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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Jan. 2, 1912)
Mill CAPITAL IQCKXAI, SALEM. OKECOX. TlXSDAY, JAM7ABT. i, 1912. PAGK BIX OREGON SUPREME COURT DECISIONS (Continued from Page 3.) new matter In such answers appears in the record. In brief, no Issue Is raised among the defendants except those predi cated upon the cross petition of the May Park Water Co. and the answers to the same as hereinbefore noted. The circuit court found In substance that the plaintiff had made a valid appropriation of 265 Inches of water out of the Grand Bonde river, miner's nieaHurement, under six-Inch pressure prior to any and all the defendants or any of their stockholders or pre decessors and proceeded In detail to ascertain and fix the amount and or der of priority not only of the claim of each defendant, both Individual and corporate, but also of each stock holder In each private corporation defendant, and passed a decree ac cordingly with costs and disburse ments proportionately adjusted among the parties plaintiff and defendant. The Oro Dell Canal Co., May Park Water Ditch Co.. Nessly Ditch Co. and J. n. Stoddard severally appealed from this decree and each appealing de fendant served Its notice of appeal on every other party to the suit. Burnett, J. We have bofore us, as active parties on this appeal, the plaintiff and the defendants last above named. The other defendants, seem ingly satisfied with the decision of the circuit court, have not questioned It here but, having been warned by the notices of appeal served upon them to defend in this court the award of the court below respecting their claims, they must abide the de clnlon on appeal. It Is plain that, although the plain tiff's lnnd bordejs on the river, he Is maintaining his suit as an appro- prlator, and not as a riparian propri etor. One of the distinctions between appropriation of water and use by a riparian proprietor Is that the former contemplates tenancy In severalty, while tho latter Is essentially a ten ancy In common with all other rip arian proprietors on the same stream or domestic use Including water, not only for his household, but also for such animals as are essential for the proper sustenance of his family, the upper riparian owner may take so much of the water of a natural stream as may be necessary for that purpose although none may he left for the lower riparian owners. So far the use Is grounded on actual necessity. Hut Irrigation Is not so essentially a vital requirement and ' riparian use for that purpose Is Urn lied at all times by the condition that it must be so exercised as not to ma terially injure the rights of other rip arian owners In the proportional use of the water of the same stream for the irrigation of their riparian lands. On the other hand, an approprlatnr, subject to rights In existence at the time his appropriation is made, may take nil the wator i can use rea sonably and without waste for a bene ficial project, although it may be the lion's share and none may he left for those who come afterwrads. In jth:' words, a rlparlnn owner, using wtir In that capacity, Is In a sense always a tenant In common with other rip arian owners on the sume stream whose rights, at least for irrigation, he Ib bound not materially to Injure by hl rlpnrlnn use of the water. The approprlntor, however, U nlwnys n tenant In severalty owing no dury or respect to those endeavoring to umj tho water by title subsequent to his own. It is the established doctrine In this state that a settler upon public lands, which border upon a nonnav-. Ignble stream, may claim the usj nf water, either as a riparian owner or as an approprlator, but he cannot d both. The exerclae of one right Is In substance a waiver of the other. I.ow v. Schnffer, 24 Or. 2:19; North Powder Milling Co. v. Coughanour, 34 Or. 9; Prown v, linker, .19 Or. fiu; Davis v. Chamberlain, 51 Or. 304. A reason for this is that one cannot at the same time hold title to the ame thing both ns a tenant In com mon and In severalty. Applying these principles to the complaint, we ob serve that the effort of the plaintiff is to have a fixed quantity of water oirregatod from the whole amount flowing In the river past his laud and appropriated to bis exclunlve behest, thus destroying one of the essential characteristics of riparian user con sidered us a tenancy In common. In the very nature of things, a court can not fix In advance by Its decree what quantity of water will be reasonable In tho future for the use of a riparian proprietor claiming the duty of water In that character. This conclusion is a necessary corollary to the caso of Jones v. Conn, 39 Or. 30, 61 Pac. 855, 6.'. Pac. 1068. The essence of the con troversy between the parties there, both of whom claimed as riparian proprietors, was whether the land on which the defendant was using the water was In fact riparian. The de fendiint, however, thinking to have ' settled the amount of water to which he was entitled as a riparian owner In the future, asked the court to de cree to him the exclusive use of 2673 Inches of water regardless of the ef- ' feet It might have on other propri etors. This court declined to grant aim such relief claiming, as he did, as riparian owner merely, but on the contrary, granted an Injunction against him to prevent him from ac quirlug the use of a fixed amount by prescription. The reason is that among riparian owners the contin gencies of the future are so many and varied respecting the amount of rain or snow fall, the heat or humidity or summer, the alternation of crops and the like, that it is quite Imparctlcable, If not Impossible, to determine in ad vance the question of the duty ot oir tnr each rinarian owner. Be sides, a decree of that kind would be a virtual partition of the water from an estate In common to one In sev eralty, although there would be no rule whereby the estate of any single owner could be determined, owing to the unknown factors already noticed. Claiming then as he does from the month of June, 1863, the right to use a fixed quantity of water upon his land without regard to Us duty to others, the plaintiff assumed the char acter of an approprlator in this liti gation, and must be held to have waived his rights as a riparian pro prietor, at least for the purposes of this suit, although the river in its natural course washes his land. The same reasoning applies to the answer of the defendant J. B. Stoddard and classes him also as an approprlator, although the land he owns abuts upon the natural channel of the river, for he claims the right to the exclusive use of 100 inches of water because, as he alleges, his predecessors di verted that amount of water upon that land In 1862. In legal effect, his af firmative answer makes him assume an attitude In the case similar to that of the plaintiff, viz: that of an apppro- prlator. True enough he says that he requires that amount of water in the conduct of what he Btyles Inten sive farming, which Is well enough to say as an approprlator, for even such a user of water 1b limited to what Is reasonably necessary in the prosecution of a beneficial enterprise. His needs, however, furnish no stan dard of adjudication among riparian users, unless the needs of others in the like situation are also taken Into the account and this feature Is en tirely wanting In his answer. The fact that one owns land bordering up on a stream does not Inevitably con fine him to use of the water merely as a riparian owner, neither does it prevent him from establishing his point of diversion on his own land. Primarily any use of the water ot a natural stream for a beneficial pur pose is free to him who has an oppor tunity to take it without Infringing upon the property rights of another. At least on the Pacific slope, the exi gencies of mining and agriculture have established this principle since the earlleBt times, The general govern ment acquiesced In its application since the first settlements under the American regime and by the act of Congress of July 26, 1866, U. S. Comp. Stat. 1901, 1437 and in the act of, March 3, 1877, commonly known as the desert land act, has enunciated the doctrine in statutory form. Concerning the mere diversion and use of ator there Is no difference between a non-rlparlan approprlator and a riparian user, provided the for mer has a lawful right of access for that purpose to the stream from which the diversion Is made. The essential condition of appropriation In the first place on public lands was the consent or acquiescence of the then riparian owner, tne general government. Tho reason of the rule Is not changed by I the fact that the riparian owner Is a prvlate person provided the approprl ator has his consent or what is equlv olent, that the approprlator and the riparian owner are one and the same person. The deduction then is that if any one can lawfully gain access for that purpose to a non-navigable stream, and water is there not sub- Ject to use by another, such a one ! may appropriate It for his own use That a rlparlnn owner may appropri ate water, his point of diversion being on his own land, is taught by Brown v. llaker, 39 Or. 66, 65 Pac. 799, 66 Pnc. 193; Morgan v. Shaw, 47 Or. 333 83 Puc. 534. The plaintiff and the defendant. Stoddard, although they are both rlu- arlan owners, nre entitled to waive their rlnbts as such and to claim as appropriators and are authorized to so fiamo their pleadings. The cor porate appellants must perforce claim only as appropriators. for they do not profesa to own any lands, either rip arian or away from the river, and are avowedly conveying water to lands that are not now riparian and were never Buch even In the hands of the orlglnnl grantees of the government. It follows that the plaintiff and these defendants appeallnir are lief.n,, ,i. tho character of appropriators, and ! .... iieuniui owners and as such we must consider them. The question Is consequently re duced to one of priorities In the first Instance, for (be fundamental prin ciple of appropriation of water . I distinguished from use, Is that he who prior m time Is superior in right to the extent ot his appropriation. opt-uns t. Hamilton, 21 Or. 3; v. Reed. 42 Or. 76, 70 Pac. UYli nrltt It Is necessary to this phase ot the question to examine the proofs of fered by the corporate appellants in connection with their traversed alle gations resiiectin thai chancer which they p. Wu d scop, of thalr .,.(k.u- . l,r"- Ises. This allegation, commuu iu thir answers in the nature of a cross - .it bill against the plaintiff, advances the theory that the corporate appellants are mere holding concerns sustaining only an ancillary or administrative relation to the successors of the orig inal appropriators of water above the plaintiffs land. It was evidently framed for the purpose of enabling the corporate appellants to trace their alleged title by appropriation back to the original settlers and to prescribe under their acts in the use of the water. The doctrine has been laid down by this court in Oregon Construe tion Co. v. Allen Ditch Co., 41 Or. 209. that where Individual appropriators do not surrender their rights to a cor poration which is organized merely to facilitate distribution of the water among them, there exists such a priv ity of estate as to enable it to defend In their behalf in litigation affecting their rights to the use of the water. The reason for this holding is found by analogy in the provision of our statute allowing a trustee of an ex press trust to sue without joining with him his cestuy que trust. L. O. L., Sec. 29. But this docs not dispense with the requirement that if such are to be the objects and purposes of the company they should be specled in their articles of incorporation. The powers of a corporation are defined and limited by its articles. Especially as against a Btranger, it cannot go beyond them. Oregon Rail road & Navigation Co. v. Oregonian Ry. Co., 130 U. S. 1 ; State v. Portland Gen. Elec Co., 52 Or. 502. The articles of the Oro Dell Canal Co. show that the business In which It proposed to engage was "the appropriation of the waters of the Grand Ronde river by a ditch or canal" which Is described in general terms " said water to be used for Irrigation and such other purposes as may be deemed ex pedient and profitable by said cor poration." The Irrigation Canal Co. was Incorporated by articles which declare that "the object of said com pany and the enterprise in which it purposes to engage is the taking of five thousand Inches of water out of Grand Ronde river in Union county, Oregon, by means of a canal or ditches for the purpose of Irrigation." The Nessly Ditch Co. declares that "The purpose for which said corporation Is formed and the business In which it proposes to engage is to construct, maintain and operate irrigating ditches; to buy, sell or rent real es tate; to Irrigate the same at any place within the state of Oregon, or to do any thing or act necessary to carry out the purposes and objects of this corporation." The articles of In corporation of the May Park Water Ditch Co. are not in evidence and hence it Is without proof of Its con troverted allegation concerning its corporate powers. These article above quoted do not prove the character in which the corporate appellants appear on the record. The pose substantially as trustees or holding concerns, but their charters show them to be Inde pendent institutions operating in their own rights. If they had . organized with the Intention of usurping the possession of private ditch owners their articles need not have been stronger. They certainly do not Indi cate any ancillary relation to those who took out water for private use In the early days in that country. As fur as their characters are disclosed by the evidence, they stand before the court In their own Independent rlsht8, wthout obligation to any one not a party to the suit. Neither do any of the corporate appellants Bhow any transfer to them selves, either directly or by mesne conveyances from any original settler, of any water right or real estate to which such a right is appurtenant. As against the plaintiff, the evidence Is quite consistent with the theory tlmt these defendants either Jumped the water rights and ditches of the original settlers or took possession of some abandoned works for their own use. Neither of theBe would give them priority over the plaintiff, for it would not amount to such a tacking ns to relate back to any prior appro priation. The deduction Is that, so far as pri ority over the plaintiff Is concerned, none of the corporate appellants can claim before the date of Its Incorpor ation. Hearing In mind the dates on which they were severally Incorpor ated, we see that none of them ante dates the plaintiff's appropriation in 1865. As to the defendant, Stoddard, who has owned since March 26, 1906, part of the Jaeoh Nessly homestead, the earliest date fixed by any witness for the use of water for irrigation on tnat holding, and then definite only as to the year, is stated by Mrs. Proeb- s,,, he In 1S68. In deed, she snvs her father had water on the place several years before to water a small garden, using it when the season was dry and not using It when the season was wet; but this is not definite enough to overcome the direct testi mony of the plaintiff ami his wit nesses to the effect that he made his appropriation in 1S65. The corporate appellants contend tthat the plaintiff Is estopped to com plain of their several diversions of the water because he was sometime president and manager of the defen dant Irrigation Canal' Co.. enlarged a:" uw alien or that company " . ' "R""r "e'n. It 001 how any of these defen M '-eiU-W is Famed for it's Cooks tG Hit I To mention the South is to sug gest "good cooking." The South is the home of Cottolene, and more of the product is used there in pro portion to the population than in any other part of the country. This is simply because Southerners know that cotton oil is a pure, vegetable product, and the best cooking fat known. Cottolene is made from choice, refined cotton oil, and packed "Nature's Gift from the Sunny dants except the Irrigation Canal Co. could in any event plead that as an estoppel because that conduct did not make them change their position In any respect. But granting that It could be urged and that it is well pleaded, in our judgment estoppel is not established by the evidence. Sup posing the water of a stream to be the subject of appropriation, unless It Is all included In the first taking, there may be successive appropria tions as long as any water remains for such diversion and the priorities will not be thus destroyed. It was consequently competent for the plain tiff, either as an individual or as a member of a corporation, after he had made the appropriation alleged in his complaint, to make another appropri ation, either on the same land, or on other land without losing his priority or being estopped, if nothing else is shown. That is the condition of the affair as disclosed by the pleading and testimony. No estoppel or adverse user, or prescriptive right can arwu under such circumstances until the appropriation of the first taker is sensibly diminished in quantity by the subsequent diversions. As long as there Is enough water for all, no such hostile claim Is Initiated by a mere subsequent taking. Bowman v. Bow man, 35 Or. 279, 57 Pac. 546; Carson v. Hayes, 39 Or. 79, 65 Pac. 814; Britt! v. Read, 42 Or. 76, 70 Pac. 1029. We turn now to the cross petition of the defendant, May Park Water Co., and the answers to it already noted. What has been already written here respecting the affirmative matter in the answers of the corporate appel lants applies in principle to the cross petition in question. In brief, the May Park Water Co. assumes the role of a mere manager or trustee while us articles do not authorize such an cillary relations, neither does it show any transfer to it of any of the nron- erty for which it defends. Like the corporate appellants. It alleges no in terest In the water In Its own right, and its charter does not give It the authority to act as a holding concern. H fails to prove its allegation of the capacity in which It Is acting. We cannot approve the decree of the circuit court so far as It attempts to adjudicate the rights of individuals who happen to be stockholders in the several corporations named. These people were not parties to this suit. The court might have caused them to he made parties but it did not and their individual Interests are not in volved in the Issues joined. When they come before the court in their own right, either as plaintiffs or de fendants In appropriate litigation it w ill be time enough to determine their rights and liabilities. Aside from the cross petition of the May Park Water Made only by THE N. K. Co. no issue was made between the defendants. . In the absence of Issues on the subject, the court cannot prop erly make a decree affecting the rela tions of the defendants to each other. Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472; Whited v. Calvin, 55 Or. 98, 105 Pac. 396. The result of the analysis is that the question is between the plaintiff and the defendants without reference to possible disputes among the latter and that the plaintiff is prior in his appropriation to all of the appellants and, as we believe, from the evidence, to all the other defendants. It Is next In order to consider the quantity of water in the use of which the plaintiff is to be protected. ,The pleadings are framed as to all parties on the basis of a continuous flow of water at a certain rate In miner's inches, under a six-inch pressure. Some of the appellants urge that be cause the plaintiff alleges that he is entitled to "500 cubic inches of water, miner's measurement, under 6 Inch pressure," his claim Is too indefinite to be considered. We deem this ob jection hypercritical. By rejecting the word "cubic" as surplussage the meaning is plain and as the defen dants do not appear to have been misled, the allegation in that respect will be so considered. It is quite probable that if the waters of the Grand Ronde river were prudently applied under one Intelli gent and Impartial management there would be ample to accomplish most excellent results in that1 wide and fer tile valley. The court, however, is bound by the case as stated in the pleadings. There are no data of either allegation or evidence whereby we can decree alternative use or a chang ing administration of the water to correspond with the change of crops. With the case made as it is, we learn fiom the testimony that of all the set-' tiers originally interested in the lands ana water involved, the plaintiff alone has maintained his holding from the beginning. It is ratrly established, that in June. 1S65. he appropriated at ! least 265 inches of water, miner's' measurement, under a six-Inch pres-j sure, for use upon his lauds. This is the amount allowed him hv the h. I cree of the circuit court, and as he has not questioned it upon appeal, we will not disturb it or consider whether the testimony shows a greater quan tity in his appropriation. Within the meaning of Seaweard v. Pacific Live Stock Co., 49 Or. 157, 88 Pac. 963, he has kept up his appropriation to the present time. He may not have used it every week or month In the same ouantitv nr i the same spot, but he has used gen- eiauy tne whole amount and for the in sealed, air-tight tin pails to insure its cleanliness and freshness. Why take chances with lard and inferior imitations when you can get Cottolene the original cotton oil cooking fat and still the best, most healthful, most economical in the market? Cottolene will aid your cook to make a reputation. FAIRBANK COMPANY NATIOX TO FIGHT RHEUMATISM Crasade Begun Against Alarming la crease of "Weather Plsease." "Educate tie Sufferers" Is tie Slogan. Washington, D. C, Dec. 30. Fol lowing the recent agitation for a na tional fight against consumption, ex tensive tests have recently been made to ascertain what Is the most certain method of curing rheumatism permanently. j The claims of many prominent physicians and manufacturers of r'leumatism treatments, without pre-, judice or favor, were taken into con-' slderation. Evidences of cures were ; carefully scrutinized. T. C. Millard of Flint, Michigan, the discoverer of the Fuss Rheumatism Cure, demon strated so thoroughly the action of his remedy, Its certainty, and the ex ceptional array of proofs, testimonial letters from chronic cases cured by it, that it was decided to sanction the use of this remedy as being the most reliable and the most definite In curative action. It was pronounced by analysis to be absolutely safe in its composition. One ot the most interesting cases noted was that of Mrs. Mary E. Thorn, 605 Pine street, Owosso, Mich. 8years old, who had been a sufferer DR. KINitvs EW DISCOVERY COUGHS AND COLDS WHOOPING COUGH THROAT AND LUNGS dupii "?.P.I.USE W'U. OFTEN PREVENT ceN.?1N4A AND CONSUMPTION SOLD AND GUARANTEED 8 ySS'iiiiftvii-'' ffiVy,-;V , '"aS" and South" for 14 years, during which time no remedy was found availing. Three days after using Fuss, her pains ceased and she is now pronounced cured. For sale by D. F. Fry and all lead ing druggists or sent prepaid on re ceipt of $1.00 or six bottles for J5.00. Fuss Remedy Co., Flint, Mich. o Foley Kidney Fills always give satisfaction because they always do the work. J. T. Shelnut. Bremen, Ga., says: "I have used Foley Kidney Pills with great satisfaction, and found more relief from their use than from any other kidney medicine, and I've tried almost all kinds. I can cheerfully recommend them to all suf ferers for kidney and bladder trou ble." Foley Kidney Pills will cure any case of kidney or bladder trouble not beyond the reach of medicine. No medicine can do more. Red Cross Pharmacy (H. Jerman). Children Cry, FOR FLETCHER'S CASTORI A MOTHER CRAY'S SWEET POWDERS FOR CHILDREN, ?.,.aj-i Tr.We" Vihln, A. S. OLMSTED. L ReyVN-Y. OFTEN MAKES A QUICK NEED for THE CURE TradMsrk. Don't accept nytubstitut. THAT'S SURE (Continued on Page 7.)