Watts v. Spencer

• Decision Date: 03 March 1908
• Citation: 51 Or. 262,94 P. 39
• Parties: WATTS et al. v. SPENCER et al.
• Court: Oregon Supreme Court

94 P. 39

51 Or. 262

WATTS et al. v. SPENCER et al.

Supreme Court of Oregon

March 3, 1908

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by Alex Watts and Minerva Topping against E.M. Spencer, L.W Smith, and Jacob Carter. From a decree for plaintiffs defendants appeal. Affirmed.

This suit was brought by plaintiffs for the purpose of protecting by injunction, their alleged prior right to the use, for irrigation, of 260 inches of the waters of Williams creek, in Josephine county, diverted from the west or left bank of the stream, against the alleged adverse and superior claims of the defendants to the use of 50 inches of the waters of the same stream diverted from the east or right bank, a few rods above the head of plaintiffs' ditch. Plaintiffs allege an appropriation by their predecessors in interest in 1853 of 1,000 inches of water for milling and irrigation purposes which amount was diverted and appropriated to such use down to 1883, and that they have succeeded to those rights and since 1883 have used 260 inches for irrigating their own lands and the lands of three persons to whom they have sold water; that defendants have wrongfully interrupted their use of that amount of water, to their irreparable damage. After denying the allegations of the complaint, defendants set up three separate and affirmative defenses. In the first they base their right upon purchase from one J.T. Layton, from whom plaintiffs also derive their right; in the second, upon prior appropriation made in 1879 by themselves and their predecessors in interest; and, in the third, upon adverse user. By the reply all the new matter of the answer is denied. The cause was referred for the taking of testimony, and, upon a report thereof to the court, findings were made in plaintiffs' favor and a decree entered, giving to them a prior right to the extent of 260 inches of water and enjoining defendants from interfering therewith, from which decree defendants appeal.

*Geo. W. Colvig, for appellants.

H.D. Norton, for respondents.

SLATER C. (after stating the facts as above).

The main issue between the parties is the priority of their respective rights. In 1858 Simon Messenger and J.C. Duncan entered upon the S.W. 1/4 of section 12, T. 38 S., range 5 W., then vacant and unappropriated lands of the United States, in Josephine county, through which Williams creek runs in a northeasterly direction. Near the left or west bank of the stream they erected a sawmill, and appropriated and used 1,000 inches of water from the creek to operate their mill, and incidentally, in a small way, for irrigation of adjacent lands. The head of their ditch intersected the stream on the west side near the southwest corner of the section, and about one-quarter of a mile above the mill. After its use at the mill, the surplus water was turned back into Williams creek. The amount of water furnished by the stream is not definitely determined by the record. It does appear, however, that there was sufficient water during the flood season to operate the mill; but that in occasional seasons of drought it was reduced to between 250 and 300 inches. Messenger afterwards homesteaded the land upon which the mill and ditch are situated, and a patent therefor was issued in 1875, but in the meantime he had sold and conveyed his rights, and the title and possession had passed through several hands until it rested in J.T. Layton in 1876. Prior to that time, Layton had also owned and operated some placer mines a mile or more south and east of the mill on Whiskey creek, a tributary of Williams creek, which flowed into the latter below, and on the side thereof opposite to the location of the mill. Layton had used some of the water of Williams creek to assist in his mining operations, which he took from the creek by a ditch beginning on the right bank of the stream about opposite to the place where the tailrace of the sawmill returned the water to the stream. The water thus diverted by Layton was not used by him in the mining proper, but to aid in carrying off the tailings.

So far as their title is based on purchase, both parties to this suit claim through Layton. Plaintiffs have offered parol proof of a sale in 1876 of the mill property, and the appurtenant water rights for a valuable consideration by Layton to Henry Jones, their immediate grantor; that Jones and Provolt, who was interested with him, took possession of the property in that year, and, claiming full ownership, operated the mill until about the year 1883, when Jones, then claiming to be the sole owner, agreed to sell to Watts, one of the plaintiffs, the land on which the mill and water ditch were located and the appurtenant water rights, reserving, however, the machinery in the mill. At that time Jones was still owing Layton a balance of the purchase price of the mill amounting to $40, and on January 1, 1883, Watts went with Jones to Layton to learn from the latter what rights, if any, he claimed in or to the mill property, and to the use of the water of Williams creek. Watts then informed Layton that he was about to purchase from Jones the land and water rights appurtenant to the mill, with the purpose of conveying the water from a point adjacent to the mill to his farm, for irrigation purposes. Layton thereupon informed him that he (Layton) had sold everything to Jones, reserving only the right to use the water of Williams creek through his ditch on the east side opposite the mill, or through another ditch he contemplated digging, intending to divert the water from the stream a few rods above the headgate of the mill race for the purpose of carrying the tailings from his mine; that the only claim he had against the mill property or Jones was a balance of $40 due him on the purchase price. Thereupon Watts paid Layton for Jones the balance due and took the receipt. Layton then authorized Jones to convey the mill property and ditch to Watts, and also agreed with Watts to make him a conveyance later on, saying his wife was not then able to go to a notary to execute the deed. This Layton never did. Watts went into possession of the mill property and ditch, and in the spring of that year dug his extension ditch from the mill in a northerly direction about one mile and a half to his land and to the land of Thos. L. Knox, to whom he soon afterwards conveyed a one-half interest in the ditch. The ditch was excavated to carry 250 inches of water and was used to its full capacity, until the natural flow of the stream was interrupted by defendants, whose acts are complained of in this suit.

A right to the use of 32 inches of water was conveyed by Watts to a Mrs. McDaniels for the right of way for his ditch through her lands; and the use of 16 inches to a Mrs. Payne for the same consideration; the water in each case being used for irrigation of arid land. The remainder of the water was divided equally between Watts and his coplaintiff, successor in interest to Knox. In addition to the amount claimed through the extension ditch, Watts permitted Simon Messenger to appropriate 10 inches of the water from the mill ditch in consideration of his doing one-fourth of the repair work from the latter's home to the head of the ditch. All the remainder of the 1,000 inches originally appropriated appears to have been abandoned by Watts. About the year 1876 Layton, after his sale and surrender of possession of the mill property to Jones, proceeded to dig a ditch to convey water from a point a few rods above plaintiffs' dam and headgate to his mining operations, but, after digging a small portion, four to six rods, he stopped work and left the ditch uncompleted and unconnected with Williams creek; there being about two rods between the end of the ditch and the bank of that stream. This was never completed by him. He abandoned his mining operations, and asserted no further right to the use of the waters of Williams creek under his reservation with Jones. Other parties, however, particularly one Cooper, who owned land through which Layton's new ditch passed, excavated the uncompleted portion necessary to connect it with the stream and diverted through it a small amount of water estimated by different witnesses at 20 to 25 inches sufficient to irrigate a few acres cultivated by him for garden produce. Just when this was done the testimony is quite indefinite; but it is probable that he and one of his neighbors used that amount of water from Williams creek through this ditch as early as 1881 or 1882. Permission or right under Layton was not claimed until the year 1887, when the defendants and their predecessors, some of whom succeeded to whatever rights Cooper initiated, obtained from Layton, for a consideration, a conveyance of this ditch and whatever water right that may have been connected therewith, but no particular right was asserted in the instrument of transfer by Layton to be connected therewith or was any described therein as being transferred, and it was particularly stated in the instrument that Layton did not warrant that there was any right.

Defendants have objected to the admission or consideration of plaintiffs' testimony of the oral sale and transfer by Layton to Jones. The objection is that, the legal title and possession of the ditch and mill property being in Layton after the patent was issued, the transfer of his rights to Jones must be evidenced by deed, in order that plaintiffs may tack their use and appropriation of the water of Williams creek on to that of their predecessors, and thereby avail themselves of the original appropriation by Messenger and Duncan in 1858, creating a priority of appropriation in them over defendants. When, however, no title by deed, but an oral sale, is shown, defendants assert it...