Smith v. Smith
| Decision Date | 21 October 1913 |
| Citation | 67 Or. 606,135 P. 876 |
| Parties | SMITH v. SMITH. [d] |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Josephine County; F.M. Calkins, Judge.
Action by Will C. Smith against W.G. Smith. Judgment for the plaintiff, and defendant appeals. Reversed, and suit dismissed.
The plaintiff states that he is the owner of certain semiarid lands in Josephine county, together with an irrigating ditch leading out of Wolf creek to and upon his lands, and of a dam across that stream; that he and his grantors have used all the water from Wolf creek and its tributaries above the dam through the ditch for more than 20 years for necessary irrigation and domestic purposes, The complaint then states "That plaintiff, his grantors and predecessors in interest, for more than 20 years prior to the acts of the defendant hereinafter alleged, have been in the open notorious, exclusive, hostile, adverse, and continuous use possession, and occupation and enjoyment of all of said water during the irrigating season each year and of said ditch dam, and bulkhead and headgate, adversely to the defendant and the whole world under a claim of right and ownership to the use of said water and the whole thereof during the irrigating season of each and every year." The plaintiff also avers that the dam and headworks and part of the ditch mentioned are situated on lands owned by and in possession of the defendant; that some time during the year 1910 the defendant wrongfully and in violation of plaintiff's rights and ownership tore out the headgate and blew up part of the dam, whereby the water of Wolf creek flowed through the dam and away from the plaintiff's ditch so that he could not use the water, all to his damage in the sum of $1,000. The prayer is that, as against the defendant and his grantees, the plaintiff be declared to be the owner of all the water flowing in the creek above the dam, together with the ditch, dam, and headworks, and entitled to repair, maintain, and operate the same, and that the plaintiff have judgment against the defendant for damages as alleged, together with a perpetual injunction against interfering with the plaintiff's use and enjoyment of the water. The allegations of the complaint are denied by the answer. Certain new matter in the answer was disposed of on demurrer in the circuit court adversely to the defendant, and some questions are suggested in the argument based on the action of the court in that respect, which we do not deem it necessary to consider here. After hearing the testimony reported by a referee, the circuit court entered a decree in favor of the plaintiff for $1,000 damages, and otherwise according to the prayer of the complaint. The defendant appeals.
John K. Kollock, of Portland (Edward H. Richard, of Grants Pass, and Kollock & Zollinger, of Portland, on the brief), for appellant.
W.C. Hale, of Grants Pass, for respondent.
BURNETT J. (after stating the facts as above).
In the face of the general issue it became necessary for the plaintiff to establish his ownership of the dam and headworks and the ditch mentioned in his complaint.
As showing title from his immediate grantor, he read in evidence a deed dated July 31, 1908, from one Pollard...
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