Mace v. Mace

• Court: Oregon Supreme Court
• Writing for the Court: [40 Or. 587] BEAN, C.J. (after stating the facts).
• Citation: Mace v. Mace, 40 Or. 586, 67 P. 660 (Or. 1902)
• Decision Date: 10 February 1902
• Parties: MACE v. MACE.

67 P. 660

40 Or. 586

MACE v. MACE.

Supreme Court of Oregon

February 10, 1902

Appeal from circuit court, Harney county; M.D. Clifford, Judge.

Action by Homer B. Mace against F.L. Mace. From a judgment for plaintiff, defendant appeals. Modified.

The object of this suit is to restrain the defendant from interfering with the flow of water from Silvies river onto plaintiff's land through an alleged natural channel. Some four or five miles below where the river debouches into Harney Valley it divides into two branches, called respectively the "East" and "West" Fork. From this point down to Malheur Lake the East Fork has a fall of not to exceed 1 1/2 feet to the mile, and its banks are somewhat higher than the land a short distance from the river. The land lying between the forks, known as the "Island,"is naturally irrigated, during the spring freshets, by the water from the river flowing out through natural sloughs or depressions. It is very productive when so irrigated, but valueless without. The defendant owns 160 acres on the East Fork, a short distance below where it branches from the main river; and the plaintiff owns a like quantity of the "Island" land, south of and adjoining that of the defendant, and situated about a quarter of a mile from the East Fork. At the upper end of the defendant's land there is, and has been from time immemorial, a natural depression or slough, through which the water has been accustomed to flow during high water onto plaintiff's land, and from thence gradually finding its way to the river and lake below. In 1888 the defendant, with the permission and consent of the predecessors in interest of the plaintiff, constructed a ditch from a point on or near the south line of the land now owned by plaintiff and onto another tract belonging to him, for the purpose of utilizing the surplus water from plaintiff's land for irrigating purposes, and at the same time put in the bank of the river at the head of the slough a box or flume two feet deep and four feet wide, filling up the depression on either side, and by means of adjustable dams above and below constructed by himself and one Levins, raising the water in the stream so that it flowed out and through the box or flume in greater quantities and later in the season than it was accustomed to do when the river and bank were in their natural condition. In 1898 he replaced this box with a larger one, four feet deep, four feet wide, and sixteen feet long, but no water was ever taken through it, because in the spring of 1899 he caused it to be closed up, and made arrangements to obtain water for irrigation on his lower tract by means of a ditch tapping the river further down. This suit was commenced in 1899 to prevent defendant from interfering with the flow of water through the slough or depression referred to. The complaint alleges, in effect, the facts as above stated. The answer denies its material allegations, except plaintiff's title, and avers that what plaintiff asserts to be a natural slough is nothing more than a ditch made by the defendant for the purpose of turning water through and over the plaintiff's lands and onto the lands owned by him below. The court found that the slough or depression referred to was and is a natural water course, and that plaintiff was entitled to have such a quantity of water flow through it as would naturally flow through the headgate put in by the defendant in 1898, when raised four inches above the bottom of the flume, and entered a decree to that effect giving the plaintiff the right to enter upon the lands of the defendant at any and all times to repair the headgate and to regulate the flow of water through the same, and, if necessary, to construct a new one in lieu thereof. From this decree the defendant appeals.

L.R. Webster, for appellant.

G.W. Parrish, for respondent.

BEAN, C.J. (after stating the facts).

There are substantially but two questions presented by the record: (1) Whether the depression or slough near the upper line of defendant's land is a natural water course and (2) if so, to what relief is the plaintiff entitled? Upon the first question there is considerable testimony. It is substantially agreed, however, by the witnesses on both sides that from time immemorial there has...