Pringle Falls Elec. Power & Water Co. v. Patterson
| Decision Date | 20 May 1913 |
| Citation | 65 Or. 474,132 P. 527 |
| Parties | PRINGLE FALLS ELECTRIC POWER & WATER CO. v. PATTERSON et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Crook County; W.L. Bradshaw, Judge.
Suit by the Pringle Falls Electric Power & Water Company against Charles A. Patterson and others. From a decree for plaintiff defendants appeal. Modified and affirmed.
See also, 128 P. 820.
The defendants appeal from a decree in favor of plaintiff. The subject of this suit is the right to divert the waters of the West fork of the Deschutes river on the land of the plaintiff, in Crook county, near Pringle Falls. Plaintiff is the owner of the northeast quarter of section 23, township 21 south, range 9 east, Willamette Meridian. The West fork of the Deschutes river flows through this quarter section in a northwesterly course. Pringle Falls, with a descent of approximately 60 feet, is situated near the center of this tract. The estimated amount of water in the river is 1,364 second feet. O.M. Pringle obtained a patent for this tract of land in 1893. In November, 1906, he and three others incorporated the Pringle Falls Electric Power & Water Company, and on the 17th of that month Pringle and wife executed a deed conveying the land to plaintiff.
On the 15th of December, 1906, in conformity with the statutes of 1891 (section 6528 L.O.L.) and 1899 (section 6555 L.O.L.) plaintiff posted and filed a notice reciting that the Pringle Falls Electric Power & Water Company had appropriated and intended to divert 2,880 cubic feet per second of the waters of the Deschutes river, in Crook county, Or., "for general irrigation, manufacturing power, household electrical power and generating purposes, and for the purpose of reclaiming the arid desert lands of Crook county" that the point of diversion was on the left bank of the Deschutes river at a point S. 43 deg. W. 20 rods from the southwest corner of the northeast quarter of section 23; that the canal was to be known as the "Pringle Falls Electric Power & Water Ditch," to be used for power purposes. On the 29th of December, 1906, plaintiff, after making a survey of the proposed course of its canal, filed a copy of the notice, together with a map, field notes, plans and specifications of the proposed diversion and works, certified to by the county clerk of Crook county, in the office of the State Engineer at Salem, Or.
Plaintiff asserts that, within six months after the posting of the notice and the making of the record, it entered upon the actual construction of its proposed ditch and canal, and has prosecuted the same without intermission, except as the same has been prevented by the act of God, the elements, and unavoidable casualty; that the point of diversion was in the national forest of the United States, and that plaintiff made application for permission to construct and erect a diversion dam, headgate, and canal across the public lands; that on account of necessary amendments and renewals of applications for such right of way the plaintiff was hindered and delayed in prosecuting the work on the canal; that plaintiff has the right to appropriate 2,880 second feet of water; and that defendant company's claim thereto is in fraud of plaintiff's rights.
The capital stock of the plaintiff company was owned by O.M. Pringle, his wife, and Oglesby Young, until July 29, 1910, when they sold to A.O. Wells, M.C. Donahue, and W.H.H. Dufur. In April, 1911, the plaintiff made a new survey for the canal and site for the power house, so that the dam, canal, intake, penstock, power house, and headgate would be upon the land of plaintiff. This new point of diversion is located about 1,600 feet down the stream from the old point. Plaintiff excavated about 1,100 cubic yards of earth and stone for the canal, and erected a house on the property, expending the estimated sum of $850 in the prosecution of the work. Plaintiff asserts that it had the capital and would have done more work upon the canal had the United States government allowed a right of way therefor over the forest reserve.
December 30, 1909, O.M. Pringle, the principal owner of the stock in the plaintiff company, gave defendant Grungstad an option for the land, without describing the water right, and on April 18, 1910, gave Patterson and Grungstad written authority, for 40 days, to sell the quarter section for $10,000, and delivered to them for their information a map of the survey for the canal. On May 23, 1910, defendant Gesner, based upon the data indicated on such map, and without making any survey for a canal, by filing a duplicate of the Pringle map, made an application to the State Engineer for a permit, under the provisions of the act of 1909, which permit was transferred to the defendant company January 12, 1911. January 4, 1911, Gesner amended his former application, so that his point of diversion is identical with that of plaintiff's.
The defendant Deschutes Hydro-Electric Company claims the right to an appropriation of 800 second feet of the waters of the stream by virtue of the application for a permit, which was filed by defendant Gesner with the State Engineer on May 23, 1910, approved August 4, 1910, amended January 4, 1911, and assigned to the defendant company. The defendants Patterson, Grungstad, Parrish, and Gesner disclaim any interest in the permit, or to the waters in controversy. Defendant Deschutes Hydro-Electric Company asks that its right to appropriate such waters be affirmed.
The defendant company entered upon the land of plaintiff and commenced clearing and preparing the right of way for a canal. In August, 1911, plaintiff notified them to cease, and ejected the defendant company's employés from the premises. The defendant company brought action in the circuit court of that county to condemn a right of way for a canal. After the filing of the application for the permit with the State Engineer, several parties approached Pringle, and others interested in the plaintiff's project, desiring to sell plaintiff the permit for $6,000.
Plaintiff alleges that defendants Patterson and Grungstad, while occupying a confidential relationship with plaintiff as agents for the sale of the land, and having possession of the map, plans, and papers relating to the canal project, conspired with defendants Patterson and Gesner, for the purpose of defrauding plaintiff of the water right, and brings this suit to cancel the permit issued to Gesner, and to enjoin the defendants from interfering with plaintiff in the diversion of the water. Defendants assert that the plaintiff did not prosecute the work, under its notice of appropriation, with due diligence, and that plaintiff has no right to the appropriation of water claimed; that the right of defendant company, under and by virtue of the permit to 800 second feet of water, is a valid, subsisting right.
J.N. Hart, of Portland (J. Le Roy Smith, of Portland, on the brief), for appellants.
E.B. Dufur, of Portland, for respondent.
BEAN, J. (after stating the facts as above).
The rights claimed by the plaintiff and the defendant company are inceptive in their nature. Both claim as appropriators. It is only necessary to determine such rights as between the parties. No actual appropriation of the water has been made by either party. The extent of the right, if any, that may eventually be obtained cannot be measured or adjusted by this decision.
Plaintiff gave notice of its appropriation, and conformed to the requirements of section 6528, L.O.L., and also section 6555 Id., which are alike in their essentials. The different statutes providing for the appropriation of the water of the lakes and streams of the state of Oregon declare the use thereof, for irrigation and domestic consumption, for...
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