Nevada Ditch Co. v. Bennett

• Decision Date: 29 June 1896
• Citation: 30 Or. 59,45 P. 472
• Parties: NEVADA DITCH CO. v. BENNETT et al. [1]
• Court: Oregon Supreme Court

45 P. 472

30 Or. 59

NEVADA DITCH CO. v. BENNETT et al. ^[1]

Supreme Court of Oregon

June 29, 1896

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

Action by the Nevada Ditch Company against George E. Bennett and others to determine the quantity and priority of plaintiff's appropriation of water from the Malheur river, and to restrain defendants from interfering with its use. From the judgment and decree of the circuit court plaintiff and certain defendants appeal. Modified.

This is a suit instituted August 15, 1893, for the purpose of establishing the date and extent of plaintiff's appropriation of water from the Malheur river, in Malheur county, Or., and to enjoin the several defendants from in any way using the waters of said stream so as to interfere with the full and free use of its appropriation. The Malheur river is a perennial, nonnavigable stream, taking its rise in Harney county, Or., having for its tributaries what are known as the "North Fork" and "Middle Fork" of the Malheur river. Its general course is northeasterly across the county of Malheur until it empties in the Snake river. The Malheur valley contains a large body of arid lands, but arable and productive with the use of water. Above the main valley are to be found several small valleys, subject to irrigation from the river or its tributaries. These lands, in their natural state, are generally covered with a growth of sagebrush, and what is commonly termed "greasewood," among which is produced native grasses. The most prevalent is the bunch grass, but in many places upon the lower lands, and especially where water is wont to stand until late spring, there is produced a native grass commonly known as "rye grass," and at other places native grasses of different kinds are produced, with moisture, in such abundance as that they may be cut and cured for hay, and are extensively used as feed for stock. The plaintiff's ditch is the lowest on the river, making its diversion from the left bank in section 21, township 18 S range 45 E. Then follow the defendants' ditches, in the order of their points of diversion: First, the Sand Hollow Company's ditch, taking its water from the left bank in section 15, township 19, 44 E.; second, the Gillerman-Froman ditch, with point of diversion at the right bank in section 8 of same township; third, the Eastman Bros. & Ballentine ditch, diverting from left bank in section 3, township 19 S range 43 E.; fourth, the Malheur Farmers' Irrigating Company's ditch, diverting from the right bank in section 33, township 18 S., range 44 E. Above these come, in their order, the Pacific Live-Stock Company's ditches, four in number: First, the Harper's Ranch ditch, diverting from the left bank of the main stream in section 13, township 20 S., range 41 E.; second, the Warm Spring Valley ditch, with point of diversion from left bank of the Middle Fork, in section 13, township 22 S., range 36 E.; and, third, the Agency ditch west, and Agency ditch east,--the former diverting from the left bank, and the latter from the right bank, of the North Fork of the Malheur river,--both in the N.E. 1/4 of section 4, township 19 S., range 37 E. There are other ditches, but they belong to parties who have defaulted. The defendants the Sand Hollow Ditch Company, Eastman Bros. &amp Ballentine, the Malheur Farmers' Irrigating Ditch Company, and the Pacific Live-Stock Company, by their several answers, put in issue the material allegations of the complaint touching appropriation, use, priority, etc., and for further and separate defenses set up their several appropriations, claiming priority therefor as to plaintiff, and pray that the complaint be dismissed, and for costs and disbursements. The Gillerman-Froman Ditch Company interposed a like answer, with the additional allegation that its appropriation is not only prior in point of time to that of plaintiff, but is also prior and superior to any claim of appropriation of any of the other defendants, and prays that their appropriation be established, and declared prior and superior to all others. The cause was referred to the Honorable S.A. Lowell to take the testimony and report his findings of fact and law; and the decree is based entirely upon his findings, except in so far as it relates to the amount of plaintiff's earlier appropriation. In settling the priority of appropriations, it declares that the Pacific Live-Stock Company is entitled to the first, through its Agency ditches, to the extent of 750 inches, miners' measurement; that plaintiff has the second, of 885 inches, and that the appropriations through all the other ditches mentioned are subordinate to these appropriations; that in 1888 plaintiff's appropriation was increased to 3,037 inches, but that, as to the increase, it has priority over the Pacific Live-Stock Company's Warm Spring Valley ditch only. The decree enjoins the diversion of water, except as in accord with the rights of the parties thereby ascertained. From this decree the plaintiff, the Gillerman-Froman Ditch Company, and the Sand Hollow Ditch Company appeal. The respondents objected in the lower court to any decree determining the priorities as between themselves.

The Nevada Ditch Appropriation. In the early summer of 1881, C.W Mallett, I.H. Adams, and W.R. Lee came into the state of Oregon, from Nevada, in search of homes for themselves and families, expecting to settle upon government lands, with the purpose of finally acquiring title thereto. Having come upon the arid lands of the Malheur valley, they conceived a scheme of constructing a ditch through which to provide water for the irrigation of such lands accessible thereto as they and others should take up; all the lands of the valley being then vacant, and subject to settlement, except such as had been selected by the Willamette Valley & Cascade Mountain Wagon-Road Company. They were impressed with the idea that they could acquire from the government, each, a section and a half of land, under laws providing for the sale and disposition of the public domain. The scheme comprehended an early settlement of that particular portion of the valley, and the upbuilding of a reasonably populous farming community. Other home seekers were even then depending in a great measure upon their judgment, in the selection of suitable locations for future habitation. So that, in view of these consideration, Mallett, Adams, and Lee determined to construct the contemplated ditch, and in pursuance of such determination on July 12, 1881, posted a notice at the point of their intended diversion, claiming an appropriation of 8,000 inches of the water of Malheur river for agricultural and milling purposes, giving generally the route and terminals of the proposed ditch, and, as soon thereafter as practicable, caused a duplicate of the notice to be filed and recorded in the county clerk's office of the proper county. Prior to posting the notice the parties had run a preliminary line of survey along the proposed route, to demonstrate its feasibility, and had located, each, a section and one-half of land under the ditch, with a view of acquiring title thereto; but eventually Mallett acquired title from the government to only one-half of section 20, township 18, range 46 E., and Adams to one-half of section 24, in township 18, range 45 E., but Lee never acquired title to any of the land so located by him. Within a few days after the posting of said notice, one G.W. Blanton, with his family, including two sons, James and John, visited the valley, and, being desirous of settling therein, applied to Mallett, Adams, and Lee for an interest in their appropriation, and thereupon bargained for a one-fourth interest; and soon thereafter, on July 21, 1881, all four of them entered into a mutual agreement whereby it was provided that Mallett should construct the first section, or about two miles, of the ditch, in consideration of $2,400--each to contribute in money or labor to the extent of one-fourth thereof, and that, in case either should fail to so contribute his full proportion, he should forfeit his interest in the ditch to such of the others as should complete it. The agreement was reduced to writing, but, by an oversight, was signed only by Mallett, Adams, and Lee. Blanton, however, in March, 1885, after the completion of the ditch, received a deed from the parties so signing the agreement to a one-fourth interest therein. A permanent survey was provided for, and accordingly made by one C.M. Foster, in August, for the distance of about 10 miles, commencing at the point of diversion as claimed in the notice; the first section, of two miles, being located upon a grade of 3.20 feet to the mile, and the remaining or second section upon a grade of 2.16. The ditch was subsequently constructed practically upon this line of survey. Mallett and Blanton, with others to help them, began work in the construction of the ditch soon after the permanent survey was made by Foster. Adams and Lee in the meantime had gone to Nevada for their families, and in November the former returned. Lee did not return, but one J.A. Walters came, by arrangement with him, to erect a house upon his located land, and to assist in his stead with the construction of the ditch. Prior to his departure, Lee paid Mallett $60, to be applied in part payment of his share of the expense of construction. By this time C.H. Brown, a friend of Mallett's, between whom there had been a previous understanding in regard to removing to the valley, should a suitable locality be found, had come to establish a home in the vicinity. Thenceforth Mallett, Adams, Blanton, and Brown pushed the work of construction throughout the winter, as the weather would permit. In the spring these parties were joined in...