Low v. Schaffer

• Decision Date: 28 June 1893
• Citation: 24 Or. 239,33 P. 678
• Parties: LOW v. SCHAFFER et al.
• Court: Oregon Supreme Court

33 P. 678

24 Or. 239

LOW v. SCHAFFER et al.

Supreme Court of Oregon

June 28, 1893

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

Suit by Leonard Low against Logan Schaffer and Amanda L. Schaffer to enjoin defendants from diverting the water of a certain creek. Decree for defendants, and plaintiff appeals. Reversed.

The other facts fully appear in the following statement by MOORE J.:

This a suit to enjoin the defendants from diverting the waters of Hill creek, in Baker county, Or. It appears that the waters of the creek flow through defendants' land, and thence in a northeasterly direction through the plaintiff's adjoining land; that about one-half of the volume of these waters is supplied from springs on defendants' land; that about 1866 plaintiff settled upon a tract of government land and, after it had been surveyed and platted, he obtained the United States patent therefor; that at the time of his settlement he dug three ditches from said creek, and diverted and used all the water thereof to irrigate his arid land, and has ever since continued to so use it, except when diverted by others; that about 1876 one Martin Hill settled upon a tract south of and adjoining the plaintiff's said land built a house and some fencing thereon, dug ditches from said creek, and diverted and used the water to irrigate the cultivated portion of it, and continued to use the water for that purpose until about 1800, when he transferred his possessory right and improvements upon said land to plaintiff, who continued to irrigate it by the water of said creek until about 1884, when, by a bill of sale, he transferred the possessory right and improvements on said land acquired from Hill to one Thomas Huffman; that Huffman went into possession of said premises, diverted and used the water of said creek, and irrigated the land therewith until about 1885, when one Oscar Hindman contested his right thereto before the local land officers, and as a result of the contest secured the land, and obtained a patent from the United States therefor; that Hindman diverted and used the waters of said creek, and also diverted and used the water from three springs on said tract, which were tributaries of said creek, to irrigate his land, and in May, 1890, and after he had made final proof in support of his claim, he conveyed it to the defendants, who went into possession, and have since that the time diverted and used the water appropriated by Hindman to irrigate their land; that the lands of both plaintiff and defendant are dry and arid, and without water are nearly valueless, but by irrigation are made to produce excellent crops; that another stream, known as "Alder Creek," flows through plaintiff's land, and serves to irrigate the whole tract except about 10 to 15 acres which has been irrigated from the water of Hill creek. The plaintiff alleges a prior appropriation of the water of Hill creek; that he is a riparian proprietor on said stream; and that the water thereof is necessary for his use. The defendants, after denying the allegations of the complaint, for a separate defense allege an adverse user of the water of said creek by themselves and their grantors and predecessors since 1876; and for a further separate defense allege that plaintiff was one of their grantors and predecessors in interest, and that such water was not necessary for his use, but that he desired it for speculation. The reply denied the allegations of new matter in the answer, and, the issues having been completed, the testimony was taken by a referee, and the court found that the equities were with the defendants, and decreed to them 20 inches of the water of said creek, from which decree the plaintiff appeals.

D.D. Williams, for appellant.

H.E. Courtney, for respondents.

MOORE J., (after stating the facts.)

The evidence conclusively shows that plaintiff was the prior appropriator of the water of said creek, and that he had diverted and used it for more than 10 years prior to Hill's diversion; and, as a consequence, he is entitled to the use thereof, unless he has lost it by an adverse user or by abandonment. To constitute an adverse user of more than 10 years the defendants must necessarily tack the use of Huffman to that of Hindman, their grantor. Continuity of use is an essential element of an adverse title. When several persons enter upon land in succession, the several possessions cannot be tacked so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seisin of the true owner is restored, and an entry afterwards by another, wrongfully, constitutes a new disseisin. Melvin v. Proprietors, 5 Metc. (Mass.) 33. The possession of a landlord and his tenant, and ancestor and his heirs, a vendor and vendee, may be tacked to complete the bar of the statute of limitations. Rowland v. Williams, (Or.) 32 P. 402. If there has been any break or interruption in the use, the several uses cannot be tacked so as to make it continuous. If Hill's use in 1876 had been adverse to plaintiff's claim, when in 1880 he transferred his possessory right and improvements to the plaintiff he thereby restored plaintiff to his original claim. Admitting that plaintiff transferred his possessory right to Huffman more than 10 years prior to the commencement of the suit, Hindman could not tack his possession to that of Huffman, since there was no privity of interest or of estate between them; and Hindman did not take the title from Huffman as a tenant, heir, or vendee, but by an independent title from the government, and hence the defense of adverse possession must fail.

A prior appropriator of the water of a stream, who has a possessory right to the real estate benefited thereby, may, by a parol transfer, assign his interest in the land as well as his right to the use of water appurtenant thereto. The water appropriated for irrigation is as much a part of the improvements as his buildings and fences, and the transfer of the possessory right to the land carries with it the water so appropriated, unless expressly reserved. Hindman v Rizor, 21 Or. 113, 27 P. 13. The verbal sale and transfer of his water right by a prior appropriator operates ipso facto as an abandonment thereof, ( Smith v. O'Hara, 43 Cal. 371.) and he could not thereafter reassert his original right to the same against another appropriator, (Pom.Rip.Rights, § 88.) The plaintiff could not be deprived of his use unless there was a manifest intention upon his part to abandon it, and this intention must be determined from his declarations and acts in relation thereto. Dodge v. Marden, 7 Or. 460. It appears that Hill had diverted and used the water from Hill creek to irrigate his crops, and that plaintif...