Mace v. Mace

• Court: Oregon Supreme Court
• Writing for the Court: [40 Or. 591] BEAN, C.J.
• Citation: Mace v. Mace, 40 Or. 586, 68 P. 737 (Or. 1902)
• Decision Date: 28 April 1902
• Parties: MACE v. MACE.

68 P. 737

40 Or. 586

MACE v. MACE.

Supreme Court of Oregon

April 28, 1902

On petition for rehearing, and motion for modification of decree. Overruled.

For former opinion, see 67 P. 660.

BEAN, C.J.

The defendant moves for a modification of the decree heretofore entered, so as to permit him to raise the bank of the stream at the place where the cut to be made whenever he raises the water by artificial means; the purpose being to permit him to confine the water within the channel when it is raised by means of the dams erected by himself and Levins. In support of the motion, it is said that a great portion of the time during the irrigating season the water will not be high enough to run out through the natural channel; that during such times defendant can use it for irrigating his riparian lands by raising it by means of artificial dams but in order to do so it will be necessary to close the cut referred to during the times he is so using the water. This point was not developed by the testimony, nor does the record show, except in a general way, at what time of the year the water will naturally flow down to plaintiff's land. The court below found that annually, from about the...