McCall v. Porter

• Decision Date: 15 December 1902
• Citation: 70 P. 820,42 Or. 49
• Parties: McCALL et al. v. PORTER et al.
• Court: Oregon Supreme Court

70 P. 820

42 Or. 49

McCALL et al. v. PORTER et al.

Supreme Court of Oregon

December 15, 1902

Appeal from circuit court, Lake county; Henry L. Benson, Judge.

Suit by Cynthia I. McCall and another against James C. Porter and another. Decree for plaintiffs. Defendants appeal. Reversed.

This is a suit to restrain the defendants from interfering with the flow of water through what the plaintiffs designate as the eastern or McCall branch of Buck creek, a natural water course, heading in a spur of the Yampsay Mountains, and flowing in a northerly and easterly direction through Silver Lake valley, in Lake county. Soon after it reaches the valley, it divides into numerous branches, one of which flows through the defendants' land in a well-defined channel, 6 or 8 feet wide and 2 or 2 1/2 feet deep, carrying about 44 inches of water. In the spring or flood time the stream overflows its banks, inundating and irrigating the surrounding country. At other seasons of the year the water is diverted by means of dams and ditches, and thus used for irrigating purposes. The defendants' land is in the W 1/2 of section 4, and the plaintiffs are the owners of the larger part of section 3, lying east thereof. The plaintiffs contend that Buck creek divides into two channels near the upper end of defendants' land, one flowing easterly through land owned by the plaintiffs, and that they have used the waters thereof as riparian proprietors for irrigating purposes during the 14 years last past. In April, 1900, the defendants constructed a rock dam at the head of what the plaintiffs call the eastern channel of the stream, thereby diverting the water therefrom and compelling it to flow down the main channel. The object of this suit is to enjoin the defendants from maintaining such dam or dike, on the ground that it wrongfully and unlawfully interferes with plaintiffs' rights as riparian proprietors. The complaint alleges the plaintiffs' ownership of the land in section 3; that Buck creek is, and ever since the memory of man has been, a natural stream of water; that it divides into two separate and distinct channels at a point on the land of defendants; that the eastern channel thereof runs through and abuts upon all the lands belonging to the plaintiffs; that about the 1st of March, 1900, the defendants constructed a dam at the head of this channel, and thereby prevented the water from flowing down the same,--and prays for the relief above mentioned. The defendants, by their answer, deny that Buck creek divides into two channels at the point designated in the complaint, or that there is a natural stream of water flowing from such point over and across their land, and down onto the land of the plaintiffs, and for an affirmative defense they plead--First, the statute of limitations; and second, in substance, that for more than 17 years prior to the commencement of this suit the defendants, their grantors and predecessors in interest, have been using and occupying the land now owned by them, and during such time they have cultivated it, and by means of irrigation have raised large and valuable crops thereon; that the land is arid, and will not produce crops successfully without irrigation; that the waters of Buck creek naturally flow, when unobstructed, down to, upon, and over their land and naturally irrigate the same; that, in addition to such natural flow, the defendants and their grantors, during the time mentioned, have placed and maintained dams in the banks and along the natural channel of the stream, to assist and increase the flow of water therein, and by this means have used during all the time of the occupancy by themselves and their grantors 300 inches of water for irrigating purposes; that the point mentioned in the complaint as the division of the stream into two separate channels is but a break in the bank, and all that the defendants have ever done to such break was to prevent it from washing out to such an extent as to destroy the natural channel, and thus compel the water to flow over and through their land in its natural channel; that, in addition to the natural irrigation and the use of the water of the stream by means of dams, they have, at stated dates during 1889 and 1890, appropriated therefrom through ditches 30 inches of water for use on their land; that all the appropriations, diversions, and use of the water as alleged in the answer are necessary and required for the successful cultivation of the land, and by means thereof the defendants have been able to raise valuable crops thereon. The reply put in issue the material allegations of the answer, and upon the trial a decree was rendered in favor of the plaintiffs, from which the defendants appeal.

John E Raker, for appellants.

C.A. Cogswell, for respondents.

BEAN J. (after stating the facts).

There are substantially three defenses set up in the answer: (1) That what plaintiffs designate as the eastern or McCall branch of Buck creek is not a natural water course; (2) that their cause of suit is barred by the statute of limitations; and (3) that the defendants are entitled by prior appropriation to all the water that will flow within the banks of Buck creek at the alleged point of division, when the banks are maintained at a uniform height.

The question as to whether there ever was a natural stream of water flowing from the land of defendants down to the land of plaintiffs is difficult to solve from the testimony in the record. The evidence upon that point is conflicting and unsatisfactory. Many of the witnesses testified with a map or plat before them, to which they and counsel referred pointing out and designating certain places thereon; and, while testimony so taken is intelligible to the persons present, it is not always so to an appellate court, compelled to rely upon the record. Mr. Moore, however, a surveyor and engineer of intelligence, who made a careful survey about the time the suit was begun, testified that he found a small ditch or channel, about 2 feet wide and 2 feet deep, leading from the rock dam east for about 9 chains, when it disappeared, and the water spread out over the defendants' meadow in a pond or swale some 4 chains wide and a few inches deep; that about 5 chains further east the water, or a portion of it, gathered into another ditch or channel, perhaps a foot wide, which continued for 4 1/2 chains, when it again spread out over the meadow in a shallow pond or pool 5 or 6 chains wide. About 11 chains further east there was another channel, 2 feet deep and 4 feet wide, formed abruptly, which continued down to the county road that leads north through the center of section 4. He gave no testimony as to the condition of the country from that point on down to the plaintiffs' land, but the county surveyor, called by them as a witness, testified that there was a well-defined channel leading from the county road down through the E. 1/2 of section 4 to the plaintiffs' land. Whether such a water course can be denominated a "natural stream," within the meaning of that term as applied to riparian rights, or whether it is to be considered as a mere break in the bank or highwater channel, is involved in considerable doubt. But it is not necessary to decide that question, as the evidence clearly shows defendants' right by prior appropriation to such of the water as would naturally flow from Buck creek through the ditch or channel described. The land now owned by them was formerly swamp or overflowed land, granted to the state by congress in 1860. About the year 1877 one M.P. Martin made application to the state to purchase the land, and received a certificate therefor, which in January, 1885, he assigned and transferred to W.C. Martin, to whom the state made a deed the same year. At the time the deed was made, and for some time prior thereto, the latter Martin was and had been in possession of the premises, which he had inclosed, and on which he was using the water flowing in Buck creek in the necessary irrigation of the same. ...