Weiss v. Oregon Iron and Steel Co.

• Decision Date: 09 June 1886
• Citation: 11 P. 255,13 Or. 496
• Parties: WEISS v. OREGON IRON & STEEL CO.
• Court: Oregon Supreme Court

11 P. 255

13 Or. 496

WEISS v. OREGON IRON & STEEL CO.

Supreme Court of Oregon

June 9, 1886

Geo. H Williams, for appellant, Oregon Iron & Steel Co.

J.K Kelly, for respondent, Peter A. Weiss.

LORD J.

This is a suit for an injunction, to enjoin the defendant from diverting the water of the Tualatin river into Snake lake for manufacturing purposes. The plaintiff alleges that he is the owner of the land abutting upon the Tualatin river, which is its southern boundary for about three-fourths of a mile from its confluence with the Willamette river, and is therefore the owner of one-half the bed of said river, and entitled to have the waters thereof to flow in their accustomed channel. The defendant denies this, and contends that the official survey and the patent to the plaintiff do not include nor establish the claim of the plaintiff. Upon this point we think the evidence disposes of all doubt or uncertainty. The law is now considered well settled that where a stream is meandered in the public surveys, the stream, and not the meander lines, is the true boundary of the riparian owner. Railroad Co. v. Schumeir 7 Wall. 284-286; Minto v. Delaney, 7 Or. 342; Hills v. Homton, 4 Sawy. 195; Mining Co. v. Hicks, Id. 688. The official survey of Weiss' claim designates the Tualatin river as the northern boundary of it, and also describes it by courses and distances, and in such case the river, being a natural boundary, must prevail. "Where permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are permanent. Code, § 845, sub. 2; Lewis v. Lewis, 4 Or. 179. In Goodman v. Myrick, 5 Or. 65, it was held that in the government surveys the line actually used by the original surveyors is the true line.

The testimony of D.P. Thompson, who was engaged in the government survey, establishes the fact that the northern boundary of claim 49 was actually run down the right bank of Tualatin river, "taking measurements across the stream so as to follow the middle of it." And in reply to the question: "What was the northern boundary of Weiss' claim, from the north-west to the north-east corner, as surveyed by you?" his answer was: "The middle of the Tualatin river." And this is consistent with and corroborated by the field-notes, and other evidence produced. Upon this evidence we do not think the title of the plaintiff, as alleged, is doubtful or difficult of ascertainment, or, in fact, as contested, upon any ground, by the evidence on which he puts it.

This result obviates the necessity of considering the second point suggested, and leads us directly to the main point discussed and to be decided. The facts show that one-fifth, or perhaps more, of the water of the stream is diverted from its natural course, and turned away from the other riparian owners. It differs essentially from a case in which a stream is diverted for manufacturing purposes, but the excess of water not actually consumed in such use is restored to its natural channel. In a word, it is a case of a diversion of a part of a water-course, not for ordinary purposes, but for manufacturing purposes, without restoring to the channel the surplus of water not actually used. The general doctrine relating to water-courses is that every proprietor is entitled to the use of the flow of the water in its natural course, and to the momentum of its fall on his own land. The owner has no property in the water itself, but a simple usufruct. He may use it as it passes along, but he must send down to his neighbor below as much as he receives from his neighbor above. Ang. Water-courses, §§ 90, 94. "As a general proposition, every riparian proprietor has a natural and equal right to the use of the water in the stream adjacent to his land, without diminution or alteration." Washb. Easem. 319. "Riparian proprietors are entitled in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as is wont by nature, without material diminution or alteration." Gould, Waters, § 204. Chancellor Kent says: "Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below." 3 Kent, Comm. 439. "Aqua currit et debet currere ut currere solebat," is the language of the ancient common law. The right to a water-course begins ex pure naturae, and, having taken a certain course naturally, it cannot be diverted to the deformation of the rights of the riparian owners below. This is the language of all the common-law textbooks, and the decisions. Ang. Water-courses, § 93. "It is an ancient and well-established principle, said WESTON, J., that water cannot be lawfully diverted, unless it is returned again to its accustomed channel, before it passes the land of the proprietor below. Running water is not susceptible of an appropriation which will justify the diversion or unreasonable detention of it. Blanchard v. Baker, 8 Greenl. 266. "The general rule of law is that every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration." Lord ELLENBOROUGH, in Bealey v. Shaw, 6 East. 208, 214. By settled principles of both the civil and common law, the riparian owner has a usufruct in the stream as it passes over his land, of which he cannot be deprived by mere diversion. Pope v. Kinman, 54 Cal. 3. As a result of the American and English cases, the common-law doctrine is thus summed up in the editorial note to Heath v. Williams, 25 Me. 209; S.C. 43 Amer.Dec. 275: "The general principle is that every owner of land through which a natural stream of water flows has a usufruct in the stream as it passes along, and has an equal right with those above and below him to the natural flow of the water in its accustomed channel, without unreasonable detention or substantial diminution in quantity or quality, and none can make any use of it prejudicial to the other owners, unless he has acquired a right to do so by...