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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (June 17, 1911)
TAG! TWO. OkXVS CAPITAL JOURNAL, BALEM. OREGOJi, SATURDAY, JUNE 17, 1911. the capital journal E. HOFER, Editor nd ?ror rlator. R. M. HOFER, Manager Sndeswndent Newspaper Derotetf to American Principle and the Pnwreu and Devekgaiient of All Oregon PubtUbed Erery Evening Except Sunday. SrOea, Ore. SUBSCRIPTION RATESl Onvtriably in Advance) kaUly. br Carrier, per year . , $6.00 Per month 60c fkUy, by Matt, per year- . 4.M Per month S5c VeeUy, by MtO, per year . LOO Six moethi . WV: FULL LEASED WIRE TEuEGRAPH RSPOKT SUPREME COURT EXAMINES INTO A VERY ORY WATER CASE It Goes Into All the Dips, Spurs, Angles and Variations of the Matter, Discusses More or Less Learnedly Some Ab- . struse Facts and Finally Lets the Litigants Come Out of the Same End of the Hole at Which They Went in, With the Privilege of Going to Law Again Over the Matter in as Many Directions at Once as Their Sweet Wills Dictate. OREGON SUPREME COURT DECISIONS Full Text Published bj Conrtesy of F. A. Turner, Reporter of the Supreme Court Allen DKeh Co., et al, t. Donnelly, et al, I'mntlllu County, Fred Andrews, Joseph Cuhna, Odd Teel, George T. Higginbottom, Mil dred Spike, Elvira Teel and The Al len Ditch company, a corporation, respondents, v. Frank Donnelly, Wil liam H. Daughtrey and J. G. Thomas, appellants. Appeal from the circuit court for Umatilla county. Hon. H. J. Bean, Judge. Argued and submit ted at Pendleton, May 3, 1911. Raley & Raley, for respondents. Carey & Kerr, Harrison Allen, R. R. Johnson and Frederick Stelwer, for appel lants. Burnett, J. Reversed. Fred Andrews, and other private persons comprising the Allen Ditch Co., a corporation, unite with that company as plaintiffs and bring this suit to enjoin the defendants from diverting any of the water of the Umatilla River, a non-navigable stream, from a point above the in take of an irrigation canal which plaintiffs aver they own and main tain by virtue of an appropriation prior and superior to any right of the defendants. Concerning the plaintiffs, the mov ing parties assert in Bubstance that the natural persons are the real par ties in interest and that the corpor ation plaintiff, of which they are all and the only "members, was organ ized by them for convenience and as a holding concern to manage the business of the diversion and distri bution of water to them as individ uals through their Irrigation plant. They allege in substance thaf the natural persons plaintiff are the own ers of large tracts of what was for merly arid land in certain sections In township 3 north, range 39 east of Willamette meridian . incapable of profitable use without irrigation; but the complaint does not describe the acreage owned by each individual or the irrigation requirements of any single tract or the use to which it Is put The complaint goes on to state that about 1870 the plaintiffs and their grantors and predecessors in Interest built a ditch and flume tap ping the Umatilla River at a point named and, diverting thereby 1080 inches of the water of t"he river, min ers' measurement under a 6-inch pressure, have continually used it on their lands for domestic purposes, watering live stock and the irriga tion of crops, all in an open, notor ious, exclusive and uninterrupted manner whereby they have reclaimed and seeded about 600 acres of these lands to alfalfa, orchard, shrubbery and ornamental trees, all of which would die but for the use of the wa ter. The plaintiffs then charge that about July 16, 1907, the defendants constructed a dam across the river at a point above the intake of plain tiffs' ditch, thereby turning the wa ter entirely away from plaintiffs' Ir rigation system and that defendants have continued and will continue to maintain the dam and diversion of the water unless restrained. The prayer is for the removal of the dam and to prevent the defendants from interfering with the flow of waters to plaintiffs' ditch and for general re lief. The defendant Thomas denied every allegation of the complaint and further disclaimed any interest in the controversy. The defendants Don nelly and Daughtrey admit the non navigable character of the Umatilla River and that they will continue to maintain their dam but otherwise traverse every allegation of the com plaint. They state also In substanco that Blnce May 18, 1907, they have been and are now the owners of certain lands in section 16 township 3 north, range 29 east described by metes and bounds upon which at all times mentioned In the answer was a grist and feed mill, the machinery of which Is propelled by water con ducted to.it by a race' and flume also the property of defendants, and that ever since December 27, 1S83, they and their predecessors in title by means of said race have appropriated from the Umatilla River and con ducted to the mill a sufficient quan tity of water to operate the mill and to irrigate lands along the line of the ditch. As a basis of their right to do this they aver that, in the years 1883-4-5 after this, appropriation of the water. J. H. Koontz. thptr nroiWoa. sor in title, "obtained from the own ers of all of the riparian lands on both sides of said Umatilla River from and adjacent to said point of intake of said mill race to and adja cent to said point of outlet of said mill race the rlehr. tn rllvnrr frnm Ita natural channel and convey from said Umatilla River and through said mill race, such portions of the water of said Umatilla River as might be necessary for the irrigation of the lands along the line of said mill race, and also to propel by water power any flouring mill, which might then or thereafter be constructed on the lands of the defendants, and ever since said time the said rights, so ob tained by the said James H. Koontz, have been continuously enjoyed by him, defendants' other predecessors in title, and these defendants." The defendants contend that the water thus appropriated Is essential to the operation of the mill and the irrigation of lands under their ditch and that their appropriation is prior and superior to any right of plain tiffs. Defendants also seek to estop the plaintiffs from alleging anything stated in the complaint because of the conveyances to Koontz by the former riparian owners of the right to divert water to his mill and for irrigation mirnnnoa an mo ni ...utu riparian owners were predecessors In title to some of the plaintiffs and as further ground of estoppel charge that at the time dofonHanto .1 lj auu I lit! 1 1 predecessors appropriated the water they knew that Koontz had taken the water and was using it for the pur poses of the mill and irrigation. They pray that, the plaintiffs be estopped to allege anything stated in the com plaint; that the right of defendants to use sufficient water of the river to operate the mill and to irrigate along their race be decreed to be superior to any right of plaintiffs and that the bill be dismissed with costs. The reply traverses the .answer in almost all its averments and affirma tively pleads an estoppel agalnstde fendants' allegations about the deeds from the former riparian owners on the ground. In substance, that in 18S9 after the execution of said deeds to Koontz, plaintiffs' predecessors In title. Including the riparian grantors of Koontz together with Koontz him self, then a land owner on the west side of the river, built a dam in the river at or about the point of the present Intake of plaintiffs' ditch and reconstruted the ditch and thereby openly and notoriously made a fur ther visible and exclusive appropria tion of 1080 Inches of the water of the river for use and which was used on their lands and the lands of Koontz then owned by him, continu ously since then for the beneficial purposes of Irrigation, domestic af fairs and watering live stock. The decree was in effect that the defendants were first of all entitled to enough water, without naming the quantity, to keep their wooden flume A 1 is: to Weak Heart Vr Many people suffer from weak hearta. They may experi- us murines! ot Dream on exertion, pain over the heart, or dizzy feelings, oppressed breathing after meals or their eyes beoome blurred, their heart ia not sufficiently strong to pump blood to the extremities, and they have cold fa an da and feet, or poor appetite because of weakened blood supply to the stomach. A heart tonio and alterative should be taken which has no bad alter-effeot. Such is Dr. Pierce's Golden Medical Disoovery, which contains no dangerous narootioa nor aloohol. The Ingredients, as attested under oath, are Stone mot rowfa...!. r. '.') Blood root (SMtnultmrla CtBsdemtl,). UokJen Seal root (Hydra.f,. cnedeo. . Queen's root (Stilllnrim SvlvMiirm hl-k riu...! i. ,.T7", Mandrake root (HopA7um Mrafioi), with triple mined slycerlm. prepami In scientific laboratory In a way that no druggist could Imitate. This tonio contains no alcohol to shrink up the red blood corpuscles ; but, on the other hand, it Increases their number and they become round and healthy. It helps the human system in the constant manufacture o( rich, red blood. It helps the. stomach to assimilate or take up the proper elements from the food, thereby helping digestion and curins dvsnensin. heart.hum fortahle symptoms, stops excessive tissue waste in convalescence Irom fevers : for the run-down, ansrmio, thin-blooded people, the " Discovery " is refreshing and vitaliziug. Stick to this ssfe and sane remedy, and refuse all " just as good " medidnes offered by the druggist who is looking (or a larger proht. Nothing but Ur. fierce's Golden Metlieal Discovery will do you hall as much good" from drying up In the summer time; that plaintiffs are next entitled to have 500 inches, miners' measure ment, flow down their . ditch; that thirdly, defendants have enough wa ter to operate their mill and to Irri gate not to exceed 100 acres of land under their ditch after which, fourth ly, plaintiffs should have 580 inches of water, making the total of 1080 inches claimed at the outset The defendants were enjoined from inter fering with plaintiffs' rights as thus defined and were cast in costs and disbursements amounting to $1083.15. The defendants appeal. Burnett, J. The Umatilla River is an unnavigable stream which takes its rise in the Blue Mountains near tbe eastern boundary of the county bearing its name, and after receiving various affluents, flows In a general north to northwest course in passing the lands mentioned in this suit The holdings of the plaintiffs are on the west side and premises of the de fendants are on the east side of the river. After the fall rains have set in and until the melting snows of the mountains are gone in the early summer, there Is enough water for all purposes; but by July the river gets low and, until some time In Sep tember, there is a scarcity of water for late crops, such as the second and third crops of alfalfa, and not enough to operate the defendants' mill to its full capacity. The pleadings cannot be construed into a suit to ascertain and declare the respective rights and priorities of the parties In the use of the waters of the river. The plaintiffs pray for the utter demolition of the defen dants' dam so that the whole river may flow without hindrance to the intake of the Allen ditch; whi'e the defendants, by the erection of a con crete dam entirely across the river above the diversion plant of plain tiffs, coupled with their avowed pur pose to continue that policy, evident ly intend to keep the water entire ly away from the plaintiffs when their need is the sorest. In brief each party wants all the water. Both plaintiffs and defendants claim as appropriators and not as riparian owners. The t';fendants ar gue that at the time the plaintiffs di verted the water in the first instance, the stream was not one from which water could be appropriated in the legal sense of the word because the riparian ownership of the lands be low the point of diversion had passed from the general government into private hands prior to the Act of Congress of March 3, 1877, known as the Desert Land Act, and prior also to the diversion upon which , plain tiffs found the Inception of their claims. The defendants construe the act mentioned to mean that whereas, before its enactment, appropriation could only be made where all the lands adversely affected were in the public domain, now since its passage the first appropriator may lawfully take the water of a stream without regard to whether the lower riparian owners are private individuals or the general government; but that plain tiffs cannot claim the benefit of that Act because they diverted the water before its passage. But we think that neither the plaintiffs nor the de fendants are in a position to raise this objection to appropriation as against each other because none of them is a riparian owner and the claim on both sides is that of appro priation. No one can claim both as a riparian owner and as an appropri ator at the same time. While he may be one or the other of those charac ters he cannot be both. Davis v. Chamberlain, 51 Or. 304. Some ripar ian owner defending or attacking as such might, in a proper case, raise that question, but no such party is before the court in this proceeding. We conclude that as between the par ties and on the record before us the waters of the Umatilla River at all the times mentioned in the pleadings were the subject of appropriation in the legal sense of the word. The plaintiffs assert title to the use of 1080 inches of water and of fer as proof of that amount the de cree of this court in the case of the Oregon Land and Construction Co. v. The Allen Ditch Co., a plaintiff in this suit. The case is reported in 41 Or. 209. The plaintiff there as a lower riparian proprietor soueht. to enjoin The Allen Ditch Co. from di verting the water of the river in question ,away from the down stream lands of the plaintiff; but that suit was successfully defended on the ground that the defendant had ac quired title by prescription to the use of 1080 Inches of water as against the plaintiff, having used the water ad versely for more than 10 years con tinuously. But the conclusion reached in that litigation bound only the parties to that suit and hence cannot be used by the successful con testant there as evidence in Its favor against the defendants here who are strangers to that proceeding. Ex cluding that decree from the evidence here, as we ought, no definite testi mony remains even as to the aggre gate amount of water diverted or needed by the plaintiffs, much less as to the .particular amount required or useful for the separate tracts owned by the several Individual plaintiffs. Equally indefinite is the testimony on behalf of the defendants relating to the actual amount of water origi nally appropriated by their prede cessors in title to the mill property or requisite for the purposes in con templation at that time. In 188.1 Mr Koontz, the founder of the milling in dustry there, built a flouring mill having a capacity of 50 barrels every 24 hours. After It had been In oper ation for about two years It was deP Biroyea by Are and he afterwards built, a new mill with the enlarged capacity of 150 barrels per day, re quiring greater water power. Ma chinery for manufacturing alfalfa meal has also been added to the mill ing plant since the first appropriation on the east Bide of the river The defendants seem to count upon the deeds from the former riparian owners to Koontz as giving the pres ent owners of the mill unlimited and exclusive right to take the water of the stream in quantities ever increasing- in proportion as their milling plant Is enlarged even to the diver sion of the whole river Into the mill race. We do not so construe the terms of those deeds nor give them the effect desired by the defendants. Th deeds conveyed to Koontz the right to divert from Its natural chan nel and rway from the land of the grnntors through the mill race "such portions of the water of the Umatilla n'ver as may he necessary for Irri gating purposes along the line of Ro'ots Barks Herbs That have great medicinal power, are raised to their highest efficiency, for purifying and enriching the blood, as they are combine in Hood's Sarsa parilla. 40.366 testimonials received by actual count in two years. Be sure to take Hood's Sarsaparilla Get it today In usual liquid form or chocolated tablets called Sarsatab said mill race and also to propel by water power any Souring or other mill which may hereafter be con structed by the said James H. Koontz, his heirs or assigns at or near the town of Echo." This language of those deeds clearly indicates only a partial and not a total diversion of the stream as contemplated by the parties. It amounted to a license to the grantee to appropriate water suf ficient for the enterprise then in vtew. He had the right to make one appropriation and to follow It up by actual application to the useful pur pose designed within a reasonable time; but that would determine his right as of that date, if indeed it did not exhaust his privilege under that license. At any rate each new enter prise or material enlargement of the old one requiring additional water would call for a new appropriation. The parties to the deeds by their subsequent conduct put upon those writings a construction In conso nance with the Idea that the mill was to have only a part of the water. Without dispute, it appears in the testimony that after the mill had commenced operations, Its then own er, Mr. Koontz, joined with his gran tors in those deeds and other par ties, plaintiffs predecessors, in build ing headgates and dams and recon structing the ditch now owned by plaintiffs, whereby the water was taken upon and made an appurte nance not only to their lands, but also to his own land on the west side of the river which he afterwards conveyed to plaintiff Andrews "with all the tentements, hereditaments or appurtenances thereunto belonging or in anywise appertaining." There was then water for users on both sides of the river. Mr. Koontz could not in equity and good conscience avail himself of the assistance of his then co-workers to reclaim his land and make the water appurtenance thereto as well as to their holdings and destroy the appurtenance after he had conveyed the land to one who bought on the faith of the then situ ation created by Koontz himself. His grantees stand in no better con dition. They also took with know ledge of the situation as it then stood and were put upon their In quiry. Before the country was so thickly settled as it is now the practice for the appropriator of water "to keep all you get and get all you can" was in many cases tolerated; but yield ing to reason and Justice to all, the later authorities have established a different rule. We conceive it to be the law, except as modified by stat ute, that the right of a prior appro priator is paramount, but the right is limited to such an amount of water as is reasonably necessary for such useful purpose and project as maybe fairly within contemplation at the time the appropriation is made. Following the appropriation the ap propriator is entitled to a reasonable time within which, by ordinary dill gence, he may complete the project and actually apply the water to the useful purpose intended. What is reasonable both as to the amount of water and as to the time any given project may e completed must de pend upon the facts and circum stances or eacn particular case. Ison v. Sturgill, 109 Pac. 579 and Porter v. Pettengill 110 Pac. 393 are instructive cases on . these matters. Under the principle already noticed that any material enlargement of an original project or the inauguration of a ney enterprise requiring addi tional water would call for a new appropriation which must be in sub ordination to the rights of others as then existing, the testimony on the ! part of the plaintiffs Is not clear as to the scope of the undertaking in which they and their predecessors in interest at first engaged. We are un able to determine whether either plaintiffs or defendants have merely carried out their original designs or whether they have gone on into new and enlarged ventures demanding more and more water until, as ap pears bv the pleadings, they both want all the water. We are satisfied from the evidence that plaintiffs and their predecessors were using the water for domestic purposes, watering live stock, and irrigating on tho west side of the riv er before the diversion of water to the mill on the east side; but to what extent either 'in the aggregate or as to any particular tract is not dis closed by the record before us. Both plaintiffs and defendants have devot ed their energies in this litigation, In the main, to the establishment of mere priorities without reference to what Is a reasonable amount of wa ter to be used or what amount was In fact annropriated in the first in stance. Under such circumstances, while we are satisfied that all the parties have rights In the water as against their opponents here, the record does not furnish us sufficient data upon which to declare or to de fine those rights with that certainty necessary to support the extraordi nary remedy of injunction. To au thorize an Injunction, the rights which it is designed to protect should be established with certainty and to that end all persons Interested in the things about which the dispute has arisen should be brought before the court. This was done in Hough v. Porter 51 Or. 318; 95 Pac. 732; 98 Pac. 1083. where Justice King points out the futility and waste of effort in attempting to settle such a contro versy by piecemeal. We conclude that the decree of the circuit court should be reversed and the suit dismissed without costs or disbursements to either party and without prejudice to any other suit either may deem it advisable to in stitute concerning the matters in dispute. Children Cry FOR FLETCHER'S CASTOP I A CRUISER BOSTON IS ON HER WAY AViUi BE G1VEX A BIG AM) NOISY WEIX'OME WHEN SHE HEACHES PORTLAND, PROB ABLY TOMORROW AFTER. XOON. The famous old fighting cruiser, Boston, has been turned over to tbe state of Oregon, in her old age. thei transfer having been made yesterday at Bremertpn, Wash. She has sailed for her home port, Port land, and is expected to enter the Co lumbia this afternoon. Governor West, Adjutant-General Flnzer. May. or Simon and other great of Oregon will go down to meet her at Rainier, and she will then come on to Port land tomorrow. All the available craft at Portland will go down to the mouth of the Willamette to meet her, and she will be given as glad and noisy a welcome at Portland as the Innumerable vessels can, give her with whistles, sirens or any other steamboat equipment capable of making a noise. It is the intention to send her on a cruise to Coos Bay in the near future, as her maiden trip under her new ownership. o COUNTRY WORKED UP OVER HILL MURDER Mllwaukle, McMlnnville and Ore gon City each think the murderer of the Hill family, at Ardenwald, Is in their section. Mrs. R. F. Kuhn, of Milwaukle, has received a letter with a newspaper clipping of the murder story, and the threat "You are the next.'' The pellce think It only a senseless joke, but are keeping close watch of the house. A man acting strangely has been arrested at Mc Mlnnville and another has been chased by a gang of men, at Oregon City, who was suspected of being the murderer, but no clues are yet found Teachers' Examinations. Notice la hereby given that the county school superintendent of Ma rion county will hold the regular ex amination for applicants for state papers at the Salem high school, com mencing Wednesday, June 21, at 9 o'clock a. m., and continuing until Saturday, June 24, at 5 p. m., as fol lows: For state- certificates (one-year, five-year, life). Wednesday a. m. Arithmetic, civ il government, English literature. Wednesday p. m. Geography, grammar, physics. Thursday a. m. Orthography, theory and practice, bookkeeping. Thursday p. m. Writing, physiol ogy, geology. Friday a. m. U. S. history, phys ical geography, botany. Friday p. m. School law, pyschol ogy, geometery. Saturday a. m. Reading, algebra, general history. Saturday p. m. Composition, American literature, history of edu cation. For state primary certificates. Wednesday a. m. Methods in reading, methods In Arithmetic. Wednesday p. m. Methods in lan guage, methods in geography. Thursday a. m. Orthography, theory and practice. Thursday p. m. Writing and phy siology: Friday a. m Thesis. Subjects for thesis: Lessons by stories, lan guage work in primary grades, num ber work in primary grades, busy work in primary grades, possibilities of nature study in primary grades, phonics In primary grades, child study.1 Applicant chooses one sub ject. Friday p. m. Phsychology Note. Questions' on theory and practice, writing, arithmetic, physi ology and psychology will be the same for primary certificates as for other certificates. W. M. 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