McCall v. Porter

• Decision Date: 30 March 1903
• Parties: McCALL et al. v. PORTER et al.
• Court: Oregon Supreme Court

71 P. 976

42 Or. 49

McCALL et al. v. PORTER et al.

Supreme Court of Oregon

March 30, 1903

On rehearing. Denied.

For former report, see 70 P. 820.

BEAN, J.

A careful re-examination of the record has only confirmed the views heretofore expressed. The principal complaint seems to be that the decision is put on a question not in issue; counsel for plaintiffs insisting that the answer does not allege a prior appropriation of the waters of Buck creek by Martin, the defendants' grantor. The defendants, after describing in their answer the lands owned and possessed by them, allege "that the whole of said lands are valuable agricultural and farming lands; that for more than 17 years next preceding the filing of the complaint herein the defendants and their grantors have possessed occupied, cultivated, used, and improved all of the aforesaid lands, and during all of said times have annually harvested therefrom large and valuable crops of hay, grain, and vegetables, and have pastured large numbers of horses and cattle thereon; that the climate in which said lands are situated is arid, and irrigation is necessary thereon during the months of April, May, June, July, August, September, and October of each year, in order to produce thereon a valuable or any crops, and that said months constitute the irrigating season in the district in which said lands are situated; that with proper irrigation said lands yield annually large and valuable crops of the aforesaid staple products, which without such irrigation they would not do, but would become barren, sterile, and worthless; that immediately west of south of said lands there is a spur or branch of the Yampsay Mountains, known as the 'Buck Creek Range,' upon and among which springs and melting snow give rise to and form a stream commonly called 'Buck Creek,' which flows and has flowed always in a north and northeasterly direction to and upon defendants' said lands; that the said Buck creek is the same and identical natural stream described in the plaintiffs' amended complaint herein; that said Buck creek has a natural and well-defined bed and banks to and upon the lands of the defendants herein described, and that the natural channel of said Buck creek from its source reaches and extends to defendants' said lands, and that the waters of said Buck creek naturally flow, when unobstructed in their natural channel, to, upon, and over the lands of the defendants, and naturally irrigate and water the said lands of the defendants, and have so flowed in their natural channel and course ever since the memory of man, and now do in their natural channel flow down said Buck creek to upon, and over the lands of the said defendants hereinbefore described, and that by reason of such natural flow, seepage and percolation, irrigate and moisten and make fertile and valuable the said lands, and that the defendants' said lands are riparian lands on and to the said Buck creek; that, in addition to such natural flow as aforesaid, the defendants and their grantors, at various points and places on their said lands above described, have placed in the natural channel of said Buck creek, at various points on their said lands, small dams, and made head ditches therefrom, to assist and increase the irrigation of said lands, in addition to the natural flow thereof, and thereby have made fertile and valuable and irrigated the said lands with the natural flow of the waters of said Buck creek, and have thus used of the waters of said Buck creek, for the irrigation of their said lands, during...