Oregon Lumber Co. v. East Fork Irr. Dist.

• Court: Oregon Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Oregon Lumber Co. v. East Fork Irr. Dist., 80 Or. 568, 157 P. 963 (Or. 1916)
• Decision Date: 23 May 1916
• Parties: OREGON LUMBER CO. v. EAST FORK IRR. DIST.

157 P. 963

80 Or. 568

OREGON LUMBER CO. v. EAST FORK IRR. DIST.

Supreme Court of Oregon

May 23, 1916

In Banc.

Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge.

Action by the Oregon Lumber Company against the East Fork Irrigation District. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The plaintiff is a corporation doing business in this state in the manufacture of lumber at its sawmill in Hood River county. The defendant is an irrigation district organized under title 41, chapter 7, L. O. L. The plaintiff is the owner of the W. 1/2 of section 7, township 1 N., range 10 E of the Willamette meridian, and a large amount of timber land in that county, amounting to about 12,000 acres, all accessible from said legal subdivision. The east fork of Hood river is a perennial nonnavigable stream, taking rise from the perpetual snows of Mt. Hood and running in a general northerly direction across the lands of the plaintiff first mentioned. The plaintiff alleges, and it is admitted by the defendant, that in April, 1905, the former began the construction of a dam across the east fork of Hood river on the W. 1/2 of section 7 aforesaid, completed the same, and about June 1, 1906, began to use the water in running its sawmill there. The plaintiff claims to have appropriated as a motive power for its machinery 340 second feet of water from the stream, and that the same is necessary for the ordinary operation of its plant. The necessity of so large an appropriation is denied by the defendant. It is stated in the complaint and admitted by the answer that the defendant was incorporated for the purpose of irrigating about 13,000 acres of land within the corporate limits of the district by means of water to be taken from the stream above the point of diversion established by the plaintiff, and that the defendant threatens to, and unless restrained by the court will, divert to the exclusion of plaintiff's appropriation a large amount or all the water of the stream flowing at its point of diversion during the irrigation season between April 15th and September 30th of each year. The plaintiff's prayer is that the defendant be utterly restrained from interfering with the natural flow of the water in the stream.

After sundry denials, about which it is not necessary to particularize, the defendant pleads the incorporation of the East Fork Irrigating Company in 1895, and attributes to it the posting of a notice at a point of diversion on the stream, to the effect that it intended to appropriate therefrom 7,000 miner's inches of water, measured under a 6-inch pressure; that it completed a main canal or ditch from the point of diversion northerly through lands now embraced in territory of the defendant district, and turned water into the main canal and distributing ditches issuing therefrom. The defendant, pleading its own incorporation as an irrigation district, claims to deraign title from the East Fork Irrigating Company to the right to appropriate the quantity of water described in that notice. The reply traversed the new matter of the answer in various material particulars. The circuit court decreed that the plaintiff take nothing by its complaint, and established a right of the defendant to divert and appropriate such a volume of water not exceeding 175 second feet, as may be necessary to apply to the irrigation of irrigable lands embraced within its district, giving it priority as of date November, 1895, and enjoining the plaintiff from interfering in any manner with the exercise of the right thus settled. The plaintiff appeals.

B. S Huntington, of Portland (Huntington & Wilson, of Portland and Ernest C. Smith, of Hood River, on the brief), for appellant. George R. Wilbur, of Hood River (A. J. Derby, of Hood River, on the brief), for respondent.

PER CURIAM.

This is a suit in equity, appealed to this court from a decree of the circuit court, to be tried here anew upon the transcript and the evidence accompanying it....