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ttttttll
vvnen at Portland
Go to the
BOWERS
Rates $1,00 up. Break
fast and lunch 50c, Din
ner $1,00, Also a la
Carte service in grill, One
block from Oregon Elec
tro on 11th and Wash
ington streets, Salem
people cordially invited to
make our house their
neaaquarters,
DAILY CAPITAL JOrRJfAL,
,ss : I a R
IVIUI
F. P. WILLIAMS, formerly with IMarion
H-4
Best Bottom land
$45 Per Acre
n I I6,0 "H? foot ,cve, bottom soil.
Only 12 miles from Salem and one mile from railroad
and small town.
Good house, barn and other outbuildings. Only 5 acres ::
cultivated Balance in valuable post and tie timber. ::
Other land in same locality selling at $ 1 00 and up.
E. SIOFER & SONSi!
Investments
213 South Commercial Street,
")ttlttt 1 1 1 1 1 t't 1 1 1 t i lit
ORSOOM, WEDXESDAT. DECEMBER
APPROPRIATION OF WATER
IS PLACED Oil JEW OASIS
Supreme Court Announces New Doctrine Which Is Based on
the Amount of Water Necessary for Irrigation and Priority
of Appropriation Can Only Inure to the benefit of the Ap
propnator for the Amount Necessary to Proper Cultiva
tion of His Lands.
riG2 tiikfit
O. A. C. Short Courses
Begins Jan. 3, Continues Four Weks
You
Are
Invited
(2tw till 12-31)
Every citizen of Oregon la cordially invited to
attend the short courses of the Oregon Agricul
tural College, beginning January 3. Eleven dis
tinctive courses will be offered In A-grlculture,
Mecnanic Aris, uomesuc science ana Art, Com
merce. Forestry and Music. Evsrv
designed to HELP the student In his dally work
Make this a pleasant and profitable winter out
ing. No tuition. Reasonable accommodations
. For beautiful Illustrated bulletin, a.ddresa
H. M. TENNANT, Registrar, Corvallis, Oregon,
Farmer's Business Course by Correspondence.
Is
13 Avii
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Ask Your Grocer for it
um3
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E. HOFER & SONS
Investments; Loans, Real Estate
INSURANCE
We write fire. Life, Accident, Liability, Automobile,
Bonds and All Branches of Insurance.
213 S. Commercial St , Phone 82
tDllllllllllllllll MM
Central Oregon
Redmond
and
inc3
was
Benched via the Desclitifrs Branch
OREGON -WASHINGTON RAILROAD & NAY. CO.
Tl.rough far Senlce Between Portland and d
DAILY TKVIX SCHEDULE
Lv. Bend - -nl
Lv. Redmond
Lv Opal City
Lv. Metollus
Lv. Madras
. Lv. Portland .7:50 & 10:00a.m.
Lv. The Dalles lZMup.m
Lv. Deschutes Jet. .. 1:30 p. m
Ar. Madras ..
Ar. Metollus .
Ar. Opal City
Ar. Redmond
Ar. Bend
. 5:45 p. m.
... 6:00p.m.
... 7:06p.m.
... 7:45p.m.
. 8:35 p.m.
a. ro.
. 8:00 a.m.
. 8:30 a.m.
. 8:5 p. ni.
a,' neachutes Jet .. 1:05 p.m.
Ar! The Dalles 1:55 p.m.
Ar. Portland - 5:15 p.m.
AT. -
Lake, PrineTille, flnru,
The Direct, Quick and Natural Koute
...,oov r-.ntralPassCTgcrAst,rllaiHtOrc.
T
ironneur and Daughtrey t. Cnhna,
i matilla County.
Decided, December 12, 1911.
Frank Donnelly and Wm. H.
Daughtrey, appellants, v. Joseph Cuh
na, respondent Appeal from the cir
cuit court for Vmatllla county. Hon.
H. J. Bean judge. Argued and sub
mitted at Pendleton, November S,
1911 R. R. Johnson (Carey & Kerr
Harrison Allen, R. R. Johnson and
Frederick Steiwer on brief) for ap
pellants. J. H. Raley (Raley & Ra
ley on brief) for respondent. Moore.
J. Modified.
This is a suit to enjoin Interfer
ence with the flow of water It Is al
leged In the complaint, In effect, that
the plaintiff's, Frank Donnelly and
Wm. H. Daughtrey, own at Echo, Or
egon, a grist mill which Is operated
by water taken from the Umatilla
river and conducted in a race where
by a prior appropriation of the water
of that stream was made to the ex
tent of 36 second feet which quantity
has been used In propelling the ma
chinery of the mill and in irrigating
about 60 acres of alfalfa land lying
under the race; and that the defen
dant Joseph Cuhna unlawfully di
verted the water from the river
above plaintiffs' dam that deflected
the water Into the race thereby preventing-
the operation of the mill.
The answer denies the material
averments of the complaint and al
leges that defendant's predecessors
In title and Interest made a prior ap
propriation of the water of the river,
at a place above plaintiff's dam,
whereby 400 Inches, miner's measure
ment, was diverted and has been con
stantly used under a elalm of right
for more than 10 years prior to the
commencement of this suit adversely
to all persons. t
The reply puts In Issue the aver
ments of new matter In the answer
and the cause having been tried
findings of fact and of law were made
conformable to the averments of the
answer, except that defendant was
entitled to only 150 Inches of the wa
as a prior right and a decree having
been given in accordance therewith,
the plaintiffs appeal.
Moore, J. The testimony shows
that plaintiffs' predecessor In title, J.
H. Koontz, In 1883 built a dam across
the Umatilla river near the south
east corner of the southwest quarter
of section 22 In township 3 north of
range 29 east In U'uatllla county and
dug a ditch part of the way and con
structed a flume the remainder of
the distance of about two miles
northwesterly, on the east side of the
river to Echo, where. In 1885, he
built a flour mill, the motive power
of which was furnished by water
I flowing in the ditch and flume. The
J mill was destroyed by fire in 1889 but
I was rebuilt the iext year. The
I United States Reclamation , Service
j occupied for a short period the line
'of the mill race but at all other
I rfmPH Rinrp the mill wan nrlerlnnllv
built, it was operated and the land
lying under the ditch has been Irri
gated when there was sufficient wa
ter for that purpose. From October
1st of any year until July or August
of the next year there is an abun
dance of water In the river to supply
all reasonable demands, but between
August and October of each year that
quantity diminishes and contests en
sue fr the use of water.
The title to the land owned by
Cuhna and his alleged right to ap
propriate water for Irrigation from the
river at places above the plaintiffs'
dam were derived as follows: John
Dickey was the owner of 160 acres of
land lying on the west side of 'the
stream and above the line where, the
dam now diverting water into the
mill race was subsequently placed
and In 1879 he commenced near the
southeast corner of his land to dig a
ditch' from a slouph, following the
foot of a rock bluff, 'northwesterly
across his premises In which under
taking he was assisted by James
Taylor who extended the ditch to and
upon his lands, four 40-acre tracts
of which lie west and two 40-acre
pieces are situate north of he line of
the Dickey lands and water was
thereby diverted and used for Irri
gation. Dickey conveyed his prem
ises to Taylor who In 1887 dug a new
ditch, commencing below the old
ditch but above the dam now owned
by plaintiffs and extended the con
duit across his lands, using the wa
ter owing therein for irrigation, and
thereafter abandoned the old ditch.
Taylor died and his widow having
remarried, conveyed the Taylor and
Dickey lands to Cuhna. who con
tinued to use water through the new
ditch for Irrigating such premises.
Koontz secured from persons who
owned lands bordering on or through
which the Umatilla river flows, quit
claim deeds conveying the right tod1-(
vert from the natural channel of that
stream between the: places of Intake
and the termination of the mill race,
sucn quantity of water as might be
necessary , for irrigation along the
line of the ditch and flume and also
to propel any mill that he, his hairs
or assigns might erect at or near
Echo. Taylor being owner of 80
acres of riparian land, situate below
the line of the dam built by Koonti
granted to the latter December 21,
1S83, the right to divert from such
premises and appropriate water bv
the mill race.
At that time It will be remembered
that Taylor and Dickey had an old
that tapped a slough on the west side
of the river some distance above the
dain built by KoonU. Taylor's deed
conveyed only the right to divert wa
ter affecting his lands lying below
the Intake of the mill race and did
not diminish his right to take water
by the old ditch for irriiratlon. nnr
prevent him from moving his place of
diversion to that of the new ditch.
It Is maintained by plaintiff s' coun
sel that the old dlt-n referred to was
dug by Taylor and Dickey to drain
their -lands and that no water flow
ing in that condul had ever ben
used for irrigation. The fact thus as
serted to have been established Is
deduced from testimony whlr.h Rhnw.
that levees were built by Dickey and
Taylor to keep the freiihets caused
by melting snow from overflowing
their lands.
Two sons of John Dickey testified
that in 1871 their father and Taylor
built levees along the slough to pro
tect the lands from overflow but that
In 1879 the old ditch was dug through
such embankment.
We think it satisfactorily appears
that after the sudden floods subsided
and the river reached Its ordinary
stage, water was diverted from the
slough by the old ditch and used for
Irrigation, the quantity being annual
ly increased as the lands were. lev
eled and put In cultivation, the limit
or which area has been reached by
Cuhna. His claim to the use of the
water by the new ditch Is prior to
plaintiffs' appropriation and there
lore superior to thir light and the
only question remaining Is the quan
tity of water to which he Is reason
ably entitled.
The defendant's attorney, Invoking
the rule adopted In Coventon v. Seu
fert, 23 Ore. 548, that the capacity of
the ditch at the smallest place af
fords the measure of the right, Insists
that the quantity of water awarded
by the decree was Just distribution.
The principle announced in the case
referred to Is not now controlling
when more careful methods of lrrlga
tion have been discovered so thatwa
ter is not wasted and a larger area
of land Is adequately moistened,
thereby promoting a greater and bet
ter development of the country. The
adaptability of arid lands to the
arid growth of particular crops by
careful irrigation furnishes the test
of the quantity of water reasonably
necessary for that purpose. The
number of acres of such land that Is
susceptible to cultivation, the degree
of sterility of the premises, the most
profitable crops that can be raised
by artificial application or moisture,
and the quantity of water reasonably
necessary to produce the harvest on
an acre by careful husbandry, are
elements to be considered In deter
mining the measure of an appropria
tion. .
Keeping this rule In view the testi
mony will be examined as to the area
of the defendant's cultivable land
that can be Irrlgattd by his ditch, L.
M. Canfleld, a surveyor, as plaintiffs'
witness stated uprn oath that he ac
curately measured such lands to de
termine the acreage and topography
of the premises, and from the notes
of such survey and a plune table
sheet he made a map which was re
ceived In evidence. He was then di
rected as follows: "You may take up
this Cuhna land section by section In
your own way and tell the court how
much alfalfa lanf, orchard land,
grain land. Irrigated and non-irrigated
land you foiim 'n making your
survey of the same." He replied:
"The southeast quarter of the south
east quarter of section 21, I will say
all of this land of Joseph Cuhna's Is
in township 3 north, range 29 vast of
the Willamette Meridian. In sec
tion 21 there 10.46 icre grain. There
is no alfalfa and no orchards. In
the southwest quarter of the south
west quarter of section 22 there Is .54
acres of alfalfa, no orchard and 55 5
acres of grain. That being all the
land in 22. In th- northeast quarter
of the northeast quarter of section
28, there 2.70 acres of alfalfa, no or
chard and 9.26 acres of grain. This
'WHlt ,
MM
Our Store vill remain Open Evenings Until 9 P. LI. I
RED CROSS STAMPS FOR SALE HERE.
ONLY 3 MORE SHOPPING DAYS UNTIL XMAS.
Scores of Girisioifcs
Bargains Awaii
Your Choosing
Hand Bags, Novelty Jewelry, Ladies Neckwear, Tailored
Linen Waists, 5Ik Petticoats, Silk Hosiery, Children's t
Coats, Sweaters, Purs. Coats, Suits and Dresses. I
)a the many Gift Items
w
Silk Petticoat German Silver Mesh Bags
Frtrf !rt r a . .,, ith ,,onS or shrt chain handles.
Extra quality messalme and taffeta silk Regular price $3.00, Special $2.26
petticoats, all the leading shades $3.75 ea Regular price $3.50,. Special $2.63.
Regular price $4.75. Special $3.57
Hand Bags
Suede, velvet and plain leahters, fit:d djea Tailored Unen Waists
with coin purse and long or short handles, Qot linen. Regular prices $2.25,
Black and leading colors. Regular prices $2,50, $3.00. Special $1.93.
prices $1.25 to $1.50, Special 89c. Women's, Misses and Chil
Vienna Novelty Purses dren's Sweaters
Hand painted on satin, Regular prices KPne uV 'nrw and a 'iH nock
50c, 65c, 75c. Special 39c sPksJ wh.lte- 0M, and cardinal. . Re-
' duced prices on entire line.
Quality
Merchandise
U. G. Shipley Co.
145-147 North Liberty Street .
Between State and Court Streets
Popular
MMMt-U;4
Prices
You will find tnat druggists every
where speak well of Chamberlain's
Cough Remedy. They know from long
experience In the sale of It that In
cases of coughs and colds It can al
ways be depended upon, and that It Is
pleasant and safe to take. For sale
by all dealers.
o
Teachers' Examinations.
Notice Is hereby given that the
county superintendent of Marlon
county will hold the regular examin
ation for applicants for state nnd
county papers at the First M. E.
church, Salem, Oregon, as follows:
For 8tut Papers.
Commencing Wednesday, December
20th, at 9 o'clock a. m., and continu
ing until Saturday, December 23, at
4 p. m.
Wednesday forenoon Writing, U.
8. History, Physiology.
Wednesday . afternoon Physical
Geography, Reading, Composition,
Methods in Reading, Methods In
Arithmetic.
Thursday forenoon Arithmetic,
Civil Government, History of Educa
tion, Psychology, Methods In Geogra
phy. Thursday afternoon Grammar,
Geography, American Literature,
Physics, Methods in Language, Thesis
for primary certldcaos.
Friday forenoon Theory and prac
tice, Orthography, English Literature.
Friday afternoon - - School Law,
Botany, Algebra.
Saturday forenoon Geometry gool
ogy. Saturday afternoon General His
tory, Bookkeeping.
W. M. SMITH,
County School Superintendent.
12-9-10t
12-8-lOt-and-lt-wkly
'O
Children Cry
FOR FLETCHER'S
CASTORI A
xmas 1
CAKES
,',. w.-i'i'Avv A
FANCY CAKE
For Christmas from the Capital bak
ery Is sure to be the center of attrac
tion, not only because It looks good,
but because It will tuste as good
it looks. And so It is with all our
pies, pastry and Christmas goodies
delicious and wholesome. Send In
your Christmas orders early to lrsur
fulfilment,
CAPITAL BAKERY
439 Court Street
Phon 954
SAVE YOUR
MMMMMMMMMMMM t 4-M-M
SELF
There is no reason why you should
always be- a slave.
(Continued oa Page 8.)
Christmas
0
r:i'SIN'i:.S.? concerns
wls'iing ti'. ii ember
employe h, coulrf
no more uuuro-
prlnte nnl Hctvptnble
Rift than a i-iavliiKH
Account In ISunk
Ura!ni intoreril at 4
per cent.
desircl we will
t!,e I'ook in a
siieclal "imCn.t and
mail it K'ltli your
card, ko that it will
be received nit C hrlst
mas iiio'iuiih.
their
find
If
place
United States
National Bank
SAUM
If you are desirous of saving yourself or a friend from a drunk
ard's grave, you cannot afford to overlook the opportunity offered
at the Hot Lake Sanatorium for the cure of the liquor and dru
habit. Hot Lake mineral baths prepare the body for the treatment
and then sooth the nerrei and actually remove the desire for the
liquor or drug. Hundreds of happy homes In Oregon and Washing
ton today bear witness to the efficiency of the Hot Lake treatment
One week will In most cases effect a cure. Sometimes longer la re
quired, but not often. The best of care Is riven the patients. For
full information, address
Hot Lake Sanatorium, n0Xe'
YTALTEE M. PIEBCE
Pres. and Mgr.
D
-M-M-fM"M-M
WO o
BIG REDUCTION
until Xmas. We will sell
Mill Wood $1.75 per Load
in 5 Load Orders, and $2.00 per Load for single loads
The Chas. K. Spaulding Logging Co.
Office Front and Ferry. Phone Main 1830
Read The Journal For News
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vaco jut world oven to cvm a cqlo m out bat.
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