acres, and, with the water so diverted, raises excellent crops of hay, grain, fruit, and vegetables, but, deprived of the use of the water, his land would be rendered nearly valueless. The plaintiff, for cause of suit, alleges a prior appropriation of all the waters of said Alder creek, and an unlawful diversion by the defendant, who, for answer, after denying the material allegations of the complaint, alleges that his grantors and predecessors made the prior appropriation; that he and they have acquired a right to the water of said creeks by an adverse user thereof; and that plaintiff seeks to obtain the water for speculative purposes. A reply having put in issue the allegations of new matter contained in the answer, the cause was referred to J.L. Rand, to take testimony and report the same, with his findings of fact and law thereon; and the referee, having found that defendant and his predecessors had acquired a right by adverse user of all the waters of Straw Ranch creek, that plaintiff was the prior appropriator of the waters of Alder creek to the extent of 65 inches under a 6-inch pressure, and that defendant was entitled to the...