Salem Flouring Mills Co. v. Lord

• Decision Date: 25 August 1902
• Citation: 69 P. 1033,42 Or. 82
• Parties: SALEM FLOURING MILLS CO. v. LORD, Governor, et al.
• Court: Oregon Supreme Court

69 P. 1033

42 Or. 82

SALEM FLOURING MILLS CO. v. LORD, Governor, et al.

Supreme Court of Oregon

August 25, 1902

Appeal from circuit court, Marion county; R.P. Boise, Judge.

Suit by the Salem Flouring Mills Company against William P. Lord governor of the state of Oregon, and others. From a decree in favor of plaintiff, defendants appealed. Modified and affirmed.

The Willamette Woolen Manufacturing Company was incorporated by an act of the legislative assembly of the territory of Oregon, December 17, 1856 (Laws 1856-57, p. 48), with power among others enumerated, "to bring water from the Santiam river to any place or places in or near Salem, to be brought as far as possible through the channel or valley of Mill creek," and was given "the exclusive right to the hydraulic powers and privileges created by the water which it takes from the Santiam river, and may use, rent, or sell the same, or any portion thereof, as it may deem expedient." In pursuance of its charter, this company constructed in 1857 a canal from a point on the right bank of the Santiam river to a connection with Mill creek, and by means thereof, and the channel of Mill creek, enlarged and improved where needed, conducted a large volume of water from the Santiam river to the city of Salem. About the same time the company acquired real property adjacent to Mill creek near its confluence with the Willamette river, within the city, erected a woolen mill and a sash and door factory thereon, and utilized the water to operate the same. These industries, however, have been discontinued. Later, the company acquired another tract of land, near the junction of South Mill creek with the Willamette river, erected a flouring mill thereon, and conducted water thereto for its operation by means of a race constructed for the purpose and intersecting Mill creek about a mile east of the mill, at what is known as the "Waller Dam." By means of this dam the water from Mill creek was intended to be divided into two equal parts. This company disposed of certain water powers and privileges upon the race, to which the Thomas Kay Woolen Mills Company and the Salem Water Company have succeeded, and by deed of March 7, 1865, granted to the state of Oregon certain other rights and privileges, on conditions following: "All the right, title, and interest of said company in and to the water power on Mill creek, where said creek passes through the land of M.L. Savage, in the county of Marion, state of Oregon, together with the right which said company has under and by virtue of its charter to bring water through the land of Frederick Yenkee, in said county adjacent to the land of said Savage, so that the said water may be used to the best advantage at such point on or near Mill creek on the land of said Savage as the said state of Oregon or its assigns may select to use the same as a water power. It is expressly understood, however, that in case the said water is brought across the land of the said Yenkee, it shall be confined to a race or narrow channel, so as to prevent all unnecessary waste of water, and that said state or its assigns shall pay all damage which it may cause in bringing said water. It is further expressly understood that the right hereby conveyed does not include the right to use said water for the purposes of irrigation, or in any other way or for any other purpose than running machinery and for mechanical purposes, except that said state may use for such other purposes as it may choose such an amount of water as it can pump through a pipe not exceeding two inches in diameter all other water which said state may use by virtue of this conveyance to be returned to Mill creek on the land of said Savage without unnecessary waste. It is expressly understood that said company has reserved and hereby doth reserve the right to take from the flume or penstock, which the said state or its assigns may construct for the purpose of using said water power, any amount of water it may choose to take not exceeding what can be conveyed through a pipe six inches in diameter, and for the purpose of taking such water from said flume or penstock the said company is to have the right of way across any land which said state may purchase from said Savage for laying a pipe and maintaining the same for conveying said water. This instrument is not to be so construed as to restrict the said state of Oregon in any right to the use of said water which said state may have or acquire by virtue of ownership of the land along Mill creek."

To all other rights and privileges acquired by virtue of such legislative grant, and the construction and maintenance of such canal and waterway, the plaintiff has succeeded. Below the Waller dam the water is being utilized principally along the race and at the flouring mill for manufacturing purposes, propelling machinery, and the like, but the plaintiff is the owner of different parcels of realty, including the old woolen mill and sash and door factory sites, adjacent to and so situated that the water from North Mill creek may be so utilized thereon, which are therefore of great value, although little, if any, water is now being used for such purposes from that source. On March 22, 1865, Morgan L. Savage and wife conveyed to the state of Oregon a tract of land, situated a quarter of a mile or more east of and above the Waller dam, containing 147 acres, the southern portion of which is intersected by the natural channel of Mill creek. The conveyance comprises "all the right, title, interest, claim, and privilege to the water and water power of Mill creek, where said creek passes through or by the land of said Savage, party of the first part, and the whole estate which the said parties of the first part have, own, and possess, of, in, or to the said described premises and privileges," but reserves the right of the Willamette Woolen Manufacturing Company to take from the flume or penstock which the state should thereafter construct any amount of water, not exceeding such quantity as can be conveyed through a six-inch pipe, being the same right or privilege reserved by the Willamette Woolen Manufacturing Company in its grant to the state of Oregon. Subsequently, the state erected upon the southern portion of the tract purchased of Savage, and adjacent to Mill creek, a penitentiary, which, with other buildings necessary to the maintenance of such an institution, has been surrounded by a stockade and inclosure, comprising five acres of land, more or less, and including within its confines one channel of Mill creek. A race or canal has been excavated by the state, diverting the water from the right bank of Mill creek a mile above the penitentiary, and conducting the same within the stockade, where it is returned to the channel. On the northern part of this tract, about a third of a mile north of the penitentiary, the state in 1880 erected an asylum for the insane, which has ever since been maintained as such. The state has long been utilizing the water at the penitentiary for propelling machinery for manufacturing purposes, and has operated pumps, at first one, then later two, for supplying certain of the state institutions with water from the creek. When the asylum was erected, a four-inch water main was laid thereto from the penitentiary, water being supplied to the institution thereby. In 1885 or 1886 this main was replaced by one six inches in diameter. From 1880 to 1898 these mains were supplied by one pump, conducting the water from a cistern constructed for the purpose at the penitentiary by a 10-inch suction pipe. At the latter date another cistern was constructed and pump added, each taking the water from the new cistern by a 10-inch pipe, the old cistern being abandoned. By these means water has been supplied to the state penitentiary for irrigation, cooking, manufacturing, sanitation, and such other purposes as were required, to the asylum for like purposes, to the state capitol for hydraulic, stand-pipe, and other uses, and for a long time to the orphans' home and the state fair grounds. It is also alleged by the complaint that the defendants, comprising the governor, secretary of state, and state treasurer, constituting the board of trustees for the state insane asylum, the superintendent of that institution, and the visitor and superintendent of the Oregon state penitentiary, are wrongfully diverting water from Mill creek, far in excess of the grant of the Willamette Woolen Manufacturing Company, as evidenced by its deed of March 7, 1865, and are thereby invading the rights and privileges of the plaintiff acquired through legislative grant, and the construction and operation of its canal and waterway for conducting water from the Santiam river to the city of Salem; wherefore plaintiff seeks to enjoin the diversion of such excess.

Defendants set up four defenses. By the first it is alleged that Savage in addition to the 147 acres of land, sold and conveyed to the state all the water in Mill creek, except sufficient for his own stock, and that Mill creek has at all times furnished and supplied from natural sources alone more water than the defendants and their predecessors in office have used for the penitentiary, asylum, and other state institutions, and that ever since said date the state of Oregon has been, and is now, the owner of said land and all the water in Mill creek, including the water introduced therein from the Santiam river, save as aforesaid; that after the construction by the state of the penitentiary and asylum buildings, and after the six-inch main was laid from the former to the latter, the supply of water became slack and insufficient, because of the canal connecting Mill creek with the Santiam river, and the channel of Mill creek becoming...