Morrison v. Officer
| Decision Date | 11 December 1906 |
| Citation | 87 P. 896,48 Or. 569 |
| Parties | MORRISON v. OFFICER. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Grant County; George E. Davis, Judge.
Suit by Finlay Morrison against Floyd L. Officer. From a judgment in favor of plaintiff, defendant appeals. Reversed, and suit dismissed.
Errett Hicks, for appellant.
Will R King, for respondent.
This is a suit by Finlay Morrison against Floyd against Floyd L Officer to enjoin interference with the use of water issuing from a spring. The facts are that, on December 5, 1894, the state of Oregon executed to the defendant a deed to the northwest quarter of the southeast quarter of section 36 in township 11, south of range 25 east in Grant county, ever since which he has been the owner in fee thereof. The state on February 15, 1901, also entered into a contract with the plaintiff for the sale of the northeast quarter of the southeast quarter of that section, township, and range, and five years thereafter he dug a ditch from a swale on the land last described, and conducted to a part thereof water which he intended to use in irrigating a garden. The defendant thereafter cut two ditches on his land from such swale, and diverted all the water therein, whereupon this suit was commenced, resulting in a decree as prayed for in the complaint, and he appeals.
The testimony shows that a perennial spring issues from the defendant's land at a point about 120 yards from the east line thereof, the water from which reaches a point about 150 yards on the plaintiff's premises where it disappears. Though there is a conflict in the testimony, we think the great weight thereof supports the defendant's contention that the water does not usually appear on the surface, but, issuing from the spring on the side of a hill, it makes its way, without channel or banks, through brush and grass, moistening the ground, for a space about 30 feet in width, the distance mentioned, and that where cattle have made tracks in the damp soil, water may be seen, but it does not flow until confined in a ditch. No controversy exists as to the quantity of water which the spring affords, for each party admits that it does not exceed three-fourths of an inch, miners' measurement. The statute, regulating the use of water, contains the following clause: "Provided, that the person upon whose land seepage or spring waters first arise, shall have the right to the use of such waters." B....
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Fitzstephens v. Watson
...Klamath Development Co. v. Lewis, 1931, 136 Or. 445, 299 P. 705; Henrici v. Paulson, 1930, 133 Or. 222, 223, 293 P. 424; Morrison v. Officer, 1906, 48 Or. 569, 87 P. 896. Where, however, the waters leaving the spring form a watercourse and flow to the land of another the waters in the water......
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Minton v. Coast Property Corp.
...arid regions of the Pacific Coast states and territories, it follows that the right insisted upon does not exist." In Morrison v. Officer, 48 Or. 569, 87 P. 896, 897, court referred to the proviso of the statute now known as section 47-1401, supra, and said: "When a spring furnishes a strea......
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Norden v. State
...undiverted, off of the land on which it arises, either onto the property of another or into another watercourse. Morrison v. Officer, 48 Or. 569, 570, 87 P. 896 (1906) (when the spring produces a quantity of water "so insignificant that a surface stream is impossible * * * the use of the wa......
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Beisell et Ux. v. Wood et Ux.
...upon which it arises, and belongs to the owner of that land. 2 Kinney, Irrigation and Water Rights, 2 ed., section 648; Morrison v. Officer, 48 Or. 569, 570, 87 P. 896; Henrici v. Paulson, 134 Or. 222, 224, 293 P. 424; Klamath Development Co. v. Lewis, 136 Or. 445, 450, 299 P. 705; Skinner ......