Neil v. Tolman

• Citation: 12 Or. 289,7 P. 103
• Parties: NEIL v. TOLMAN and others. (Two Cases.)
• Decision Date: 19 May 1885
• Court: Oregon Supreme Court

7 P. 103

12 Or. 289

NEIL v. TOLMAN and others. (Two Cases.)

Supreme Court of Oregon

May 19, 1885

Appeal from Jackson county.

J.A Neil and George H. Williams, for appellants.

W.K Hanna, John Kelsay, and C.B. Bellinger, for respondents.

LORD, J.

These suits, being similar, were consolidated and tried together the evidence being applicable to both cases. They were brought to enjoin the defendant from diverting the water of Neil or Bear creek.

The complaint in the case of Claiborne Neil alleges in effect that the plaintiff is the owner of certain land in Jackson county, which lies along Neil creek, and embraces both banks and the channel of such creek; that the plaintiff is entitled to the use of all the water of such creek for irrigation watering of stock, and for domestic purposes, and that during the summer months he needs all such water therefor; that he has so used the water since 1855, except when wrongfully deprived of it by the defendants; that the defendants have a ditch leading from a point on Neil creek about one mile above plaintiff's land, along the foot of the hills and away from said stream about two miles to Clayton creek; that by means of such ditch defendants divert the water of Neil creek away from and around plaintiff's land, and use up and waste such water in irrigating several farms, so that it never returns to said Neil creek; that at no time prior to 1875 did defendants use more than 60 inches of water through such ditch, but that since that date defendants have diverted more than that quantity, and that during the last three years they have diverted all the water during the summer months except about 15 inches, and have diverted during said three years more than 150 inches, under a 6-inch pressure, and are now diverting nearly all of the water of said creek, and plaintiff has now no water for irrigating, and his crops and orchards are suffering from the want thereof; that defendants threaten to continue such diversion, etc.; that plaintiff has always objected to and protested against such diversion; yet the defendants have by force and threats persisted therein.

The complaint in the second case--that of Leander Neil and wife--is, in effect, the same as that in the case of C. Neil.

The answer in the case of C. Neil denies plaintiff's allegations as to his right to the use of all the water of Neil creek, and denies his right to use, or that he needs any of such water, except so much as remains in said creek after the defendants have taken therefrom so much as they are entitled to, which amount is stated in a subsequent part of the answer; denies the continuous use alleged by plaintiff. The answer denies all the other allegations of the complaint, except that as to the ownership by plaintiff of the land described, with certain qualifications which appear in the affirmative allegations of the answer.

The answer alleges, affirmatively, that in the year 1852 the ditch mentioned in the complaint was constructed by the defendants and their grantors for irrigation and other purposes, and that they and their grantors have had the continuous and uninterrupted use and enjoyment of the water so taken by them adversely to plaintiff, and all other persons, too, and until they were enjoined by this court in 1883, and that they have had the use of said ditch for more than 30 years last, before the commencement of this suit, and that they diverted a part of said stream and not the whole of it. The answer further alleges that defendants diverted by their said ditch not less than 160 inches of water by its natural flow, and under no other pressure than a fall of three-fourths of an inch to the rod. That since the year 1867 they have diverted water in said ditch from said creek as follows: From January 1st to August 15th, 160 inches; from August 15th to September 20th, 100 inches; and from September 20th to January 1st, 60 inches, and no more, by its natural flow through a ditch having a fall of three-fourths of an inch to the rod, and no other pressure and no greater quantity than herein stated. The answer further sets up a former adjudication of the same matter, by decree of injunction rendered by the circuit court of Jackson county, Oregon, on June 16, 1873. All the material allegations in the answer are denied by the replication.

The questions raised and contested by the pleadings in this suit are: (1) Did the defendants acquire any right as against plaintiff to divert the water by reason of prior appropriation? (2) Have they acquired any title by prescription from adverse use? (3) Was there any former adjudication which can estop the plaintiff in this suit? Our examination of these defenses will be in the inverse order in which they are here presented, and will extend only so far as the decision of the cases may require.

The first inquiry, then, will be: Has there been a former adjudication which estops the plaintiff? In June, 1873, the defendants began a suit in equity, in the circuit court of Jackson county, to restrain the plaintiff Neil from diverting the water of the ditch in question. The complaint in that case particularly described the ditch of which it is alleged they were the owners, and that said ditch and the waters thereof were necessary for the irrigation of the meadows, orchards, and grain crops of the plaintiffs, and for the use of their farms, and that the defendant at divers times had broken said ditch and diverted the water therefrom, so as to prevent the plaintiffs from the enjoyment and free use of the benefit thereof, and he threatened to continue so to do. The plaintiffs prayed that the defendant might be forever restrained from breaking or molesting the ditch, and from diverting the waters thereof. The record shows that the defendant was duly served with process, but made default, and a decree was rendered in accordance with the prayer of the complaint. That the ditch in that and this case is the same identical ditch is not disputed. In both cases the facts show that the ditch tapped and received its supply of water from Neil or Bear creek, which was conducted by means of it to the farms of the plaintiffs, for the purposes of irrigation, and which otherwise would have flowed down the channel of the creek through the farm of the present plaintiff. This is necessarily so, from the facts as stated, and renders all discussion of the water and ditch separately, considered as applied to the rights sought to be established and the injury prevented, as idle and unmeaning. The object of the former suit was plainly to prevent the plaintiff Neil from diverting and using the water conducted from Bear creek by this ditch, and to protect the defendants in the use of such water thus derived for the purposes of irrigation. The object of the present suit is to prevent the defendant from diverting the waters of Bear creek by means of the same ditch for the uses of irrigation, and to protect the plaintiff in the use of such water as the riparian proprietor. In either case, the right of the plaintiff to the water rested upon the same principle, and the gist of the suit then and now is to determine the right to this water.

The record discloses that the diversion of the water from Bear creek has been for years the subject of contention and dispute. Prior to the suit instituted in 1873, the plaintiff claimed that the defendants had no right to take the water from the creek and run it in this ditch to irrigate their farms; that he was entitled to have the water of the creek flow down its channel as a riparian owner; and it was evidently in assertion of his right as such that he broke the ditch and turned the water back where he conceived it lawfully belonged. On the other hand, the defendants claimed that they had such...