Wimer v. Simmons

• Decision Date: 11 February 1895
• Citation: 39 P. 6,27 Or. 1
• Parties: WIMER et al. v. SIMMONS et al.
• Court: Oregon Supreme Court

39 P. 6

27 Or. 1

WIMER et al. v. SIMMONS et al.

Supreme Court of Oregon

February 11, 1895

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Suit by Wimer Bros. & Co. against George Simmons and others for an injunction. Judgment for defendants, and plaintiffs appeal. Affirmed.

This controversy grows out of conflicting claims to water rights by the parties hereto. The plaintiffs are the owners of a ditch used to divert water from the east fork of the Illinois river, in Josephine county, at a point opposite or immediately below the mouth of Allen gulch. The point of diversion is upon the east side of said fork, and is conducted thence, in a southerly direction, to where it crosses the same stream by means of a flume constructed for that purpose, and thence continues in a southerly and southeasterly course to the plaintiffs' mine, located in what is known as "Butcher's Gulch," and finally runs into the west fork of said river. The ditch was constructed by Daniel Hunt in the year 1860, and is known as the Hunt or Wimer ditch. On September 2, 1876, George Simmons, one of the defendants, and Walter Simmons, his brother, became its owners, and sold and conveyed the same to Jacob, George W., and W.J. Wimer by two conveyances of date July 6, 1878, and February 7, 1883, respectively. On May 23 1888, Jacob Wimer conveyed his interest to his two sons George W. and W.J. Wimer, plaintiffs herein, and on July 18 1888, they sold the property to Anna F. Smith, but on November 31, 1892, again became the owners thereof through a sheriff's deed upon a sale under foreclosure proceedings against Anna F. Smith and W.I. Wadleigh. The defendants' ditch was constructed in the year 1856, and takes its water from the west bank of the same stream as the Hunt ditch, but at a point some 2 1/2 or 3 miles above. When first constructed, it was about 7 miles in length. A portion of the water diverted by this ditch was carried beyond the gulches known as Scotch, Allen, Sailor, Shelly, and Butcher's and into Fry, Waldo, and Caro gulches. The balance was used at Scotch gulch, and through it discharged, into the said east fork above the head of plaintiffs' ditch. This ditch, throughout its full length, with its branches, is known as the "Scotch Gulch" or "Desselles & Connell Ditch." In the year 1877, while William Bybee was operating some mining ground at the head of Allen gulch, he allowed the tailings and debris from his mine to be carried down to and across this ditch, and by this means it was filled up and obliterated for the space of some two or three hundred feet. From this time the ditch below the obstruction fell into disuse until the year 1891, when the defendants purchased the same from Desselles & Connell, together with their mining grounds at Scotch gulch, and reconstructed and opened it out again throughout its full length, including its branches, restoring it to about its original capacity. This ditch was purchased by Desselles & Connell, together with a placer mine of about 20 acres, located in Scotch gulch, in 1866, who worked their said mine every year from 1866 down to 1891, with the possible exception of a year or two immediately preceding the year last named. As to this the proof is not clear. However, George Simmons, one of the defendants, operated the mine for about nine months during the years 1887 and 1888 under a contract of purchase from Desselles & Connell, and at the time of the purchase by defendants it was practically worked out. Some work was being done there when the evidence was taken in this case, but it is of little moment. In 1888 some Chinamen mined in Allen gulch, and by purchase from Desselles & Connell utilized from 50 to 75 inches of water from said ditch. It appears that during the latter part of spring and during the summer and early fall, and at times during the winter months, there is insufficient water in the said east fork to supply both these ditches; hence this suit to restrain defendants from carrying the water of said stream beyond Scotch gulch and below the head of plaintiffs' ditch. The decree below being favorable to defendants, the plaintiffs appeal. Other facts sufficient for elucidation are alluded to in the opinion.

R.G. Smith, E.C. Bronaugh, L.L. McArthur, and W.D. Fenton, for appellants.

Lionel R. Webster, for respondents.

WOLVERTON J. (after stating the facts).

The plaintiffs contend that they are entitled to the quantity of water that has been carried through their flume at the crossing of the east fork of the Illinois river during the period intervening from 1877 to 1891. They base their claim of right upon the following propositions: (1) The owners of the defendants' or Scotch gulch ditch abandoned all that part of it below Scotch gulch in 1877; (2) the owners of said ditch abandoned all the water thereof that was turned or allowed to flow back into said stream through Scotch gulch in 1877; and (3) plaintiffs have acquired a prior and perfect right to the waters of said stream as against defendants by adverse possession and use during the time intervening from 1877 to 1891. It is the policy of the law that water of a stream shall be appropriated to the extent only that it is put to or designed for some useful or beneficial purpose. This is the measure of the appropriation. The entire appropriation may not be utilized at once for the purposes designed. In such case a reasonable time is allowable within which to make the application to such purposes, and the surroundings and circumstances of each particular case are elements for consideration in determining what is a reasonable time within which to complete and fix the extent of the appropriation. Hindman v. Rizor, 21 Or. 112, 27 P. 13; Simmons v. Winters, 21 Or. 35, 27 P. 7; Low v. Rizor, 25 Or. 556, 37 P. 82; Cole v. Logan, 24 Or. 304, 33 P. 568; Sieber v. Frink, 7 Colo. 154, 2 P. 901. A prior appropriator, having the exclusive right to the use of part or all the water of a stream, may lose the same by abandonment. When abandoned, the water becomes publici juris, and subsequent appropriators are entitled to it according to their respective priorities. The abandonment may be express and immediate, as by the intentional act of the owner and possessor of the right, or it may be implied from his neglect, failure of application to the purpose designed within a reasonable time, nonuser, and the like. Kin.Irr. § 253; Black's Pom. Water Rights, § 96. The right of a prior appropriator may also be lost by the adverse possession of another. Nonuser by the owner of the right and adverse user of it by another for a time equal to the period fixed as the limitation of actions for the recovery of real property is necessary in this state to work a forfeiture through this method. Id. § 98; Dodge v. Marden, 7 Or. 458; Water Co. v. Crary, 25 Cal. 508. These general propositions of law are well established, and it is unnecessary to support them further by citation of authorities. Keeping them in mind, let us consider the relative rights of the parties in the light of the facts as disclosed by the testimony.

For some years prior to 1877 the Desselles & Connell ditch carried from 600 or 700 to 1,000 inches of water to Scotch gulch. Beyond that, Desselles says, "it would carry about 400 inches." In answer to the question, "How many inches flowed down the ditch beyond Scotch gulch?" he replies, "350 inches, used by Joseph Smith in Scotch gulch, Spellman & Bro. in Allen gulch, some Chinamen in Sailor gulch, and Shelly & Co. below the town of Waldo, for mining and irrigating purposes." George Simmons, one of the defendants, says, in answer to the question, "How does the size of the ditch, since you cleaned it out, compare with the size of it as it was when the Wimer ditch was dug?" "Oh, it is about the same size." W.J Wimer, one of the plaintiffs, testifying in August, 1893, says that defendants at that time were carrying in their ditch, beyond Scotch gulch, 300 or 400 inches. He thought 300 inches at any rate, while plaintiffs were at the same time carrying from 150 to 200 inches. Considering that defendants' ditch intercepts the stream above that of plaintiffs', it is probable that water was flowing therein beyond Scotch gulch to the extent of its average capacity. The mines at Scotch gulch, which the defendants purchased with the ditch from Desselles & Connell, are practically worked out, so that they are unfit for profitable mining. George Simmons says, in effect, Scotch gulch is mined out,--the most of it. There are no mines there to amount to anything. There is one man there now working with a pick and shovel. This was the probable condition of these mines at the date of defendants' purchase in 1891, as it does not appear that they have ever been worked by them since they became the owners thereof. We deduce from this the defendants' intentions at the time of the purchase. It was not to work the mine at Scotch gulch, but to carry the water beyond, to the extent of the capacity of the old ditch, for use at such points as might be convenient. The evidence on this point is quite meager, and we can only judge of the intended use by that which they are now making of it. George Simmons says they are using a little for mining purposes at their mine, probably 50 inches, and some for irrigating grass and cultivated crops; that they "turned some of it down the river to the ranch; that Wimers ought to have turned the water out to irrigate," and "run a little water down to Decker." He also says they have valuable mining property, that it will take a number of years to work out. So that the use which defendants are making of the water is not dissimilar to that which Desselles & Connell made of it prior to 1877 beyond Scotch gulch, except that defendants...