Seaweard v. Pacific Live Stock Co.

• Decision Date: 05 March 1907
• Citation: 49 Or. 157,88 P. 963
• Parties: SEAWEARD et al. v. PACIFIC LIVE STOCK CO. et al.
• Court: Oregon Supreme Court

88 P. 963

49 Or. 157

SEAWEARD et al. v. PACIFIC LIVE STOCK CO. et al.

Supreme Court of Oregon

March 5, 1907

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Suit by J.H. Seaweard and another against the Pacific Live Stock Company and others to enjoin interference with the flow of water in a certain stream. From the judgment adjudging the rights of the parties in the stream, defendant Pacific Live Stock Company appeals, and plaintiff brings cross-appeal. Affirmed.

John L. Rand, for appellant Pacific Live Stock Company.

Will R King, for respondents.

MOORE J.

This is a suit to enjoin interference with the flow of water in the channel of Crooked creek, in Malheur county. The complaint states in effect that the plaintiffs, J.H. Seaweard and Anderson Loveland, are prior appropriators of water from that stream; that the defendant the Pacific Live Stock Company, a corporation, is digging a ditch above their lands and threatening to divert all the water of the creek, to their irreparable injury; and that the defendants Pearl Duncan and Pedro Germain are using water for irrigation to which the plaintiffs are entitled. Germain made default; but, issues having been joined as to the other defendants, the cause was tried, and from the testimony taken the court made findings of fact, and, based thereon, concluded as matters of law that the Pacific Live Stock Company has a prior appropriation of 100 inches of water from the creek, and that the relative rights of the other parties to the use of the water of the stream and the extent of the subsequent appropriations thereof are as follows: Loveland, 150 inches; Seaweard, 120 inches; and Duncan, 80 inches--miners' measurement, under 6-inch pressure, all of which rights are superior to the claim of the corporation to the use of any water in excess of 100 inches. A decree having been rendered in accordance with the findings, the plaintiffs and the Pacific Live Stock Company separately appeal.

The testimony shows that Crooked creek is a perennial stream issuing from a spring situated on land owned by the Pacific Live Stock Company and flowing northeasterly through the premises of all the parties hereto, except those of Duncan; that A.J. Morgan and C.W. Hinkey settled upon public lands near this spring, and in 1886 and the following year dug ditches and diverted water from the creek, which they respectively used on the premises claimed by them, and having secured patents therefor, the title to such lands, by mesne conveyances, became vested in the corporation in 1900 that the plaintiff Loveland made a homestead entry on land below the premises so owned by the Pacific Live Stock Company, and in 1886 diverted water from the creek with which he irrigated his land; that his brother, without any claim of right thereto, took possession of a section of land owned by the Oregon Central Military Road Company, and irrigated a part of it from the creek, which premises are now leased to the plaintiff last named, who was awarded 100 inches of water for the irrigation thereof; that E.W. Crutcher settled on public land situated below Loveland's diverted water from the creek in 1895 for irrigation, and, having secured a patent for his land, conveyed it to the plaintiff Seaweard; that defendant Duncan settled on government land situated below Seaweard's premises, and dug a ditch from the stream mentioned, the head of which is above that of the latter's conduit, and diverted water for irrigation; and that, the Pacific Live Stock Company, in 1904, having built a dam in the creek nearer the spring and commenced to dig a ditch on higher ground, so as to irrigate more of its land than was then possible, this suit was instituted, resulting in a decree as hereinbefore indicated.

The plaintiffs' counsel admit that such corporation has a prior appropriation, but contend that errors were committed in awarding it more than 50 inches of water as the measure of its right, in not requiring the dam which it constructed to be removed, and in not enjoining the use of any water through the new ditch. The legal principles thus maintained are disputed by counsel for the Pacific Live Stock Company, and they insist that errors were committed in awarding Loveland the use of any water from the creek for the irrigation of the land leased to him, and in not permitting their client to use all the water of the stream, if necessary, in irrigating its lands. We will consider these questions in their inverse order.

An examination of the testimony discloses that from 1899, when Morgan and Hinkey respectively conveyed the real property which the Pacific Live Stock Company now owns, at the head of Crooked creek, until 1904, a period of five years, there was no attempt made to increase the area of such arable land originally irrigated, and that during that time Loveland Seaweard, and Duncan, respectively, appropriated water which the corporation continually permitted to flow in the channel of the stream to the head of their ditches. When an ordinarily prudent person makes a prior appropriation to irrigate arid land of which he is the owner, or in the lawful possession expecting to acquire title thereto, if such land will be benefited by irrigation, and the volume of the stream is sufficient therefor, it is reasonable to suppose that he has in mind both the extent of his land and the amount of the water at the time of his appropriation, and that he intends to reclaim the entire area thereof, either by...