Norwood v. Eastern Oregon Land Co.

• Decision Date: 15 December 1931
• Citation: 5 P.2d 1057,139 Or. 25
• Parties: NORWOOD v. EASTERN OREGON LAND CO. et al.
• Court: Oregon Supreme Court

5 P.2d 1057

139 Or. 25

NORWOOD v. EASTERN OREGON LAND CO. et al.

Supreme Court of Oregon

December 15, 1931

In Banc.

Appeal from Circuit Court, Malheur County; W. W. Wood, Judge.

Action by John Norwood against the Eastern Oregon Land Company and others. From a judgment adverse to it, the named defendant appeals.

Reversed and remanded.

Bruce R. Kester, of Ontario, and J. C. Veazie, of Portland (Veazie & Veazie, of Portland, on the brief), for appellant.

Robt. D. Lytle, of Vale, for respondent.

BELT, J.

This is an action to recover damages for an alleged wrongful diversion of irrigation water from Willow creek in Malheur county. Plaintiff is the owner of land on both sides of Willow creek, and has a water right with a priority of 1871 as to part of his land and a priority of 1873 as to the remainder thereof. It is alleged that this land in its natural state is arid and nonproductive, but, with the aid of artificial irrigation, is capable of producing large crops of alfalfa and other perennial grasses. It is charged that the Eastern Oregon Land Company and its agent the defendant A. D Phelps, on or about April 21, 1919, wrongfully constructed a concrete dam above the property of the plaintiff on Willow creek, and from May, 1919, to and including the month of November, 1924, thereby diverted all of the water from the lands of the plaintiff, to his damage in the sum of $18,112.

The defendants denied the alleged wrongful diversion or that plaintiff has sustained any damage by reason of any ac on their part. As an affirmative defense, it is alleged as a bar to the present action that the plaintiff, in May, 1919 commenced a suit in the circuit court for Malheur county against the Eastern Oregon Land Company, its agent Ivan E Oakes, and George Gombert, then water master for Malheur county, to enjoin the diversion of the waters involved in this action, and, after issue was joined on the facts offered evidence tending to show injury and damage to his premises and crops; that the circuit court dismissed this suit for an injunction, but, on appeal to the Supreme Court, the decree was reversed, and the cause remanded, with directions to allow the writ enjoining the defendants therein from diverting any of the waters of Willow creek in derogation or diminution of the rights of plaintiff. This decree was entered on March 5, 1923. The defendant asserts that the plaintiff in this equitable proceeding could and should have alleged any claim for damages sustained by reason of the alleged diversion of water, and, not having done so, should be precluded from maintaining this action.

As a second affirmative defense, it is alleged that the rights to the use of the waters of Willow creek were adjudicated in a decree of the circuit court entered on June 6, 1916, on mandate of this court-wherein the defendant Eastern Oregon Land Company and the plaintiff were parties-and that their relative water rights were determined therein. It is alleged that, in this decree, the Eastern Oregon Land Company was adjudicated a right to 3.65 second feet with a priority of 1867 for the irrigation of 292.02 acres of land, of which 88.68 acres were situated above the land of plaintiff and the remainder below; that this right was granted by reason of the overflow of said lands, but was "subject to the rights since acquired by adverse user and the like antagonistic to such rights," and that the water diverted from Willow creek should be under the supervision of the water master "in such manner as he may direct." It is further alleged that, on the 20th day of April, 1916, the state water board (superseded by the state engineer), upon application of the Eastern Oregon Land Company, granted to it the right to change, to its lands located above those of plaintiff, the application or use of water thus adjudicated; that the Eastern Oregon Land Company is also owner of the Eldorado ditch whereby waters taken from the tributaries of Burnt river are turned into Willow creek, and that more water was discharged into Willow creek than was diverted therefrom by reason of the construction of the dam of which plaintiff complaints; that the dam was constructed with the approval and consent of the state water board for the purpose of diverting such waters discharged by the Eldorado ditch and that which the defendant land company was entitled to take from the natural flow of Willow creek; and that it received only such water as was diverted under the supervision of the water master while acting in his official capacity.

As a third affirmative defense, it is alleged: "That as to all acts and things alleged in the complaint which were done or happened more than two years before the commencement of this action, the said action has not been commenced within two years after the cause of action accrued, or within the time prescribed by chapter 2 of title 1, Oregon Laws."

The trial court sustained a demurrer to the three separate affirmative defenses, and the cause was submitted to the jury under the issues as made by the complaint and the denials of the answer. The action was dismissed as to the defendant A. B. Phelps, upon motion for judgment of nonsuit. The jury returned a verdict in favor of the defendant H. G. Kennard as water master, but found against the defendant Eastern Oregon Land Company in the sum of $14,217.39.

In this most difficult and complicated case, we will first consider the motion of defendant for a directed verdict. It is conceded that the plaintiff has a prior right over the land company to the natural flow of Willow creek. Many years before the company attempted to change the application or use of its water right to its land above that of the plaintiff, the latter, as an appropriator, had perfected his right by adverse user. When the dam was constructed, the plaintiff instituted the suit for injunction, and in that proceeding it was determined by this court ( Norwood v. Eastern Oregon Land Company, 112 Or. 106, 227 P. 1111) that such diversion was an infringement upon the water right of the plaintiff. In other words, it was in effect held that the land company was taking water from Willow creek to which it was not entitled. The contention that more water was discharged from the Eldorado ditch than was taken from the natural flow of Willow creek was involved in that proceeding. Yet defendant again urges the point, and asserts that there is no evidence that it ever diverted any water adjudicated to the plaintiff. There is evidence that, prior to the diversion, the plaintiff had ample water from the flow of Willow creek for irrigation purposes, and that he produced large and profitable crops of alfalfa hay; that, after the dam was constructed in 1919 and the flow of Willow creek, excepting at flood stage, was completely diverted, the productivity of plaintiff's land materially and continually decreased, until he was unable to raise profitable crops of hay; and that, after the diversion was enjoined in 1924 and the plaintiff was again enabled to obtain water for irrigation purposes, large crops of alfalfa hay were produced. From this evidence we think the jury might reasonably infer that plaintiff sustained damage by reason of this wrongful diversion of water. The evidence tends to establish with reasonable certainty that the interference with the natural flow of Willow creek was the proximate cause of the damage. We deem it unnecessary to refer to the evidence offered by defendant in refutation of this claim of damage. Suffice it to say, a question was presented for the determination of the jury. It is not for this court to weigh the evidence.

But defendant strongly urges that it should not be mulcted in damages for having received only such water as was diverted under the supervision of the water master, and that, the jury having found in favor of the defendant water master, it necessarily and logically follows that the land company must be absolved from liability.

Under the water code of this state, the water master is an administrative officer whose duty is to distribute water according to the decree adjudicating such water rights. Squaw Creek Irrigation District v. Mamero, 107 Or. 291, 214 P. 889; Nault v. Palmer, 96 Or. 538, 190 P. 346. He acts under the direction and supervision of the state engineer. As stated by Justice Burnett in Brosnan v. Boggs, 101 Or. 473, 198 P. 890, 891, referring to the duties of the water master: "His action must be founded upon some decree, and unless a party can show some such right, he cannot be protected by the action of the water master, who in turn can justify only on some established right." The law, however, does not contemplate that he shall respond in damages for an erroneous construction of a decree determining water rights, provided he acts in good faith and within the scope of his statutory duties. If the rule were otherwise, a water master's work would, indeed, be a hazardous employment.

In the instant case, it will be remembered that the water rights on Willow creek were adjudicated in 1916. In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475. The change in the application or use of water by the defendants to point of diversion at dam is not based upon the above decree, but upon an ex parte order of the state water board made on April 28, 1916. In the injunction suit this court, Norwood v. Eastern Oregon Land Co., 112 Or. 106, 227 P. 1111, 1114, in commenting upon such order, said: "The acts of the defendant [Eastern Oregon Land Company], pretending to rely upon a void order of the water board, amounts to a continued trespass which equity is authorized to enjoin."

Further, the court said: "The situation is not different from one in which any stranger would enter upon the stream above the...