Moore v. United Elkhorn Mines
| Decision Date | 11 March 1913 |
| Citation | 130 P. 640,64 Or. 342 |
| Parties | MOORE et al. v. UNITED ELKHORN MINES et al. |
| Court | Oregon Supreme Court |
On petition for rehearing. Denied.
For former opinion, see 127 P. 964.
In the able brief accompanying their petition for rehearing, counsel question much of the reasoning in the opinion of the lower court, which was adopted as the opinion of this court. As we expressly stated, we did not commit this court to the adoption of all the conclusions reached by the lower court and our opinion may therefore be treated more as a concurrence in the result there reached rather than in the expressions therein employed. We do not consider the question of nonuser of a water right to be involved in this case. Plaintiffs own no land, no ditch, and no water right. They found upon the reserved lands of the United States a reservoir built by defendant's grantor before the land was reserved, and which, under the laws of the United States defendant alone could be permitted to maintain without a new permit from the government, which permit they did not obtain. Defendant, though not using the reservoir has paid all the taxes that have been demanded upon the property, and, beyond the fact of failure to use it, has otherwise shown an intent to retain it for use in the future. The position of the parties stands thus: The defendant's grantor had lawfully built upon government land a reservoir. As against every one but the government, it was the owner of the structure. It is not a right or a site that is in controversy, but a concrete, tangible thing, composed of earth, wood, stones, and iron, and costing five thousand real dollars. Plaintiffs, without permission from the government have entered upon its forest reserve and seized this valuable structure. They have built no reservoir, and have no reservoir site. They say to the defendant: "We have seized this property which cost you $5,000, and we intend to sell it for $4,500; and because you dare to whimper as to the injustice of such a proceeding we will ask a court of equity a court of conscience, to quiet our title, and compel you to pay the costs as a penalty for protesting." Equity will never lend its aid to such a transaction. There are very ancient injunctions against a man's coveting or taking that which belongs to another, and we are still cognizant of the time-honored direction to do unto others as we would that others should do unto us. There is...
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