Talent Irrigation Dist. v. Employment Division

• Decision Date: 24 June 1975
• Parties: TALENT IRRIGATION DISTRICT, Petitioner, v. EMPLOYMENT DIVISION, Ross Morgan, Administrator, Respondent.
• Court: Oregon Court of Appeals

Page 199

534 P.2d 199

21 Or.App. 83

TALENT IRRIGATION DISTRICT, Petitioner, v. EMPLOYMENT DIVISION, Ross Morgan, Administrator, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Feb. 18, 1975.

Decided April 14, 1975.

Rehearing Denied June 11, 1975.

Review Denied June 24, 1975.

Fred J. Amundson, Medford, and William Ganong, Jr., Klamath Falls, argued the cause for petitioner. On the brief were Blackhurst, Hornecker & Hassen and Fred J. Amundson, Medford.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Henigson, Stunz & Fonda and Stephen B. Fonda, Nyssa, filed a brief amicus curiae.

Panner, Johnson, Marceau & Karnopp, C. Montee Kennedy, Lyman C. Johnson and Owen M. Panner, Bend, filed a brief amicus curiae on behalf of North Unit Irrigation District and Tumalo Irrigation District.

Before LANGTRY, P.J., and FOLEY and LEE, JJ.

LANGTRY, Presiding Judge.

This is a companion appeal to Klamath Irr. Dist. v. Employ. Div., Or.App., 534 P.2d 190 (1975), decided pursuant to the same law. With the exception of the exact percentage of its total water that the respective irrigation districts deliver for nonfarm purposes, the essential facts are the same. Summarizing the facts found by the referee, it appears that between 90 and 95 percent of all of the water the Talent district delivers is for farm purposes. The irrigation district manager testified that of 15,705 acres served by the district 300 acres are supplied with water to the city of Ashland and 226.5 to the city of Talent. However, he also testified that the city of Ashland takes water from Ashland Creek for domestic purposes. Some of this domestic water belongs to farms, with prior rights, below Ashland on Ashland Creek. To repay this water to those farm owners, the bulk of the 300 acres of water from the irrigation district is run down Ashland Creek to the farms--hence, it is largely used for 'agricultural purposes.' He testified the city of Talent does the same thing with reference to replacing 'some of' its domestic water which is taken from Wagner Creek. Therefore, water supplied through the Talent Irrigation District is minimally used for city as distinguished from farm purposes.

We consider the delivery for farm purposes of this water to be the 'principal,' the 'primary,' the 'in large part' function of the district. No 'substantial' part of the water is delivered for nonfarm purposes, and the case is controlled by our decision in Klamath.

Reversed.

LEE, Judge (dissenting).

In this case the majority found

'* * * that between 90 and 95 percent of all of the water the Talent district delivers is for farm purposes.'

Two of the accounts served by ...