William Hanley Co. v. Harney Valley Irr. Dist. No. 1

• Citation: 93 Or. 78,180 P. 724
• Parties: WILLIAM HANLEY CO. v. HARNEY VALLEY IRR. DIST. NO. 1.
• Decision Date: 17 June 1919
• Court: Oregon Supreme Court

180 P. 724

93 Or. 78

WILLIAM HANLEY CO. v. HARNEY VALLEY IRR. DIST. NO. 1.

Supreme Court of Oregon

June 17, 1919

In Banc.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Application by H. M. Horton and others for organization of an irrigation district. From a decree affirming the order of the county court organizing the Harney Valley Irrigation District No. 1 the William Hanley Company appeals. Decree reversed, and order set aside and reversed, and proceeding remanded, with directions.

This is an appeal by William Hanley Company from a decree of the circuit court, affirming an order of the county court organizing the Harney Valley Irrigation District No. 1, under the provision of chapter 357, Gen. Laws Or. 1917.

It is stated, in substance, in the briefs that Silvies river rises in the Blue Mountains on the south side of Strawberry Mountain, and flows in a southeasterly direction about 50 miles, where it enters Harney valley proper, and then continues for about 25 miles in a southeasterly direction across the valley, emptying into the north side of Malheur Lake in township 25 south, range 32 1/2, E. W. M. About 3 miles below the point where it enters the valley the river divides into two forks known as the East fork and the West fork of Silvies river; the territory lying between these two forks of the river being commonly and locally designated as "The Island." Harney valley is practically level sloping gently to the south and east from Burns to Malheur Lake. Thousands of acres of the valley situated on the Island and along both forks of the river were naturally overflowed from the river in the spring and early summer months, forming natural wild meadow lands, and in places where the water is the deepest swamp grasses and tules grow in abundance. By individual systems of irrigation, as well as by combined systems of irrigation, the owners of these lands from time to time during the last 30 years have controlled the natural flow of the waters of the river by means of dams erected in the river at various points, and canals and ditches leading therefrom, and have taken the waters out onto the higher ground, thereby making both classes of land produce abundant crops of wild hay. The appellant, William Hanley Company, for a great many years has been the owner of what is commonly called "Bell A" ranch located about 2 1/2 miles southeast of Burns, Or., and consisting of between 7,000 and 8,000 acres of land. These are practically wild meadow lands and grain lands, and lie on either side of the East fork of Silvies river. Appellant asserts that:

"These lands have permanent, established, and decreed water rights and have been for many years last past, and are now thoroughly irrigated and reclaimed from the waters of Silvies river, and each year grow abundant crops of natural wild meadow grass and grain, besides providing abundant pasture for stock after the crops are harvested. The system of irrigation has been built up from year to year by the construction of canals, ditches, dams, and levees, which completely distribute the water over the entire surface of the ground during the irrigating seasons."

The construction of this system cost not less than $40,000.

In ordinary years there are grown on these lands from 6,000 to 8,000 tons of natural wild meadow hay. Approximately 3,600 acres of this irrigated land of appellant are included within the proposed land of the irrigation district. The record shows as follows: In August, 1917, 69 landowners signed and presented a petition to the county court of Harney county, Or., proposing and asking for the formation of an irrigation district under the provisions of chapter 357, Gen. Laws Or. 1917. The petition is, in substance, as follows:

"We, the undersigned citizens of the United States, constituting a majority of the owners of land within the boundaries as hereinafter described, or who are bona fide claimants to unoccupied land under the laws of the United States, or of the state of Oregon, all being duly qualified electors under the law of the state of Oregon for organizing irrigation districts, being desirous of forming an irrigation district embracing the land hereinafter designated within the boundaries hereinafter described and set forth, and utilizing the waters of the Silvies river, Foley slough, and Poison creek for the purpose of irrigation and the reclamation of said lands, do hereby petition your honorable court as follows:

"That it is the purpose of the undersigned petitioners to organize an irrigation district under and by virtue of the irrigation district laws of the state of Oregon as recited in chapter 357, General Laws of Oregon 1917, providing for the organization and management of irrigation districts, and that your honorable court do proclaim a district as set forth herein, designating the name of said district dividing said district into three subdivisions and defining the boundaries thereof, and that your honorable court proceed with such dispatch as may be under said law to call an election for the purposes above set forth, and to do all things necessary under said law for the formation of said district, designating the time and places for voting at said election, and that the boundaries and description of land under said district shall be as follows, to wit."

Here follows a complete description of the boundaries of the land proposed to be embraced within the irrigation district, containing in all 43,638.02 acres more or less according to the government surveys.

On the 6th day of September, 1917, the date mentioned in the petition on which the same would be presented to the county court, the petitioners filed proof of publication of notice of petition, the substance of which is as follows:

"I, Bert Wheeldon, being first duly sworn, say I am foreman of the Harney County Tribune, a weekly newspaper published at Burns, Harney county, state of Oregon, and of general circulation, and that the notice of petition for irrigation district, of which the annexed is a true and correct copy, was published in the Harney County Tribune proper, and in the regular and entire issue thereof once a week for a period of four weeks, beginning on the 8th day of August, 1917, and ending on the 5th day of September, 1917, and that the Harney County Tribune was regularly issued and published during said period."

This was attached to the petition and notice as published. On October 4, 1917, appellant filed objections to the petition, describing its land which was included within the proposed boundaries of the irrigation district, and protesting against the organization of the district upon the following grounds:

"First. That none of the petitioners whose names appear on said petition is shown by said petition to possess the qualifications required of such petitioners.

"Second. That the petition is insufficient to give the court jurisdiction to act in this proceeding.

"Third. That the publication of said petition and the notice of the hearing thereof were insufficient to give the court jurisdiction herein."

And on the same date the William Hanley Company, by its attorneys, petitioned the county court for the exclusion of its lands from the boundaries of the irrigation district for the following alleged reasons:

"That all of said lands have been for many years last past and now are fully and completely irrigated and reclaimed, and come under the classification of irrigated lands designated in the Act of 1917, chapter 357 of the Laws of Oregon, providing for the organization of irrigation districts.

"That these lands hereinabove mentioned and described, now being fully irrigated and reclaimed, and having ancient and established and decreed water rights attached thereto, should not by right be included within the boundaries of said proposed irrigation district, and would be entitled to be excluded from the boundaries of said proposed irrigation district should the same be formed as petitioned for, in accordance with the provisions contained in section 37 of said Act of 1917, Laws of Oregon.

"That the said lands hereinabove described have at the present time, and for many years last past have had, a complete system of irrigation and drainage, which system is applicable to the above-described lands only, and that the said lands are not in any way whatever necessary to the formation or construction of said proposed irrigation district, or to any part thereof, and can be excluded therefrom without injury to the same."

And also averring that on September 22, 1917, at a meeting of the petitioners for the proposed irrigation district after a general discussion of the matter, they voted unanimously to exclude appellant's lands from the district; and that the lands were included within the boundaries of the proposed district without the knowledge or consent of the Hanley Company; and praying that such lands be excluded from the boundaries of the proposed district. Objections to the organization of the district were filed which are not material upon this appeal. On the same date the county court overruled the objections and made findings in the matter of the organization of the irrigation district in substance as follows:

"The court finds that the requisite number of owners of land within the proposed district have petitioned for the formation thereof, and it is hereby ordered that said petition herein presented contains the signatures of 50 and a majority of the bona fide landowners within the boundaries of the proposed district having the qualifications as defined in section 29 of chapter 357 of the General Laws of Oregon 1917."

Whereupon the William Hanley Company appealed to the circuit court. At the time of the hearing in the circuit court on ...