Minton v. Coast Property Corp.

• Decision Date: 25 June 1935
• Citation: 46 P.2d 1029,151 Or. 208
• Parties: MINTON v. COAST PROPERTY CORPORATION et al.
• Court: Oregon Supreme Court

46 P.2d 1029

151 Or. 208

MINTON v. COAST PROPERTY CORPORATION et al.

Supreme Court of Oregon

June 25, 1935

In Banc.

Appeal from Circuit Court, Lincoln County; B. L. Eddy, Judge.

Suit by Sadie Minton against Coast Property Corporation, George E Frost, and others. From that part of decree for plaintiff affecting water rights, and entering judgment for costs named defendants appeal.

Reversed with directions.

BAILEY and KELLY, JJ., dissenting.

Ralph Hamilton, of Portland (Bronaugh, Hamilton, Bynon & Bronaugh of Portland, on the brief), for appellants.

F. H Greenman, of Portland, for respondent.

CAMPBELL Chief Justice.

The Coast Property Corporation, an Oregon corporation, is now and for many years last past, it and its predecessors in interest have been the owners of the S.W. 1/4 of the S.W. 1/4 of section 23, Tp. 14 S., R. 12 W., WM., Lincoln county, Or. On this land two springs or seepages arise. A portion of the land slopes somewhat abruptly to the west. Some distance up the hill, two springs or seepages arise, the waters from which seep or ooze through brushy, swampy ground and unite a short distance from their source and form a stream at least during the wet season. It would appear as if this part of the land is in the form of an inclined plane considerably elevated at the end where the springs and seepages arise. There is no gully or canyon through which the waters from the springs and seepages flow.

Plaintiff is the owner of a parcel of land, 7.3 acres, lying in sections 22 and 23, Tp. 14 S., R. 12 W., WM., adjoining the said tract belonging to the Coast Property Corporation on the west at a lower level.

On August 15, 1925, B. F. Felger, plaintiff's predecessor in interest, filed an application in the office of the state engineer for a permit to appropriate .23 of a cubic foot per second of the water from said springs and seepages for domestic and irrigation purposes. On April 16, 1927, he filed another application on the same water for a permit to appropriate .5 of a cubic foot per second to supply fishponds. Both applications were approved by the state engineer and permits granted. Thereafter said B. F. Felger built a small dam on the Coast Property Corporation's land and laid a pipe over said land to the tract now owned by plaintiff and used the water for the purposes designated in his permit.

On July 12, 1928, certificates of water right were issued by the state engineer confirming said permits. The application for the permits reads as follows: "I *** do hereby make application for a permit to appropriate the following public waters of the State of Oregon subject to existing rights. ***"

Plaintiff by mesne conveyances became and now is the owner of the parcel of land owned by the said Felger and succeeded to whatever rights that may have been obtained by virtue of said certificates of water right.

Plaintiff brought the instant suit to quiet title to her 7.3-acre tract of land claiming that the water right represented by said certificates was appurtenant thereto and sought to have her title to such appropriation of water decreed by the court as such an appurtenant.

Appellants and the other defendants were made parties to the suit. None of defendants, except appellants, are interested in this appeal.

Defendant Coast Property Corporation filed an answer and disclaimed any claim or interest to plaintiff's 7.3-acre tract of land, but denied that plaintiff had any right or title to the water or the use thereof attempted to be appropriated by said certificates or that such waters or the use thereof were appurtenant to plaintiff's land.

For a further and separate defense, it alleged, in substance, ownership by itself and its predecessors in interest in the springs and seepages, together with the land upon which they arose and from which the water was attempted to be appropriated. It further alleged that during all times prior to December, 1931, the legal title to the said land was in the Lumberman's Trust Company; that on said date the Lumberman's Trust Company conveyed said land to this defendant which has been the owner ever since; that during the time that said Lumberman's Trust Company held the title to the said land, one George E. Frost was in charge of said property as attorney in fact for the real owner; that said Frost had no authority to transfer any interest or grant any easement in said land or any of the appurtenances thereto; that during said time said B. F. Felger applied to said Frost for permission to lay a pipe across said lands to said springs for the purpose of conveying the waters to what is now plaintiff's property; that said Frost informed said Felger that he had no authority to grant said permission to take the water or to lay a pipe over said land, but did permit said Felger to lay said pipe line with the understanding and agreement that said permission was revocable at any time; that thereafter said Frost revoked said permit, but that plaintiff, who is said Felger's successor in interest, has refused to remove said pipe line and claims to be an appropriator of the water of said springs and seepages with the right to divert the same from the premises on which it arises.

Upon trial, the circuit court entered a decree which, after quieting plaintiff's title to her 7.3-acre tract of land and making some other provisions from which no appeal is taken and which are immaterial to the decision of this case, further decreed as follows:

"It is further ordered, adjudged and decreed that as appurtenant to the above described real property, the plaintiff is entitled to the right to the use of the water from a small stream arising upon the S.W. 1/4 S.W. 1/4 of Section 23, in Township 14 South, Range 12 W. W. M., as follows: ***

"The use of the said water under the above mentioned Water Right Certificates is appurtenant to the lands of the plaintiff, to which her title is quieted under this decree, and is limited to the uses specifically stated in the said Water Right Certificates, and to the volume of water permitted thereunder. The said Water Right Certificates are both in connection with the same source of supply, and the water under the same is diverted by the same dam, and transmitted through the same pipe line. The source of supply is a small stream originating upon the said S.W. 1/4 S.W. 1/4 of Section 23, in Township 14 South, Range 12 W. W. M.

"It is further ordered, adjudged and decreed that the plaintiff and her predecessors in interest are without license, easement, right of way or any right whatsoever, in, to, or across the S.W. 1/4 S.W. 1/4 of Section 23, in Township 14 South, Range 12 W. W. M., for the purpose of establishing a diversion dam, or for the purpose of installing and/or maintaining a pipe line thereon, though plaintiff and her predecessors in good faith claimed an easement for such purposes from one without authority to grant the same.

"It is further ordered, adjudged and decreed that this suit, be, and is hereby dismissed as to the defendants, Myrtle Helmick and Charles D. Helmick, her husband, without costs to either party."

From the part of the decree affecting the water right and entering judgment for costs, the Coast Property Corporation and George E. Frost appeal.

Let it be understood at the outset that the question presented involves the attempted appropriation of water from privately owned lands, and in no way concerns waters on public lands.

Both respondent and appellants suggest that the main question presented by this appeal is what construction should be placed upon section 47-1401, Oregon Code 1930, which reads as follows: "All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, or seepage waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the right to the use of such waters."

If the waters arising on the Coast Property Corporation's land were subject to appropriation by one not the owner of the land at the time respondent's predecessor made application to appropriate, or, if being subject to appropriation, a valid appropriation was made, then respondent has a right to the use of said waters, but, if not so subject to appropriation, or if no valid appropriation was or could be made because the lands on which the appropriation was sought to be made were not unoccupied public lands, but were privately owned lands upon which plaintiff's predecessor had made an unauthorized entry and erected a dam and installed a pipe line to conduct the water therefrom without defendants' knowledge or consent, then respondent and her predecessor in interest took nothing by virtue of said application and certificates of water right.

The Legislature of this state has declared that "all water within the state from all sources of water supply belongs to the public." Laws of 1909, c. 221, p. 370 Oregon Code 1930, § 47-401.

In 1924, the Constitution of the state of Oregon was amended to read: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use." Constitution of Oregon, art. 1, § 18.

It will be observed that this constitutional provision,...