McCoy v. Huntley

• Decision Date: 26 December 1911
• Citation: 60 Or. 372,119 P. 481
• Parties: McCOY et al. v. HUNTLEY.
• Court: Oregon Supreme Court

119 P. 481

60 Or. 372

McCOY et al. v. HUNTLEY.

Supreme Court of Oregon

December 26, 1911

Appeal from Circuit Court, Wheeler County; H.J. Bean, Judge.

Suit by G.J. McCoy and another against Charles Huntley. Decree for complainants, and defendant appeals. Affirmed.

This is a suit to restrain defendant from diverting and using more than one-half of the waters of Pine creek in Wheeler county. Plaintiffs, whose land adjoins that of defendant lower down the creek, claim in substance by their complaint that in 1883 William Clarno, their predecessor in interest, appropriated 30 inches, miner's measurement, of the waters of Pine creek for the purpose of irrigating his land; that such appropriation was prior to any appropriation by defendant that defendant, in the years 1903, 1904, 1905, and 1906 during the season of low water diverted all the water of the creek upon his own land, without plaintiffs' consent, and refused to turn back into the stream any portion of the water so diverted, but used it unnecessarily and wastefully, and suffered it to sink upon his own land, leaving plaintiffs without water for irrigation or for domestic purposes. It is alleged that one-half of the water of the creek used all the time, or all of the water used alternately week about, upon the land of plaintiffs and defendant, is sufficient for the needs of each. A preliminary injunction was issued, requiring defendant to alternate with plaintiffs in the use of the water week about until the final hearing. The defendant answered, claiming a prior appropriation by himself and continued use by him of all the water of Pine creek in the dry season when necessary, and denied a wrongful diversion or wasteful use. Upon the hearing, the court, after viewing the premises, found for plaintiffs and decreed to them the right to alternate week about with defendant in the use of the water, and from this decree defendant appeals. Other facts appear in the opinion.

Jay Bowerman, for appellant.

W.H Wilson (H.H. Hendricks, on the brief), for respondents.

McBRIDE J. (after stating the facts as above).

It appears from the testimony that the land occupied by plaintiffs was originally settled upon about the year 1871 by Harrison Huntley, a brother of defendant, and that about the same time defendant settled upon the lands now occupied by him. While the testimony is not clear, we conclude that the first appropriation was made for the purpose of irrigating the Harrison Huntley tract, that is to say, a small portion of it, and later the land of defendant. Pine creek, at that time, was a stream running near the level of the adjoining land, and it is probable that a portion of the land to some extent was subirrigated by the natural percolation of the waters of the stream. Later a cloud-burst or a succession of such deepened the channel, so that the water in the stream is from 10 to 20 feet below the level of the adjoining land, and subirrigation is not possible, and irrigation by means of dams is much more difficult than when the place was first settled. For a time the two Huntleys used the same ditch, and there does not seem to have been any scarcity of water on either place for several years. In 1879 it transpired upon survey that the land occupied by Harrison Huntley was a school section, and he conveyed his possessory right to Charles Huntley, who, on January 14, 1879, received a deed from the state to the lands now occupied by plaintiffs. In 1880 Charles Huntley conveyed a portion of this tract by warranty deed to W. Lair Hill, N.H. Gates, and Frank Clarno, and in 1882 conveyed the remainder of the tract to Hill and Gates by warranty deed. Plaintiffs deraign title...