Simmons v. Winters

• Decision Date: 24 June 1891
• Citation: 27 P. 7,21 Or. 35
• Parties: SIMMONS v. WINTERS.
• Court: Oregon Supreme Court

27 P. 7

21 Or. 35

SIMMONS v. WINTERS.

Supreme Court of Oregon

June 24, 1891

Appeal from circuit court, Wallowa county; JAMES A. FEE, Judge.

(Syllabus by the Court.)

A water-course is a stream of water usually flowing in a particular direction, with well-defined channels and banks but the water need not flow continuously, as the channel may sometimes be dry; but this does not include water descending from the hills, without any definite channel, only in times of melting snow and ice.

Where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rains and melting snow and at regular seasons descends through gullies or ravines upon the lands below, and in its onward flow cuts out through the soil a well- defined channel, which bears the unmistakable impress of the frequent action of running water and through which it has flowed from time immemorial during such seasons, such a stream is to be considered a watercourse, and governed by the same rules.

To make a valid appropriation of water, there must be some actual beneficial purpose, existing at the time, or contemplated in the future, as the object for which the appropriation is made, is the limit to the amount of water which may be taken.

To effect the appropriation, any gulch, dry ravine, or depression in land may be used as a part of the ditch for conducting the water; and so may the lower portion of the same channel from which the water is taken.

Under the maxim of the law that whoever grants a thing is supposed also tacitly to grant that without which the grant would be no avail, the right to the use of a ditch and water existing in favor of land conveyed by deed, and without which the land would be practically valueless, pass by such deed as appurtenances.

T.H Crawford, for appellant.

R. Eakin, for respondent.

LORD, J.

This is a suit in equity, brought by the plaintiff to enjoin the defendant from diverting the waters of a certain stream commonly known as "Sheep Creek Ditch," and for damages. The waters of Sheep Creek ditch flow through the lands of the plaintiff and the defendant. The theory upon which the suit is predicated is that Sheep Creek ditch is an ancient and natural water-course, with well-defined banks and channels, to the uninterrupted flow of which the plaintiff is entitled as a riparian owner, and by the diversion of which he has already been damaged, and will be irreparably damaged unless the defendant be restrained and enjoined. The facts alleged being denied, the defense set up was prior appropriation of the waters of Little Sheep creek by means of dam, ditches, and dry ravines, or draws, into what is commonly known as "Sheep Creek Ditch," for the purpose of irrigation, stock, and domestic uses. The legal aspect of the case involves an inquiry into (1) what constitutes a water-course; (2) the quantity of water to which an appropriation is restricted; and (3) the nature of the water-right which may pass as appurtenant to the premises conveyed.

Considering these in their order, the inquiry is, what is included within the term "water-courses?" When there is a living stream of water, within well-defined banks and channel, no matter how limited may be its flow of water, there is no difficulty in determining its character as a water-course; but when the stream is of that class which periodically or occasionally flows through ravines, gullies, hollows, or depressions in land, and by its flow assumes a definite channel, such as indicates the action of running water, there is often some difficulty of distinction. A water-course is defined by BIGELOW, J., as "a stream of water usually flowing in a definite channel, having a bed or sides or banks, and usually discharging itself into some other stream or body of water." Luther v. Winnisimmet Co., 9 Cush. 174. It is "a living stream, with defined banks and channels, not necessarily running all the time, but fed from other and more permanent sources than mere surface water." Jeffers v. Jeffers, 107 N.Y. 651, 14 N.E. 316. The size of the stream is immaterial, but "it must be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes; but the flow of water need not be constant." Pyle v. Richards, 17 Neb. 182, 22 N.W. 370. It is defined in Eulrich v. Richter, 37 Wis. 226, to be "a stream of water, usually flowing in a certain direction, in a regular channel, with bed and banks; but the water need not flow continually. The channel may be sometimes dry." "There must, however, always be substantial indication of the existence of a stream, which is ordinarily and most frequently a moving body of water." Weis v. City of Madison, 75 Ind. 253. "A water-course," says Mr. Angell, "consists of bed, bank, and water; yet the water need not flow continually, and there are many water-courses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which, in times of freshets or melting of ice or snow, descend from the hills and inundate the country." Ang. Water-Courses, § 4. The distinction is, as HAWLEY, C.J., said "that it is a flowing stream of water,--a water-course,--as distinguished from water flowing through hollows, gulches, or ravines only in times of rain or melting snow." Barnes v. Sabron, 10 Nev. 237. "Such hollows or ravines," said DIXON, C.J., "are not, in legal contemplation, water-courses." Hoyt v. City of Hudson, 27 Wis. 656. But, "if the face of the country is such," said WILLIAMSON, C., "as necessarily to collect in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet, and if such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water-course." Earl v. De Hart, 12 N.J.Eq. 280. "In a broken and bluffy region of country," said MITCHELL, J., "intersected by long, deep gullies or ravines surrounded by high steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the value of a small river, and usually following a well-defined channel, *** such streams partake more of the nature of natural streams than of ordinary surface waters, and must, at least to a certain extent, be governed by the same rules." McClure v. City of Red Wing, 28 Minn. 186, 9 N.W. 767. bs v. Williams,

25 Kan. 214, it is held, where surface water from rains and snow in a hilly country, seeks its outlet through a gorge or ravines, and by its flow assumes a definite channel, with well-defined banks, such as will present to the casual glance the unmistakable evidence of the frequent action of running water, and through which at regular seasons the water flows, and has done so immemorially, such stream is a natural water-course. In West v. Taylor, 16 Or. 172, 13 P. 669, STRAHAN, J., said that "water which has accumulated from spring rains and melting snows, and which has flowed several miles between regular banks of a well-defined water-course, *** must be deemed a water-course." The conclusion to be deduced from these decisions is that a water-course is a stream of water usually flowing in a particular direction, with well-defined banks and channels, but that the water need not flow continuously,--the channel may sometimes be dry; that the term "water-course" does not include water descending from the hills, down the hollows and ravines, without any definite channel, only in times of rain and melting snow; but that where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rain and melting snow, and at regular seasons descends through long deep gullies or ravines upon the lands below, and in its onward flow carves out a distinct and well-defined channel, which even to the casual glance bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial, such a stream is to be considered a water-course, and to be governed by the same rules.

2. In this state the doctrine of the right to water by prior appropriation for mining and irrigating lands has not been adopted or applied, except as the parties have acquired their rights under the act of congress of 1866. Nor has there been any legislation by the state upon the subject. By the act of congress, the right to water by prior appropriation from the streams upon the public domain was recognized and established. "But the appropriation," said Mr Justice FIELD, "is limited in every case, in quantity and quality, by the uses for which the appropriation is made." Atchison v. Peterson, 20 Wall. 514. The measure of the right of the first appropriation of the water, as to extent, follows the nature of the appropriation, or the uses for which it is taken. Ortman v. Dixon, 13 Cal. 38. The needs or the purpose for which the appropriation is made is the limit to the amount of water which may be taken. He can only appropriate so much as he needs for the given purpose. But the appropriation must be made for some beneficial purpose, presently existing or contemplated. Mr. Pomeroy says: "In order to make a valid appropriation of waters upon the public domain, and to obtain an exclusive right to the water thereby, the appropriation must be made with a bona fide present intention of applying the water to some immediate useful or beneficial purpose, or in present bona fide contemplation of a future application of it...