Moss v. Rose

• Citation: 27 Or. 595,41 P. 666
• Parties: MOSS et al. v. ROSE.
• Decision Date: 20 July 1895
• Court: Supreme Court of Oregon

41 P. 666

27 Or. 595

MOSS et al. v. ROSE.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Malheur county; Morton D. Clifford Judge.

Action by Arthur J. Moss and another against William A. Rose to enjoin defendant from obstructing the flow of water in a ditch. Plaintiffs had judgment, and defendant appeals. Modified.

M.L. Olmstead, for appellant.

Will R King, for respondents.

MOORE J.

This is a suit to enjoin the defendant from obstructing the flow of water in a ditch constructed across his lands. The facts show: That in November, 1881, the defendant settled upon an arid tract of public land, and that prior thereto the plaintiffs had settled upon adjoining tracts. That said lands were thereafter surveyed, and patents duly issued therefor as follows: To the plaintiff Alvin S. Moss for the N.E. 1/4 of section 29; to the plaintiff Arthur J. Moss for the N. 1/2 of the S.E. 1/4 and the S.E. 1/4 of the S.E. 1/4 of said section, and the S.W. 1/4 of the S.W. 1/4 of section 28; and to the defendant for the N.W. 1/4 of section 33,--all in township 25 S., of range 46 E., in Malheur county, Or. That the waters of Carter creek flow in a northerly direction, in a well-defined channel, through the western portion of the defendant's land, and those of Sucker creek, entering the defendant's land at the eastern border, flow in a northwesterly direction, uniting on the land of Arthur J. Moss, near its southern boundary. That in the spring of 1883 the parties above named and one Thomas Waite commenced a ditch at the west side of Carter creek, near the south boundary of defendant's land, and jointly constructed it for a distance of about one-fourth of a mile. That the plaintiffs continued its construction to their lands, and conducted water therein, which they have continuously used in irrigating their said lands, except when prevented from doing so by the defendant. That in October, 1892, the defendant forbade the plaintiffs from entering upon his premises, or appropriating the water of said creek, and thereafter removed the headgate, filled the ditch, and obstructed the flow of water to the plaintiffs' premises, to prevent the continuance of which they bring this suit, and allege that the ditch was constructed and owned by the parties as tenants in common, but that the defendant had abandoned his interest, and pray that he may be restrained from intermeddling with said ditch, or obstructing the flow of the water therein. The defendant, after denying the material allegations of the complaint, alleges that he was the prior appropriator of the waters of Carter creek, at a point about one mile above his land; that the plaintiffs' diversion and appropriation had at all times been by his permission, which he had revoked, and filled the ditch, because of the plaintiffs' failure to keep it in repair. A reply having put in issue the allegations of new matter contained in the answer, the cause was referred to John Wheeler, who took the evidence, from which the court found that the ditch had been constructed by the parties as tenants in common, but that, by reason of the defendant's failure to appropriate the water within a reasonable time, he had abandoned his right to its use; that by such abandonment the plaintiffs became entitled to the exclusive use thereof,--and rendered a decree as played for in the complaint, with $50 damages, and the costs and disbursements of the suit, from which decree the defendant appeals.

A careful examination of the evidence leads us to the conclusion that the court very properly found that there was an agreement, by the terms of which the plaintiffs, in consideration of their labor and expense in constructing the ditch, should have the right to appropriate one-half the water conducted therein, for the purpose of irrigating their lands; and hence the principal question to be considered is whether the defendant, by not appropriating the water till 1890, had abandoned all his interests therein. The ditch having been constructed under an agreement between the parties that each should be entitled to appropriate his share of the waters of Carter creek, rendered the parties tenants in common of the ditch and right of appropriation, and the defendant's property...