# In Re Rights to Use of Waters of Silvies River

> Oregon Supreme Court · November 6, 1924 · 115 Or. 27

URL: https://www.frixlaw.com/law-library/cases/3838866

## Case

- **Full name:** In Re Rights to Use of Waters of Silvies River.
- **Court:** Oregon Supreme Court
- **Decided:** November 6, 1924
- **Citations:** 115 Or. 27; 237 P. 322; 1925 Ore. LEXIS 53
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bean
- **Judges:** Bean, Rand, Brown, Belt, Burnett
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3838866

## How later opinions describe it (automated extraction)

- describing pre-1909-code methods of providing notice

## Opinion text

BEAN, J.
The Pacific Livestock Company, a claimant to water rights for a large area of land in Harney Valley and Silvies Valley, filed in the Circuit Court several exceptions to the findings by the water board, and now appeals from the decree of the Circuit Court assigning errors therein. Taking these matters somewhat in the order they are presented, and following as near as we can the form of tabulation of rights adopted by the water board, we make the following findings; that this company filed thirteen claims for various properties in Silvies Valley, and that the company assigns error in regard to nine of the claims.
Silvies Valley Land.
Silvies Valley is narrow, averaging about one mile in width. A large part of the water used for its irrigation immediately drains back into the river. The irrigation in this valley, during the early part of the season, to a certain extent, acts as a reservoir for the waters of the river, making them valuable below later in the season. Such irrigation cannot injuriously affect anyone in Harney Valley. There
*39
is no contest between any Harney Valley water users and the irrigators in Bear Valley, or Silvies Valley.
Beyers’ East Side and West Side Ditches.
•In regard to the land of the Pacific Livestock Company, under the Beyers’ East Side and West Side ditches, the testimony of those who settled in the Silvies Valley during the eighties, among others, that of John Craddock, who came to the valley in 1885, is to the effect that Beyers constructed a dam in the river in 1887 and ditches were started the same year.
We think the testimony shows that the ditches were practically completed in 1888 and the water first applied to a beneficial use during that year. There is in evidence a recorded water location or notice by Charles Beyers, recorded October 14, 1887, in the water records of Grant County, Oregon, but we find no evidence of a notice of appropriation having been posted on the bank of the river at the place of the intake of the proposed ditch, or elsewhere.
Before the legislative enactment of 1891 providing for posting of notices in the matter of appropriating water, and the regulations in regard thereto, it was a recognized rule that the appropriation of water of a stream, initiated by the posting and recording of a notice of appropriation, in accordance with a custom, and perfected by diversion and application of the water to a beneficial use within a reasonable time, dates back under the doctrine of relation to the first step taken:
Nevada Ditch Co.
v.
Bennett,
30 Or. 59 ( 45 Pac. 472 , 60 Am. St. Rep. 777 , note). Such a rule may be said to have become established, under varying circumstances and conditions, in this state.
The claimant, Pacific Livestock Company, does not show that the several notices of water location
*40
relied upon by it were posted in conformity to the custom prevailing during the eighties, and we find no testimony that the notices were posted in any manner: 1 Wiel on Water Eights (3 ed.), 405, § 375. Therefore, the Pacific Livestock Company is not in a position to invoke the rule suggested by'it, and we think that the date of relative priority should be fixed at the time the appropriation was actually made without regard to the doctrine of relation.
After the ditches were constructed in 1888, the water was applied to a beneficial use by irrigating the land of the settlers who owned it at that time and who constructed the ditches. Mr. Dan Camblin testified that the Beyers dam was put in the river at the head of these ditches in 1888 and that the ditch was constructed as far as the Tracy place, and afterward extended south to Section 36, Tp. 18 S., E. 31 E., W. M., where the water was turned into a slough, and then dams placed in the ' slough to throw the water out to irrigate the land. On the east side of the river the construction of the Beyers ditch was commenced about the same time and the ditch was built down on the east side of the river nearly through the holdings of the Pacific Livestock Company at the present time along the river in the valley. For several years these ditches were used by the settlers who then owned the land in the irrigation of the same. Afterward the land passed to the ownership of the Pacific Livestock Company and for some time was principally devoted to the pasturing of livestock.
It is in evidence by the early settlers that the Silvies Eiver and its branches and various sloughs overflow and spread the water over large areas of adjacent land. This occurs every year when there
*41
is a fair quantity of water and at intervals of four or five years the' river has overflown to a width of a mile; so that a considerable portion of the land is really irrigated without the use of ditches. The amount flooded is increased by the construction of dams in the river and its branches and connecting sloughs.
About 1912 the company inaugurated a change in its use of the land in the Silvies Valley from pasturing to raising hay, and commenced the reconstruction of the Beyers ditches on both sides of the river in practically the same location and within a year or two completed the ditches, extending them south, practically through the land of the company. “While there was a change in the use of much of the land after it came into the ownership of the company, and the use of the water from these streams was perhaps lessened to a certain extent, we do not think that the testimony indicates an abandonment of the water right. It does not appear to have been the intention of the company to relinquish its rights to the use of these waters but rather to delay or partly suspend the application of the waters to a beneficial use.
Another question is raised in regard to a considerable portion of this land. About the time of the reconstruction of the Beyers ditches, applications were made to the State Engineer by the company for permits to • appropriate water through these ditches. The record indicates that this was done to protect the water rights of the claimant Pacific Livestock Company and not with the intent of waiving any right which the company formerly had. The act of applying for permits from the State Engineer was analogous to the posting of notices of appropria
*42
tion under the statute prior to the enactment of the Water Code. A party having a right to the use of the water of a stream for the purpose of' irrigating land by virtue of a prior appropriation, by organizing a corporation and participating in the posting and recording of a notice of appropriation in the name of such corporation, or posting notices of appropriation and recording the same in order to strengthen his rights in his own name, does not necessarily waive or relinquish his right to the water which he had prior to such posting of a notice:
In re Grande Ronde River,
113 Or. 211 ( 232 Pac. 626 );
In re Hood River,
114 Or. 112 ( 227 Pac. 1065 );
Eldredge
v.
Mill Ditch Co.,
90 Or. 590 ( 177 Pac. 939 );
Oregon Const. Co.
v.
Allen Ditch Co.,
41 Or. 209 ( 69 Pac. 455 , 93 Am. St. Rep. 701 , note). The claimant Pacific Livestock Co. also cites upon this point
Newport Water Co.
v.
Kellogg,
31 Idaho, 574 ( 174 Pac. 602 );
Osgood
v.
El Dorado etc. Water Co.,
56 Cal. 571 .
The following award will be made:
Name & E. O. Date of Eel. Priority Amt. Cub. Pt. per Sec. No. of Acres. Name of Ditcb or Stream. Desc. of Land or Place of Use.
Pac. Livestock Company 1888 28 Beyers East side & West side Ditch Silvies River 10 ac. NE.¼ SE.¼ 18 ac. SE.¼ SB.¼ Sec. 24, T*p. 18 S., R. 31 E„ W. M.
Pac. Livestock Company 1888 846 ac. Beyers E. & W. Ditches 36 ac. NE.¼ NE.¼ 39 ac. SW.¼ NE.¼ 38 ac. SE.¼ NE.¼ 85 ac. NE.¼ SW.¼ 20 ac. SW.¼ SW.¼ 40 ac. SE.¼ SW.¼ 40 ac. NE.¼ SE.¼ 89 ac. NW.¼ SE.¼ 29 ac. SW.¼ SE.¼ 30 ac. SE.¼ SE.¼ Sec. 25, Tp. IS S„ R. 31 E., W. M.
*43
Name
&
P. O. Date of Rel. Priority Amt. Cub. Ft. per Sec. No. of Acres. Name of Ditch or Stream. Desc. of Land or Place of Use.
Pac. Livestock. 1888 Company 344 ac. Beyers E. & W. Ditches 40 ac. NE.¼ NE.¼ 10 ac. NW.¼ NE.¼ 40 ac. SW.¼ NE.¼ 30 ac. SE.¼ NE.¼ 40 ac. NE¼ NW¼ 32 ac. NW.¼ NW.¼ 32 ac. SW.¼ NW.¼ 40 ac. SE.¼ NW.¼ 40 ac. NE.¼ SW.¼ 40 ac. NW.¼ SW.¼ Sec. 36, Tp. 18 S., R. 31 E„ W. M.
Pac. Livestock 1888 Company 228 ac. Beyers E. & W. Ditches 38 ac. SW.¼ SW.¼ 40 ac. SE.¼ SW.¼ 30 ac. NE.¼ SE.¼ 40 ac. NW.¼ SE.¼ 40 ac. SW.¼ SE.¼ 40 ac. SE.¼ SE.¼ Sec. 36, Tp. 18 S., R. 31 E., W. M.
Pac. Livestock 1888 Company 87 ac. Beyers E.
&
W. Ditches 8 ac. NE.¼ SW.¼ 14 ac. NW.¼ SW.¼ 15 ac. SW.¼ SW.¼ Sec. 18, Tp. 18 S„ R. 32 E., W. M.
Pac. Livestock 1888 Company 287 ac. Beyers ¡E.
& W.
Ditches 24 ac. NW.¼ NE.¼ 25 ac. SW.¼ NE.¼ 29 ac. NE.¼ NW.¼ 10 ac. NW.¼ NW.¼ 24 ac. SW.¼ NW.¼ 39 ac. SE.¼ NW.¼ 38 ac. NE.¼ SW.¼ 25 ac. NW.¼ SW.¼ 23 ac. SW.¼ SW.¼ 40 ac. SE.¼ SW.¼ 10 ac. NW.¼ SE.¼ Sec. 19, Tp. 18 S., R. 32 E., W. M.
Pac. Livestock 1888 Company 494 ac. Beyers E.
& W.
Ditches 80 ac. NE.¼ NE.¼ 40 ac. NW.¼ NE.¼ 5 ac. SW.¼ NE.¼ 10 ac. SE.¼ NE.¼ 40 ac. NE.¼ NW.¼ 26 ac. NW.¼ NW.¼ 28 ac. SW.¼ NW.¼ 40 ac. SE.¼ NW.¼ 34 ac. NE.¼ SW.¼ 88 ac. NW.¼ SW.¼ 35 ac. SW.¼ SW.¼ 40 ac. SE.¼ SW.¼ 15 ac. NE.¼ SE.¼ 38 ac. NW.¼ SE.¼
*44
Name & P. 0. Date of Bel. Priority Amt. Cub. Et. per Sec. No. of Acres. Name of Ditch or Stream. Desc. of Land or Place of Use.
Pac. Livestock 1888 Company 494 ac. Beyers E.
& W.
Ditches 40 ac. S"W.¼ SE
.¼
25 ac. SE.¼ SE.¼ Sec. 1, Tp. 19 S., R. 31 E., W. M.'
Pac. Livestock Company 1888 8 ac. Beyers E.
& ~W.
Ditches 8 ac. SE.¼ SE
.¼
Sec. 11, Tp. 19 S., B. 31 E., W. M.
Pac. Livestock Company 1888 136 ac. Beyers E. & W. Ditches 38 ac. NE.¼
WW.¼
38 ac. SE.¼ NW.¼ 25 ac.
NW.¼
SW.¼ 35 ac. SW.¼ SW.¼ Sec. 12, Tp. 19 S„ E. 31 E., W. M.'
Pac. Livestock Company 1888 22 E. ac. Beyers
W.
Ditches 22 ac. NW.¼ NW.¼ Sec. 13, Tp. 19 S., B. 31 E., W. M.
Pac. Livestock Company 1888 21 E. ac. Beyers & W. Ditches 12 ac. NE.¼ NE.¼ 9 ac. SE.¼ NE.¼ Sec. 14, Tp. 19 S., B. 31 E., W. M.
It has long been the cnstom in Oregon to utilize slonghs and depressions in the ground in the construction and extension of ditches and canals as a means of conveying water to lands for the purposes of irrigation. Such means, however, are obviously wasteful and do not serve the purpose of utilizing the waters of a stream to their full extent in the application of water to a beneficial use, and should be sanctioned only until a fair opportunity is had to construct ditches or canals and pipe-lines, or other artificial works, where necessary, to conserve the water and minimize the waste thereof so as to irrigate as large an area as possible, consistent with practical irrigation and good husbandry.
Natural irrigation, in the crude manner indicated, apparently applies only a portion of the water to a real beneficial use.
Tbe Pacific Livestock Company assigns error in the adjudication of 345.5 acres of its Trout Creek lands, which were awarded a date of priority of
*45
1883. The company also claims that this date should be April 9, 1883, the date of the recording of notices of appropriation by F. Gr. Blume and R. J. Zilkey, the former owner of the lands. These notices are in the same category as other notices mentioned above, in that the record does not show that the notices were posted at any time, consequently the doctrine of relation would not apply. The date of relative priority would be the time of actual construction of the ditches and appropriation of the water. The claimant, the Pacific Livestock Company, has no cause of complaint in this respect.
Fred Otley and other claimants assign error in the award by the court to this company as to its Trout Creek lands. This award will be modified so as to be as follows:
Name
&
P. 0. Bate of Rel. Priority. No. of Acres. Name of Bitch or Stream Beso, of Land or Place of Use.
P. L. S. Co. 1883 236.5 Trout Creek 40 ac. NW.¼ NE.¼
P.
L.
S.
Co.
1883 Trout Creek 27.5 ac. SW.¼ NE.¼ 40 ac. SE.¼ NE.¼ 40 ac. NE.¼ NW.¼ 12 ac. SE.¼ NW.¼ 17 ac. NE.¼ SE.¼ Sec. 13, Tp. 19 S., R. 31 E„ W. M. 20 ac. SW.¼ NW.¼ 40 ac. NW.¼ SW.¼ Sec. 18, T. 19 S„ R. 32 E, w. M.
P. L. S. Co. 1891 Jan. 19 91 Trout Creek 24 ac. NE.¼ NE.¼ Sec. 18, T. 19 S., R. 31 E„ W. M. 28 ac. SW.¼ SW.¼ 39 ac. SE.¼ SW.¼ Sec. 18, T. 19 S., R. 32 E. W. M.
P. L. S. Co. 1892 Oct 1 18 Trout Creek 18 ac. NE.¼ SW.¼ Sec. 18, T. 19 S„ R. 32 E„ W.
M.
The company’s Payne Creek property, known as the Payne homestead, was settled on in 1888, and thereafter a ditch was built to take water on to the
*46
land. The prevailing conditions are shown by John L. Hopper, who owns adjoining land and who has been acquainted wdth the place since 1899. There are fully fifty-five acres of good meadow-land on the place. The application of water in the irrigation of the land is evidenced by the record. The fifty-five acres of the Payne place should be added to the amount awarded by the water board and the Circuit Court with a date of priority of 1899, making the award as follows:
Name Date of Rel. Priority No. of Acres Name of Ditch or Stream Desc. of Land or Place of Use.
P. L. S. Co. 1899 65 Payne Creek 30 ac. SW.¼ SW.¼ 5 ac. SE.¼ SW.¼ Sec. 17, Tp. 18 S„ R. 31 E„ W. M.
P. L. S. Co. 1899 Payne Creek IS ac. SE.¼ SB.¼ Sec. 18, Tp. 18 S., R. 31 E„ W. M. 5 ac. NW.¼ NW.¼ Sec. 20, Tp. 18 S., R. 31 E., W. M.
P. L. S. Co. 1888 70 Camp Creek Owens Ditch Camp Creek 40 ac. SW.¼ SW.¼ Sec. 25, T. 17 S„ R. 31 E., W. M.
P. L. S. Co. 1888 Owens Ditch Camp Creek 30 ac. SE.¼ SE.¼ Sec. 26, T. 17 S., R. 31 E., W. M.
P. L. S. Co. 1906 95 Owens Ditch 35 ac. SE¼ SE.¼ 30 ac. SW.¼ SE.¼ 20 ac. SE.¼ SW.¼ 10 ac. SW.¼ SW.¼ Sec. 84, T. 17 S., R. 31 E., W.. M.
Camp Creek Schroeder Appropriation.
The claimant, Pacific Livestock Company, asserts the right for 355 acres with a priority of 1888. The water board and court awarded no right to this land. The testimony of the engineer of the company, W. A. Griffin, shows that he went to Silvies Valley in the spring of 1914 and afterward became
*47
familiar with the company land. He testifies as to the number of acres susceptible of irrigation and embraced in this claim, which he ascertained from a survey. W. H. Schroeder, a brother of John Schroeder, testified that he settled in Silvies Valley on Camp Creek in the fall of 1888; that his brother John had located there about two years before. W. H. Schroeder left the valley in December, 1889. He stated that his brother John located a claim on Camp Creek before the witness went there. Afterward, that he also located a claim; that when he came to the valley his brother had a dam near the upper end of his place, and a little ditch on the, south side of Camp Creek; that he and his brother built a ditch on the north side of the creek in the fall of 1888 and spring of 1889 and repaired the dam; that the ditch went through his brother’s land and on to his; that he used the ditch one season for a short time in 1889. The ditch was perhaps one-half mile long and about twenty inches or two feet wide on the bottom. Since he left there he has been over the land once, three or four years ago. Most of the places are sagebrush land. That he cleared up and fenced some of the land; that his brother fenced forty or fifty acres and cleared some; that the land was not fenced when he passed through there three or four years before, he testified; that when he passed through at that time he noticed a ditch on the south side of Camp Creek that had been built after he was there. That he sold his land to the company and that his brother also sold. “I don’t recall whether he sold first, or whether I sold first.” Mr. Griffin states that the land was scattered sage-brush land, no meadow-land. The awards for this and other lands will be as follows:
*48
Name DateofRel.' Priority No. of Acres Name of Ditch or Stream. Descr. of Land or Place of Use.
P. L. S. Oo. 1889 150 Camp Creek Schroeder Approp. 30 ac. NE.¼ NE.¼ 40 ac. SE.¼ NE.¼ 30 ac. SW.¼ NE.¼ 10 ac. NE.¼ SW.¼ 40 ac. NW.¼ SW.¼ Sec. 35, T. 17 S., R. 31 E„ W. M.
P. L. S. Co. 1889 888 Camp Creek Miller Approp. 35 ac. NW.¼ NE.¼ 40 ac. SW.¼ NE.¼ 40 ac. NE.¼ NW.¼ 40 ac. SE.¼ NW.¼ 38 ac. NW.¼ SE.¼ 35 ac. SE.¼ SE.¼ 40 ac. NW.¼ SE.¼ 40 ac. SE.¼ SE.¼ 40 ac. NE.¼ SW.¼ 40 ac. SE.¼ SW.¼ Sec. 36, T. 17 S., R. 31 E„ W. M.
P. L. S. Co. 1888 140 Cottonwood Creek 30 ac. NW.¼ NE.¼ 30 ac. SE.¼ NE.¼ 25 ac. NE.¼ SE.¼ 15 ac. SE.¼ SE.¼ 40 ac. NW.¼ SE.¼ Sec. 1, T. 18 S., R. 31 E., W. M.
The following awards will he modified so as to read as follows:
P. L. S. Co. 1887 144 Bridge
&
Poison Creek 40 ae. NE.¼ NW.¼ 25 ac. NW.¼ NW.¼ 40 ac. SE.¼ NW.¼ 39 ac. NE.¼ SW.¼ Sec. 18, T. 18 S., R. 32 E, W. M.
P. L. S. Oo. 1888 78 Jump Creek 40 ac. NE.¼ NW.¼ 38 ac. SE.¼ NW.¼ Sec. 12, T. 18 S, R. 31 E., W. M.
D. L. Cambian.
Sections 12 and 13, Tp. 18 S., R. 31 E., W. M.
It appears from the record that the claimant D. L. Camblin made a homestead entry for the land in 1885 and has resided thereon since 1886; that he commenced to raise crops and irrigated the land for that purpose in 1886, taking the water from Jump Creek; that he increased the area which he irrigated and raised crops on the west side of the river every year until it was all in meadow and irrigated. This
*49
land of Camblin’s on the west side of the river in Sections 12 and 13, Tp. 18 S., R. 31 E., W. M., should be awarded a date of relative priority of 1886. It appears that the claimant has ten acres on the east side of the river in Section 12, which was omitted from the survey and which has been irrigated from Bridge Creek since 1888, and should be awarded a water right with a date of 1888.
6. The change made in the ditch, taken from the river in 1913, was a mere relocation in the place of taking out the water and not a new appropriation. The water was diverted from the same stream system. Tlie extension of Camblin’s ditch on the west side of the river, which was constructed in 1886, to his other land, does not appear to have been an enlargement or a new appropriation, but rather the completion of the application of the water to a beneficial use. This was done with due diligence and within a reasonable time. Bee
In re Hood River,
114 Or. 112 ( 227 Pac. 1065 ). The right should not be subordinated to those claimed by virtue of natural irrigation, or a partial natural use of the water, without any artificial works or actual irrigation. The award of B. L. Camblin will be made as follows:
Name & P. O. Date of Priority. No. of Acres. Name of Stream or Ditch. Description of Land or Place of Use.
Camhlin, D. L. 1886 50.1 Flat Creek Seneca, Ore. 20.6 ac. NW.¼ NE.¼ 29.5 ac. NE.¼ Sec. 13, T. 18 S., R. 81 E., W. M. .
Note: The land in NW.¼ NE.¼ also has a water right from Jump Creek under date of 1913.
Seneca, Ore. 1886 65.7 Silvies R. 11.1 ac. SW. SE.¼ 17.63 ac. SE.¼ SE.¼
Seneca, Ore. 1886 Jump Creek 18.47 ac. NW.¼ SE¼ 18.50 ac.
SW.¼ SE.¼
Seneca, Ore. 1888 10 10 ac. E. of river Sec. 12,, T. 18 S., R. 31 E., W. M.
Note: The land in the NW.¼ SE.¼ also has a water right from Silvies River under date of 1913. All of Camhlin’s land on east side of river has a water right date of 1888.
*50
Claims op Walter Cross, Nellie Hardesty, Corra M. Shephard and Jessie J. Shephard.
Walter Cross was awarded a right for 287 acres of land from East Tront Creek and Tront Creek, with a date of priority of 1883. The land is situate in Sections 5 and 6, T. 20 S., E. 32 E., W. M., and Section 31, T. 19 S., E. 32 E., W. M.
Nellie Hardesty was awarded a right for fifty-four acres from Trout Creek and small streams, with a date of priority of 1883, lands in Section 7, T. 20 S., E. 32 E., W. M.
Cora M. Shephard and Jessie J. Shephard, co-owners as heirs, were awarded a right for fifty-five acres from Trout Creek with a date of priority of 1883. The land is situate in Section 7, T. 20 S., E. 32 E., W. M.
It appears from the record that Walter Cross settled upon a pre-emption claim in 1883, being a portion of the land involved, put in a dam in east Trout Creek, constructed a small ditch and plowed a tract of ground that year. The ditch was so dug that it turned the water into a low depression which caused it to flow over the land. He irrigated a small amount of the land the first year and has used the system of irrigation ever since that date. In about fifteen years he put in another dam. That he has raised hay for twenty-five years; that he had irrigated all of his land for twenty years, and some of it for a longer time.
It appears that one Stephen Woods was interested with Walter Cross in the dam put in East Trout Creek in 1883. Woods irrigated his place from the same source. Cross and Woods posted a notice of appropriation, claiming 500 inches of the waters of Little Creek, or East Trout Creek, to be taken out
*51
at the place of posting the notice and conveyed in ditches and flumes to their land claims, and used for stock and irrigating purposes, and recorded the notice on August 21, 1883. Woods irrigated some of his land in 1884. Since then both places have been irrigated and 250 to 275 tons of hay have been cut annually thereon. The Woods place is known as the Jewett place. It was purchased by Walter Cross in 1911 and is now owned by him.
It appears that on October 13, 1884, J. L. Cross made a homestead entry for the SE.¼ of the NW.¼ and the SW.¼ of NE
.¼,
the NE.¼ of the SW.¼ the NW.¼ of the SE.¼ of Section 7, T. 20 S. R., 32 E., W. M.; that he settled upon the land in 1883. J. L. Cross died in 1900, leaving a will devising the N. % of this tract of land to Nellie L. Cross, now Nellie L. Hardesty, and the S. % of the tract to Jane Cross, later Jane Shephard. This portion is now owned by the children of Jane Shephard, Cora M. Shephard and Jessie J. Shephard.
It appears that the elder J. L. Cross, now deceased, irrigated the land from the time he settled there. He built a dam in the channel of Trout Creek and constructed a small ditch and also irrigated from two small creeks on the east side of Trout Creek. Within a reasonable time after the first irrigation, all of the land for which a water right is claimed was prepared and irrigated. Due diligence appears to have been observed in the construction of ditches and dams and in the application of the water to the beneficial use of irrigation.
From a careful reading of the testimony of these claimants and also of the contestant we are led to believe that the rights of Walter Cross, Nellie L. Hardesty, Cora M. Shephard and Jessie J. Shephard
*52
are prior in. time and superior to those of the contestant, Pacific Livestock Company.
In the contest of the
Pacific Livestock Company
v.
H. A. Dillard,
it appears that the SW.¼ of the SE.¼ of Section 18, the W.¼ of the NE.¼ and the SE.¼ of the NE.¼ of Section 19, T. 20 S., R. 32 E., W. M., was settled upon in 1885 and patent issued August 16, 1891. The tract is now owned by H. A. Dillard. It is shown that there was a ditch on the place in 1885 and that Smith irrigated about 70 acres therefrom. The land has since been cultivated and irrigated, the area of the land being gradually increased by a small amount. H. A. Dillard is entitled to a date of priority of 1885.
Claims op Peter Clemens, Prank J. Whiting and J. C. Clemens, His Successors, and William Stewart and T. J. Baker.
Each party appealed from the award of P. J. Whiting and J. C. Clemens, successors in interest of Peter Clemens, deceased, and the awards to T. J. Baker and William Stewart. Baker and Stewart were awarded by the court a date of priority of 1881. The rights of these parties in the water from Poison Creek, which is treated as a tributary of Silvies River, conflict.
We will first consider the claims of P. J. Whiting and J. C. Clemens: Peter Clemens, now deceased, the predecessor in interest of P. J. Whiting and J. C. Clemens, who was alive at the time of the original hearing and testified as a witness in support of his claim to water from Poison Creek for 555 acres in Sections 22 and 27, Tp. 22 S., R. 31 E., W. M., stated in substance, that he came to that country in the fall of 1882; that he commenced to irrigate his land in 1883 by means of overflow and that he put in a ditch
*53
in 1884 and at that timé posted a notice of appropriation of 1,000 inches of water from Poison Creek, which was recorded in Grant County, April 21, 1884; that he raised wild hay on the meadows and grain and some alfalfa on the land. He stated that he had cultivated the high land for twenty years; that it was broken during the eighties; that there is a slough from Poison Creek which connects with the east branch of Foley’s slough. He also put in a few dams in the slough; that he irrigated the land continuous after he got it prepared. We find no contradiction of this testimony.
It appears that Peter Clemens made use of the water from Poison Creek for the irrigation of his land in 1883. In the spring of 1884 he posted and recorded a notice of appropriation and proceeded with due diligence to construct a ditch and dams, and also diligently cultivated a portion of the land and applied water to the irrigation of the same, and also to his meadow-land, continuously thereafter. According to the doctrine of relation, and taking all the facts and circumstances into consideration, Frank Whiting and J. C. Clemens, the successors in interest of Peter Clemens, or the Peter Clemens’ land of 555 acres, is entitled to a date of priority of April 21, 1884.
Considering now the claims of William Stewart for the NE. 14 and the N. 14 of the SE. 14, Section 33, and the SE. 14 of the SE. 14, Section 28, Tp. 22 S., E. 31 E., W. M., and J. T. Baker for the W. % of the NW. 14 and the NE. 14 of the NW. 14 and the NW-14 of the NE. 14, and the SE. 14 of the NW. 14 and the NE. 14 of the SW. 14 and the NW. 14 of the NE. 14, the NW. 14 of the SE. 14 of Section 34, Tp. 22 S., E. 31 E., W. M., J. H. Culp, witness for these two claimants, testified to the effect that he had known the Baker and Stewart lands since 1886; that
*54
the Baker land was irrigated from Poison Creek and two springs; that it has been irrigated every year since that time and hay and grain raised thereon; that from the appearance of the meadow hay had been cnt thereon before 1886; that there were improvements and buildings on,the land when he first knew it; that it was natural hay land; that the Stewart land was settled upon at the time he first knew it; that part of it was natural wild meadowland; that forty acres of the SE. % of' Section 28 was practically all irrigated and also the NE. 14 of Section 33; that there were natural ditches and sloughs that spread out over the land, and a spring or two that the land received water from.
J. T. Vickers stated as a' witness, in substance, that he had known the Baker and Stewart places since 1879. As to the character of those lands, that “it was kind of overflow and marshy and water standing around in sinks.” He called it the sink of. Poison Creek. That the biggest portion, of it produced a good crop of wild grass; that since that time he had not been on the place “only just passing by since.” That about 1882 or 1883 “they started in on haying and fencing them”; that he had seen hay cut on the land most every year since 1883.
Mr. J. L. Poujade testified that he came to that country in July, 1880. He had lived in the neighborhood since that time. He was acquainted with the Stewart and the Baker places; that he helped cut hay in 1883; that there was hay cut on the land before that; that they have cut hay on the land practically every year since that time.
J. T. Baker, claimant, testified to the effect that he had lived on the place since 1890. It was all fenced then and had buildings several years old. It was irrigated from Poison Creek and springs. They
*55
used water from Poison Creek from about tbe 25th of May to the 1st of June; and after that from the springs; that when Poison Creek is high the water naturally spreads out over a good deal of his land; that he constructed ditches and dams below the springs in Section 34, and that he used the water continuously since he went upon the place, without any claim being made thereto by anyone else until the last year (1920); that one of the springs rises on his own land.
Mr. ‘William M. Stewart testified that he had lived on his land since May 4, 1896; that the SE. % of the SE.
y±
of Section 28 was practically all irrigated when he purchased it also, the NE. % of Section 33 was irrigated at that time. The land was irrigated from Poison Creek the early part of the season and the latter part, from the 1st of June on, from two springs, one of which was on his land in Section 28; that the water from Poison Creek spreads out over all of the SE. % of Section 28 and the NE. % of Section 33, and the N. % of the S.
y2
of this section; that he has used the water from these sources since he has been there without any interference from anyone until last year. The first ditch upon the land was built in 1900.
Mr. George D. Hagey, witness for claimants, stated that he first knew the Stewart and Baker places in 1887; that he put up hay on the Stewart land four years. That he had not been on the place for twenty years, until three months before he testified; that they were in the same condition now as they were when he knew them, except as to dams and ditches; that when he was working on the Stewart land he could see over the other place practically as well as the one on which he worked; that he drove right
*56
along beside it; that “there is no ditches there to bother the mower. Nothing at all. Just cut right over everything.”
Considering all the testimony, we think that the claim of Peter Clemens was prior in time and superior in right to the claims of William M. Stewart and J. T. Baker for water from Poison Creek; that William M. Stewart should be awarded a date of 1884 later than April 21st for 260 acres, partially irrigated from Poison Creek and partly from a branch of Foley’s slough. His other date of priority awarded by the court of 1900 for 165 acres is affirmed.
The award to J. T. Baker for 320 acres of land in Section 34, Tp. 22 S., R. 31 E., W. M., to be irrigated from Poison Creek with a date of 1884, should be deemed later than April 21, 1884, and subsequent to the claim of Peter Clemens, now made by Frank J. Whiting' and J. C. Clemens, his successors in interest. In regal'd to the water from the springs arising on the land of these claimants, that matter is regulated by Section 5797, Or. L., which provides as follows:
“Ditches for Waste, Spring, or Seepage Water. All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, or seepage waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the right to the use .of such waters.”
James H. Btinyard Lands.
This claimant claimed a right for 484.65 acres. The right was initiated November, 1893, by the construction of a ditch for the irrigation of 165.95 acres. The claimant was awarded a right by the water board
*57
for 165.95 acres with a date of priority of 1889; 160 acres with a date of priority of 1898; 158.70 acres with a date of priority of 1894.
The court awarded Bunyard a water right for 124.82 acres with a date of priority of 1889; 100 acres with a date of priority of 1898; 158.70 acres with a date of priority of 1898.
Mary Bunyard, administratrix of the estate of James H. Bunyard, deceased, complains upon this appeal of the reduction of the acreage made by the court and also of the change of the date of priority of the right for lands in Section 7, Tp. 24 S., R. 32 E., W. M., from 1894 to 1898.
The map of the State Engineer shows that all of the land in Section 1 claimed by Bunyard is irrigated and should be allowed a water right. James H. Bun-yard testified that he settled on his pre-emption claim in Lots 6 and 7 and SW. NW. % of lot 2 of Section 1, Tp. 24 S., R. 31 E., W. M., in 1886 or 1887, and filed upon the land as soon as it was surveyed and subject to entry; that it was natural meadowland and about all irrigated. He constructed a ditch in the fall of 1889. He used the land purely for raising hay and cut from 160 to 180 tons of hay each season. He purchased the SE. 14 of Section 1 (same Tp. and range), known as the Willett’s tract, which was settled upon about three years after Bunyard made settlement. The land is naturally overflowed. About 100 tons of hay are usually cut on the Willett tract. It is irrigated by means of a dam or levee in the slough, and some water from a ditch. The Willett’s tract was irrigated when they had possession of it.
The testimony of M. V. Bodge, an opposing witness, shows there is but little difference in the elevation of the Bunyard land in Section 21. The opposing testimony does not show that this land is not all
*58
susceptible of irrigation. The other tract claimed by the Bunyard estate is known as the Lewis tract which Mr. Bunyard bought in 1893. He stated that a very little of this land was surface irrigated; that about 30 acres was overflowed and some subirrigated. The land is principally what is called sage-brush land. The testimony is meager and vague as to what has been done in the way of irrigation, and we find no testimony to authorize a change in the date of priority from that made by the Circuit Court. The James H. Bunyard land, now claimed by Mary Bunyard, administratrix of the estate of J. H. Bunyard deceased, is awarded a right, and the decree of the Circuit Court will be modified as follows:
Date. No. of Acres. Ditch. Stream. Description.
1889 165.95 Marrs Oo. Main 41.13 ac. Lot 6 (NE.¼ NW.¼) 41.52 ac. Lot 7 (NW.¼ NW.¼) 40 ac. SW.¼ NW.¼ 43.30 ac. Lot 2 (NW.¼ SW.¼)
1898 160 40 ac. in NE.¼ SB.¼ 40 ac. in SE.¼ SE.v 40 ac. in SW.¼ SE.¼ 40 ac. in NW.¼ SE.¼ Sec. 1, Tp. 24 S„ R. 31 E„ W. M.
1898 158.70 39.84 ac. Lot 1 (NE.¼ NE.¼) 39.84 ac. Lot 8 (NW.¼ NE.¼) 39.51 ac. Lot 7 (SW.¼ NE.¼) 39.51 ac. Lot 2 (SB.¼ NE.¼) Sec. 7, Tp. 24 S„ R. 32 E„ W. M.
Pacific Livestock Company vs. Burns Flour Milling Company.
The Burns Flour Milling Company was awarded a priority of 1884 for the irrigation of 83.9 acres in Sections 36 and 1, Tp. 22 S., R. 30 E., W. M. The mill company was also awarded a date of priority of 1884 for power purposes. The mill ditch or race is 16 feet wide at the top and 8% feet wide at the bottom and 4.3 feet deep. The water has been utilized for making flour and also for electric light purposes,
*59
and in the irrigation of the lands for the raising of fruits, vegetables and other products.
The Pacific Livestock Company alleges error in the award of the priority of 1884 for 26.7 acres in said Section 1, and also error in the priority for power purposes and contends that the date of priority for the mill should be 1900. On November 3, 1884, N. Brown, the predecessor in interest of the Burns Flour Milling Company, claimant, posted on Silvies River at the point of the proposed diversion near Burns, describing the point, a notice of appropriation of water to the amount of 5,160 cubic feet (Left el’s double turbine water-wheel measurement) to be taken out of the river in said Section 36, and duly recorded the notice November 6, 1884. Brown purchased the land described in Section 36, now owned by the mill company, from the State of Oregon, intending to build a flour-mill thereon, and commenced construction of a dam in the river and another in an arm thereof in 1884, and began construction of the ditch or mill-race that year, dug the ditch and took water to the mill site a year or two afterward.
The dam and ditch were constructed for the purpose of diverting water for furnishing power for a flour-mill and for irrigation. He soon after constructed a building for a mill and finished the same about 1888. At that time but little grain was raised in Harney Valley. For two or three years the attempt to raise grain was unsuccessful on account of frost, grasshoppers, crickets and other obstacles, and the grain raisers became discouraged and it was several years later before they began raising it in quantities. There was “nothing for the mill to grind,” or not sufficient grain raised in the valley to justify running a mill until about 1899, when ma
*60
chinery was installed in the mill and they commenced the successful operation of the same in making flour.
In the meantime the dam was kept up and water ran through the mill-race, a portion of which was used for irrigation. The irrigation of land in Section 36 was commenced as soon as they got water in the mill-race. After passing through the wheel the water runs hack into the river channel on the land of the mill company. After the construction of the first dam, it washed out, and they constructed a new dam about a half a mile below the old dams, but did not impound any more water by means of the new dam than they did by the first dams. The appellant contends that the water appropriated for power purposes was not applied to a beneficial use within a reasonable time and that no sufficient excuse for not making such application is. shown by the testimony.
The record shows that under all the circumstances of the case this claimant and its predecessor used due diligence in making an application of .the water to a beneficial use. At the time of the initiation of the right that part of the country was in an early stage of development. Being remote from any railroad or means of water transportation, the purpose of raising grain and manufacturing flour was for local consumption. Dams were constructed for impounding the water and a ditch or mill-race made to convey the same to the mill site and a building was erected for a mill. Further progress was delayed until sufficient grain was raised in the valley for the practical operation of a flouring-mill. When the grain was grown, machinery was installed in the mill building for manufacturing the grain into flour and other products. It would have been futile to have equipped the mill and allowed it to remain idle and rust and deteriorate a few years before it could be utilized.
*61
The test, both in the construction of the necessary works and in the application of the water to a beneficial purpose, is reasonable diligence.
There must be by such assiduity of work of construction as will manifest to the world a
bona fide
intention to complete it within a reasonable time. The question is one of fact and must be determined from the surrounding circumstances in each particular case:
Nevada Ditch Co.
v.
Bennett,
30 Or. 59, 91 ( 45 Pac. 472 , 60 Am. St. Rep. 777 );
Seaward
v.
Pacific Livestock
Co., 49 Or. 157 ( 88 Pac. 963 );
In re Willow Creek,
4 Or. 592 ( 144 Pac. 505 , 146 Pac. 475 );
In re Hood River,
114 Or. 112 , ( 227 Pac. 1065 -1067), and cases there cited.
The quantity of water awarded this claimant is not involved upon this appeal. The date of priority of 1884 awarded the Burns Flour Milling Company for power purposes by the Circuit Court is affirmed.
The Burns Flour Milling Company was awarded a right for 26.7 acres in Section 1, Tp. 22 S., E. 31 E., W. M. This land was purchased by Mr. Brown, the predecessor of claimant in 1901. Neither he nor claimant made any appropriation or intended to make any appropriation of water for this land in Section 1 prior to the date of its purchase. The matter of irrigating the 26.7 acres in question was not contemplated at the time the notice was posted or the first appropriation was made. As to this portion of the appeal, it must be sustained and the award of the Burns Flour Milling Company for land in said Section 1 will be modified by changing the date of relative priority from 1884 to 1901 for all of the 26.7 acres.
Evidence.
At the time of the taking of the testimony before the water board, in the present proceeding,
*62
claimant Pacific Livestock Company introduced and read into the record the testimony of J. S. Devine, now deceased, given in the United States Circuit Court for the District of Oregon in the case of
Pacific Livestock Company
v.
William D. Hanley et al.
Several of the claimants objected to the testimony and contended that it is not competent. The testimony of other witnesses in the federal court was also read into the record which we will hereafter refer to.
The rule governing the admissibility of the testimony of these witnesses is embraced in Section 727, Or. L., subdivision 8, which provides that, “the testimony of a witness, deceased or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter,” may be given on the trial. It is conceded that the witness, John S. Devine, was dead at the time this record was introduced. His testimony was given in a former action in the federal court.
A reading of Devine’s testimony clearly indicates that it was relating to the same matter as that to which it relates in the present proceeding, namely, the history of the early settlement, cultivation, fencing and construction of artificial works for, and the irrigation of, the land of the claimant. The testimony was taken upon the trial of the case in the federal court on September 5, 1900. It is contended by the respondent claimants, particularly William Hanley Company, that in the present proceeding “the issues are not the same” as those in the federal court. The suit in the federal court was different in form from the present proceeding but the object and purpose, as we understand the decree, was in a general way to regulate the irrigation of large tracts of land involved in the present proceeding. We referred to this
*63
question in the case of
Obermeier
v.
Mortgage Company Holland America et al.,
111 Or. 14 ( 224 Pac. 1089 , 1092 et seq.). See, also,
Laam
v.
Green,
106 Or. 311, 319 ( 211 Pac. 791 );
Beard
v.
Royal Neighbors,
60 Or. 41 ( 118 Pac. 171 ).
Under the record we think that the testimony of Devine given in the federal court was competent and binding, as between the Pacific Livestock Company, the plaintiff, in the federal suit, and W. D. Hanley, and Wm. Hanley Company, his successor in interest in several sections of land involved in this proceeding, and the various other parties to the federal decree, and their successors in interest who are interested in the present proceeding.
The main part of the testimony in this proceeding was taken in the contests that were initiated. At the commencement of the hearing before the water commissioner there was a general stipulaton entered into between various water users, which recites thus— “it being the purpose of this stipulation that all testimony taken in one contest may also be used in that other contest and it being understood that the purpose of this stipulation is to avoid taking the same testimony in this proceeding more than once.” We think this stipulation has an influence in making the testimony of Devine admissible as to all the parties to the stipulation whose interests are affected thereby. The testimony is unquestionably admissible as between the Pacific Livestock Company and Wm. Hanley Company, and the other water users who were parties defendant to the suit in the federal court. The issues at the former trial of the suit were the same, or substantially the same, as the issues in the present proceeding. Opportunity for cross-examination at the former trial was ample.
*64
As a general rule, the requirement as to the issue is satisfied where the issue on which the former evidence is offered is common to both cases. It is immaterial that there were other issues in either case, that the subject matter of the two actions is different, or that the first action was criminal and the second is civil. In the present proceeding there are large tracts of the same land involved that were in question in the suit in the federal court while there are other issues pertaining to other land in the present proceeding: 22 C. J. 430, § 515; 10 B. C. L. 966, § 143. See, also, 3 Wigmore (2 ed.), § 1387, where it is declared in substance that the issue on the occasion when the former testimony was given must have been substantially the same. Mr. Wigmore there says: “The situation is one that calls for common sense and liberality in the application of the rule and not a narrow and pedantic illiberality. ’ ’ In a proceeding of this kind a liberal rule should be invoked in order to ascertain the truth, especially in regard to the early settlement of the country, or as early as the eighties.
The contestant, Pacific Livestock Company, also introduced into the record the testimony of Ira Venator and Isador Poujade. It is not shown that these witnesses were not available, but it is stated one or both were in Harney Valley. No reason'is shown why these witnesses were not called and sworn in. No necessity appears for introducing the record of the former testimony. We do not consider it competent. We are not aware that the testimony is of vital importance.
Appropriation.
As a general rule, to constitute a valid appropriation of water, three elements must exist: (1) an
*65
intent to apply it to a beneficial use, existing at the time or contemplated in the future; (2) a diversion from the natural channel by means of a ditch, canal or other structure; and (3) an application of it within a reasonable time to some useful industry:
Low
v.
Rizor, 25 Or. 557
( 37 Pac. 82 ). It is said in Black’s Pomeroy on Water Eights, § 48, in regard to the intent, that—
“The fundamental doctrine is well settled that the appropriation must be made with a
bona fide
present design or intention of applying the water to some immediate useful or beneficial purpose, or in present
bona fide
contemplation of a future application of it to such a purpose, by the parties thus appropriating or claiming.”
15. In the present case it may be said, in regard to the first requirement to constitute a legal appropriation of water, that it is the present
bona fide
design or intention of applying it to some immediate beneficial use, or the appropriation must be made in the present
bona fide
contemplation of a future application of it to such a purpose; it should be shown in all its fullness by the facts and circumstances to have been present in the mind of the appropriator at the time the appropriation was made or claimed.
When the water is utilized and the appropriator reaps the fruits thereof, in the harvesting of hay, grain or depasturing the land irrigated or in some other way, of course such intent plainly appears. The provision for future contemplated use affords an opportunity for the completion of a system of irrigation works leveling or preparing land for the reception of the water or construction of a mill or power plant, as the case may be, all of which cannot be done in the ordinary course at the time the appropriation is made.
*66
The rule as to the second requirement or diversion of the water has a special application or exception to much of the land in Harney Valley. It involves the matter of the natural irrigation of the land. Nature has been very generous to Harney Valley in this respect. "With practically no artificial works for irrigation, thousands of acres are naturally watered. When will the date of appropriation be fixed in such cases? It would seem to be fair and equitable, if not absolutely essential, that such date be deemed to be when the proprietor of the land accepts the gift made by nature, and garners the produce of the irrigation by harvesting or utilizing the crops grown on the land, or making preparation for so doing, or in some substantial way indicates that it is his intention to reap the benefit of the fruit of the irrigation. When no “ditch, canal, or other structure” is necessary to divert the water from its natural channel, the law does not vainly require such works, prior to an appropriation. We do not intend to suggest that in most cases the building’ of some kind of an irrigation system is not requisite after the appropriation is made in order to effect an economical beneficial use of such water and prevent waste. This should be accomplished within a reasonable time as circumstances permit and necessities require, to the end 'that the greatest practical benefit possible-may be obtained by the economical use of the water of the stream. In this way the natural system of irrigation can be changed to a control system.
We understand that the latter system is contemplated by the water users of Harney Valley, by impounding the waters of Silvies River and by construction of more complete artificial irrigation works
*67
or systems. When this is consummated there will be less danger of a scarcity of water.
Pacific Livestock Company's Habney Valley Lands.
The appellant, Pacific Livestock Company, upon this appeal complains that the Circuit Court so changed the award of the water board that about 2,000 acres of its Harney Valley lands were deprived of water, and 3,500 acres, or the remaining lands, were only given half a water right. In addition this company complains that approximately 3,600 acres of its lands were given a later priority than that establised by the water board, and priorities of other claimants were changed to the disadvantage of the company.
This company claims error in all changes made by the Circuit Court in the water board’s awards, and also in not sustaining its exceptions to certain orders of the water board. This necessitates an examination of the testimony concerning the separate awards made to the Pacific Livestock Company and pertaining to the other alleged errors.
Charles Cronin, who was a manager for Todliunter & Devine, the predecessors in interest of Pacific Livestock Company and commenced such services in July, 1885, relates that at that time the headquarters of the firm were on the Island Ranch, the same as at the present time; that Todliunter & Devine, the predecessors in interest of the Pacific Livestock Company, then owned and operated the ranch; that the S.
y2
of Section 27 and Sections 28, 29 and 30, Tp. 24 S., R. 32 E., W. M., were all fenced when he came there, and some of the fences appeared to be ten years old. The fences inclosed practically all of the “low land.” He remained in the valley until 1904. A portion of the land was claimed under
*68
a swamp-land title which failed, and the fence on the east was moved on the line of the land now owned
by
the. present company. Afterward other lands were acquired by the company, farther up the valley. The land was used principally for the raising of cattle and horses; at times as many as 15,000 head of cattle being kept on the home place and the range in the vicinity thereof.
Warm Springs School Section.
In Section 36, Tp. 23 S., R. 30 E., W. M., the water board awarded the Pacific Livestock Company a water right for 471 acres with a date of priority of 1888, and the Circuit Court awarded it 373 acres with a full right, and 45 acres with a half right, a total of 418 acres with the same date of priority.
It appears that Todhunter made an application for this land in 1879. There are three warm springs to the west of this land, two of which flow on this property. Prom the northern one a ditch was constructed. Ditches were built across the field in different places to spread the water over the land. The first work done on the northern spring was 1888, consisting of ditches made across the section. Later they built a big ditch along the north and east of the field and constructed levees to spread the water. Work was done on the ditch in the spring of 1888. The east half of the section receives water from the river by means of overflow. The land has been irrigated regularly ever since 1888. The contention in regard to this is a difference in the survey, or number of acres.
The water board approved a survey of the amount of irrigable land of 471 acres. We think a full water right should be awarded for that number of acres, with a priority of 1888.
*69
Potter Swamp.
Part of the land under this designation was denied a water right by the court. It is described as follows:
NE.
Vi
of tie SE. %.
NW.
Vi
of the SE.
Vi,
Section 7, Tp. 24 S., R. 31 E., W. M.
According to the State Engineer’s map there are forty acres of irrigable land in each subdivision. The survey of the engineer of the claimant gives the same number of acres. There are 1,240 acres besides the two subdivisions known as the Potter swamp-land which were awarded a date of priority of 1885 by the Circuit Court and 160 acres with a date of priority of 1895. This involves only a question of survey. The Pacific Livestock Company is awarded a water right for 40 acres additional, with a priority of 1885.
Hudspeth School Section.
A question árises upon this appeal in regard to the N. % of this section. The water board made the following awards with a priority of 1887:
40 ac. NE.
Vi
NE. %
13 ac. NW.
Vi
NE. %
21Vs
ac. SW.
Vi
NE.
Vi
40 ac. SE.
Vi
NE.
Vi
28
ac. NW.
Vi
NE.
Vi
10y2 ac. SW.
Vi
NW.
Vi
17 ac. SE.
Vi NW. Vi
See. 16, Tp. 23 S., R. 31 E., W. M.
The Circuit Court decreased the area of the award.
The testimony shows in part that Mr. Todhunter acquired this land in 1883. It was fenced in 1887. Hay has been cut on a portion of the land. On account of the land having been used as a kind of depot', or stopping place for holding cattle in driving them to and from the range, the land is used principally for pasturage. Three main sloughs carry
*70
water from the river on to the land. The overflow from the river and from an arm of Foley’s slough floods a portion of the east part during’ some years. They also took water from Lampshire slough and constructed levies and dams to spread the water. About three fourths of the section has been irrigated. The State Engineer’s map indicates that the north one half of this section has sage-brush growing with the grass and is not in a high state of cultivation, apparently for the reason that it has been used for pasturage. With proper cultivation and perfected irrigation it is quite likely that the north half of this section in question would be very productive. It is not to be supposed that a piece of land like the one in question could all be put in condition for irrigation at one time. Many areas which are cultivated and irrigated are added to gradually as circumstances permit. For more detailed discussion of this question, which space will not allow here, see
In re Hood River,
114 Or. 112 ( 227 Pac. 1065 ).
The record shows that the claimant is entitled to a water right for the number of acres awarded by the water board as above set forth. This right, however, should be conditioned upon the thorough irrigation of the land. The Pacific Livestock Company is allowed five years from the date of the entry of the decree herein in the Circuit Court to make complete application of the water to the number of acres awarded in the north half of this Section 16, or such further time as may be allowed by the State Engineer upon proper application thereof.
Miller School Section.
Section 36, Tp. 23 S., R. 31 E., W. M. „
In this section there is a difference of 115 acres in the area claimed from that allowed by the'Circuit
*71
Court, which pertains to the question of engineering or computing the number of acres irrigated. We have examined the testimony, which will occupy too much space to narrate in these findings, and we will endeavor to refer to it in a general way hereafter. We find no difference in the land of this section. In conformity to the map of the State Engineer, the claimant is awarded 640 acres in this section with the date of priority of 1887, as given by the court.
Smith and Clemens Place.
Section 4, Tp. 24 S., B. 31 E., W. M., and Sections 33 and 34, Tp. 23 S., B. 31 E., W. M.
The company claims 1,860 acres. The court awarded a water right for 1,612.5 acres. The testimony shows that the various settlers who first settled upon and formerly owned the land made improvements thereon from time to time and gradually put to a beneficial use and irrigated all of the land susceptible of irrigation in the three sections mentioned. They constructed artificial works to put the water on the high places and drained it off from the low places. No question is raised in regard to the dates of priority. There is a question in regard to the number of acres of irrigable land. The survey made by the State Engineer as shown by his maps and fortified by the maps of the engineer of the claimant, supplemented by the testimony of the witnesses, warrants the following award of a full water right to the Pacific Livestock Company as to these three sections as tabulated:
768.5 aeres with date of priority of 1887.
320 aeres with date of priority of 1889.
131.5 acres with date of priority of 1893.
640 aeres with date of priority of 1900.
Mace Ditch.
In the SW. % of SW. % of Section 1 and Section 2 and the S. % of Section 10, Section 11, and Sections 12
*72
13, 14, 24, all in Tp. 24 S., E. 31 E., W. M., and the N. i/2 of SW. %, Sec. 7, Tp. 24 S., E. 32 E., W. M., the record calls for the following awards to the above-mentioned land of the Pacific Livestock Company, namely, a full water right for:
673 acres with, a date of priority of 1887.
631.5 acres with a date of priority of 1888
203 acres with a date of priority of 1893.
97.5 acres with a date of priority of 1894.
255 acres with a date of priority of 1897.
as tabulated by the water board in its findings of fact and order of determination. There is a difference in the exact number of acres of this class of lands which was awarded a water right, and, also, 289 acres which was awarded “one half a water right.” The date of relative priority is not questioned. The State Engineer’s survey and map shows 1889 acres; and the survey of the claimant’s engineer, as shown by a map in the record, and the award made by the water board indicates that in the sections of land mentioned there are 1,860 acres which are irrigated from the waters of Silvies Eiver. The court awarded a full water right to 1,519.5 acres and one-half water right to 289 acres.
Mark’s Ditch: and Dam.
In Section 7, Tp. 24 S., E. 32 E., W. M., the Pacific Livestock Company was awarded by the water board a water right with a priority of 1887 for the following :
20 ac. NE. % NW. %
24 ae. NW. % NW. 14 10 ae. SW. % NW. %
37.5 ac. SE. % NW. %
This land and many other tracts were surveyed and resurveyed by the State Engineer. The map of the State Engineer shows a total of 107 acres
*73
of this land as irrigated. The map of Mr. Grilling, the engineer of the claimant, shows 91.5 of irrigable land. The Circuit Court awarded a one-half water right to 70 acres of this land. We cannot make the survey. The statute imposes that duty upon the State Engineer in the first instance and we are governed by his findings and the testimony in the matter, from which we award the claimant a full water right for 91.5 acres of this land, as tabulated by the water board in its findings of fact and order of determination, with a date of relative priority of 1887.
Chapman Slough Country.
Sections 15, 16, 21, 22 and 23, Tp. 24 S., B. 31 E., W. M. (as Tabulated by the Water Board on Page 70 of Its Findings of Fact and Order of Determination).
There is a difference in the award made by the Circuit Court and the water board of 61 acres, which is involved in this appeal. Only a small fraction of the lands of the claimant in these various sections is classed as irrigated. For the general reasons hereinafter given, the claimant is awarded a full water right for 739 acres of land in the section mentioned, with the dates of relative priority as fixed by the water board and the Circuit Court.
Cronin and Bim Bock Dam.
Sections 25 and 26, Tp. 24 S., B. 31 E., W. M. (Tabulated on Page 73 of the Decree of the Lower Court).
The claimant seeks to obtain a water right for 137.5 acres in these two sections in addition to the award made by the Circuit Court. A similar question to those above mentioned as to the survey and
*74
the computation of the number of acres occurs. There is no controversy as to the dates of priority. A part of the lands in three of the subdivisions of Section 26 come under the School Teacher’s ditch and are listed on page 74 of the decree of the Circuit Court, and also on page 72 of the order of determination of the water board.
The company is awarded as irrigated by means of the Cronin and Rim Rock dams, 548.5 acres in Sections 25 and 26, as tabulated on page 71 of the findings of fact and order of determination of the water board, with the dates of priority as fixed by the Circuit Court and the water board. This award does not include the portion of the land under the School Teacher’s Ditch.
Elk, Pottjade and Foley Dams.
Sections 29, 30, 31, 32, Tp. 24 S., R. 32 E., W. M., and Section 36 in Tp. 24 S., R. 31 E., W. M. (Tabulated on pp. 73 and 74 of Decree).
The lands embraced in this class are in the sections as above named. The Circuit Court made an award of a water right to 1,281 acres in these sections. The water board made an- award of 1,576 acres.
In regard to Sections 29, 30 and 31 there is no material difference between the award made by the court from that made by the water board. In Sections 32 and 36 the appellant claims a water right for about 295 acres more than allowed by the Circuit Court. In making the tabulation the water board approved the survey made by Griffin as to the number of acres. There was but little difference between his survey and that of the State Engineer. It appears these sections were resurveyed by the State Engineer assisted by Messrs. Cooper and Dodge.
*75
Some of this land was settled upon before a survey of the same was made. The record shows that the settlement on Section 36, Tp.
24
S., R. 31 E.,
W.
M., was made by one Lassell in 1882, Jennie Bailey in 1884 and W. F. Meglemere and Charles McGruire in 1886. It is claimed that the other land was settled upon as follows: That the NW. % of Section 34, Tp. 24 S., R. 32 E.,
W.
M., was applied for by Mr. Tod-hunter as swamp-land in 1879. The NE. % of that section was the Jones homestead entered in 1887. The balance consists of the Collier homestead settled in 1886 and the Lassell pre-emption was settled in 1881, and the Schultz agricultural college land was applied for in 1883. Section 32 in the same township and range consists of the Schultz agricultural college land applied for in 1882; Lassell homestead entered in 1882 and Fry pre-emption entered in 1882.
The land in Section 29, same township and range, consists of the Cronin pre-emption settled in 1886 and the land in Section 30 consists of the Modie homestead settled in 1888. The testimony shows that the land included in this claim is in the neighborhood of the Island ranch buildings and is claimed to be the first land settled in the valley; that the irrigation works on these sections are also used to turn the water into the sloughs leading to the south, and that the water is carried southerly and southeasterly and assists in the irrigation of the main body of the land irrigated from the west fork of Silvies River. The Foley and Morrell dams also turn the water easterly on to Section 33, Tp. 24 S., R. 32 E.,
W.
M., and Section 4 of Tp. 25 S., R. 32 E.,
W.
M.
The testimony of the old settlers, who were witnesses in the case mentioned in the federal court, to which we have referred, pertains to these sections of land and other land. John S. Devine, who for
*76
merly transacted the business for Todhunter & Devine, the predecessors in interest of the Pacific Livestock Company, testified to the effect that he came to Harney Valley in 1874 and engaged in the cattle business; that he purchased two ranches known as the Venator and Cooksie places. While he occupied the Island ranch the greatest number of cattle that he had at one time was 25,000 head. They ranged over the valley in the summer and were kept on the Island ranch in the winter. The buildings or headquarters of the Island ranch áre located near the comer of Sections 29, 30, 31 and 32, Tp. 24 S., E. 32 E., W. M. The cattle wintered east and south of the headquarters on the Island ranch and got their hay food principally in Tp. 25 S., E. 32 E., W. M., and also ranged north of the ranch-house. They cut about 2,000 tons of hay in Tp. 25 S., E. 32 E., W. M., and Tp. 24 S., E. 31 E., W. M. The land was irrigated from Silvies Eiver; that without irrigation the grass and hay would not have grown and the land would have been valueless; that they occupied the land in Tp. 25 S., E. 32 E., W. M., before they knew to whom it belonged and during the time it was being surveyed by the United States surveyor; that they fenced the land in Tp. 25 S., E. 32 E., W. M., and a portion of Tp. 25 S., E. 32% E., W. M., and a portion of Tp. 26 S., É. 32 E., W. M., and also in 1883 or 1884.
For the purpose of turning water out of the west fork of Silvies Eiver for irrigation, he had dams put in several places along in the river. They were the Lassell dam, the Elk dam and the P'oujade dam and the Morrell dam. That when those dams were put in he did not know of any other dams that were in the river above his place, nor any dam in the river at any place in Harney Valley up the canyon;
*77
that the lands were intersected by sloughs, the water from which irrigated the land on each side. The river channel continues to be deep down to Section 10, Tp. 25 S., R. 32 E., W. M., and then spreads all over the country. Beside the big field they also had Rimrock field west of the house. They cut hay on that and used it for pasture. It was irrigated by water from the river; they also cut hay in Sections 10, 11, 16 and 2, Tp. 24 S., R. 31 E., W. M. This was also watered from the river.
The witness further testified that when he commenced his operations and put in these dams and turned the water out, there were very few people living in the valley; that the first dam put in the river, outside of his dam, was the Harney Valley dam, Ditch and Irrigation Company’s dam.
J. C. Foley testified in part as follows: That he came to Harney Valley in 1883 and has lived there practically ever since. He worked for Todhunter and Devine in 1885 and part of 1886 and for the Pacific Livestock Company in 1889 and until 1897. His headquarters were on the Island ranch. He was there in 1888; that when he went there in 1889 he found three dams in the river; that the land of claimant received water from the Harney Valley Dam and Ditch Company system; the Hog Pen dam, now called the Foley dam, in the northeast quarter of Section 31, near the. company’s buildings, the dam in the NE. % of Section 36, Tp. 24 S., R. 31 E.,
W.
M., marked as the Jones dam, and the dam marked as the Poujade dam; that the Poujade dam appeared to be two or three years old when he first saw it; that later they put in two dams to turn the water on to the land and built some ditches out on the sage-brush land. The ditch was about ten feet wide on the bottom and about three feet deep.
*78
Charles Cronin testified in regard to the cultivation and irrigation of this land during the time he had charge of work on the ranch. Ben Newman also testified in detail in regard to the artificial works constructed to irrigate the land; that the land in Sections 31 and 32, Tp. 24 S., R. 32 E., W. M., has been irrigated ever since he first helped cut hay on the land in 1898; that Sections 29 and 30 were irrigated in the same manner as Section 31; that when he first knew the Foley dam it was an old structure.
We approve the survey of the number of acres allowed by the water board and the decree will be modified so as to allow a water right to the Pacific Livestock Company in this class. of land for 1,576 acres, as tabulated by the water board in its findings of facts and order of determination at pages 71 and 72.
School Teacher’s Ditch, Dams in River, Chapman’s Slough and Big Ditch.
The lands under this classification in Sections 26, 27, 35, 11, 12, 13, 14 and 25 in Tp. 25 S., R. 31 E., W. M., and Sections 5, 6 and 7, Tp. 25 S., R. 32 E., W. M., tabulated on pages 74 and 75 of the decree, are entitled to an award of a water right in favor of the Pacific Livestock Company for 2,412.5 acres in the various subdivisions as listed or tabulated by the water board in its findings of fact and order of determination with this exception; the following change will be made:
28 ae. NW. % SW. %
25 ae. SW. % SW. %
27 ae. SE. % SW. %
Section 13, Tp. 25 S., R. 31 E., W. M., with a priority of 1897.
This makes an additional allowance in these three subdivisions of land for 20 acres in accordance with
*79
the map of the State Engineer. All the other subdivisions in sections enumerated, the acreage will remain as listed by the water board. The lands in this class were given three dates of priority; 442 acres in 1885 priority, 359 acres of land under School Teacher’s ditch, an 1891 priority, and 1,591.5 acres' and the other lands an 1897 priority.
It is contended by appellant, Pacific Livestock Company, that all the land in Sections 12, 13, 14, 23 and 24, Tp. 25 S., R. 31- E., W. M., should be given a date of priority of 1885. It appears that in 1897 the company constructed what is known as the Big ditch, or Wright’s Point ditch, which brought under irrigation for the first time much of the land in the sections last mentioned. It is claimed by the company that all the land last mentioned received water from the river by means of sloughs and low depressions, or overflow, from the river before the ditch was constructed.
It appears that the land has been used principally as pasture since 1898; that after the water came down through the Big canal it went over the land in question; that the body of land has received water from the west fork of the river, through the Big canal, since 1898. The east part of the tract was cut for hay.
The Cronin ditch was built in the fall of 1902. The purpose of that was to connect the two channels together, and drain the land so that hay could be cut on it, and also to keep the ice off of it in winter. The channel was made to control the water and drain it off. That they made a cut known as the School Teacher’s cut in 1891; that they could force the water out by the Elk dam through a slough or depression that came out near the old Poujade dam and then ca,rry it through sloughs to Sections 5 and 6; that
*80
the sloughs in Sections 5 and 6 got water before the School Teacher’s cut was made, during the extreme high water; that in extreme high water the water backed up from “this swamp in here.” In the construction of the Poujade and other dams, some distance to the north of this land, the water of the river was turned southerly and southwesterly into sloughs and low places and incidentally reached this land prior to the building of the Big ditch. Some of the water naturally flowed from the river, passed over other land, and eventually reached the land in question.
Bitching was done on two tracts in 1886 all through this strip of country. The Cronin ditch, as stated by one witness, “It was to drain them swamps, that wet land, that overflowed land.” There was also a dam in the head of the ditch so as to throw the water out over -the land, if they wanted to; also, other ditches intended as drainage ditches. In places they would have the effect of improving the character of the hay crops; that a field known as the Red S. field was used almost altogether for pasture, where they wintered some 5,700 head of cattle. The cattle, would bed in the tules and be protected thereby during the stormy weather.
We do not find that any lateral ditches or dams or other artificial works were constructed on or near the tracts for the purpose, or with the intent of appropriating the water for this particular land until the construction of the Big ditch in 1898. Before that time the water, for the most part, took its natural course and followed the sloughs and low depressions. The water board allowed an early date of priority for some of these lands. While it is a difficult question to solve, and we have devoted much study thereto, and made a careful examination of
*81
the record, we are unable to see that the findings of the water board and the Circuit Court as to the dates of priority are not as correct and equitable as they can be made from the record.
It would be of great assistance, no doubt, to make a survey or examination of the land. This privilege the water board had. The relation of the dates of priority is, of course, the important factor. In many instances, governed by this record, the matter is at best an estimate. Under all the circumstances the dates of priority as fixed by the water board for the tracts in question, will be affirmed.
Cronin Ditch, West Fork Slough and Numerous Small Ditches.
The lands classified under this heading are situate in Tp. 25 S., E. 32 E., W. M., the subdivisions in this township of the claimant, Pacific Livestock Company, are tabulated in the decree of the Circuit Court at pages 76, 77, 78 and 79, and in the order of determination of the water board on pages 74, 75, 76.
The appellant raises three questions in regard to the award in this township. The first is the objection to the acreage allowed which, like the other tracts of land, involves a survey. There is a difference of 391 acres between the award made by the water board and that made by the Circuit Court in this township. In Sections 4, 8, 9, 10, 15 and 16, there is but little difference in the award as to the acreage. In Section 17, with the exception of the NE. % of the NE.
%,
the State Engineer and the engineer for the claimant found all the lands fully irrigated. The court did not award a water right to all of the lands shown to be irrigated on the map of the State Engineer. In Section 18 the court also
*82
deducted from its allowance some of the land listed by the State Engineer, or shown on the map of the engineer of the claimant in instances where the water board followed that survey. In Section 19 the water board made an award as to acreage, differing slightly from either the Griffing map and also in some part from its own map. The award made by the court is 48 acres less than that made by the water board. In Section 20 there is a small difference between the awards. In Section 21 and in some of the other sections it is claimed that there are slight errors in the tabulations and in several instances the court awarded only a half water right.
As to Section 22, appellant contends that the award made by the water board should be approved. As to Section 23 the only complaint is in regard to failure to allow a full water right as to part of the land. In Section 26, the court awarded no water right for this section. The water board awarded a right to 21 acres.
The decree of the Circuit Court as to the land of claimant Pacific Livestock Company in Tp. 25 S., R. 32 E., W. M., will be modified as follows, as far as the same pertains to the acreage to which a water right was awarded. In Section 19 the award will be in accordance with the survey of the State Engineer as shown by his maps as follows:
40 ac. NE.% NE.% 20 ac. NW.% NW.% 8 ac. SW.% SW.% 12 ac. SE.% Sl.%
40 ac. NW% NE% 20 ac. SW.% NW.% 13 ac. SE.% SW.%
15 ac. SW.% NE.% 0 - SE.% NW.% 40 ac. NE.% SE.%
36 ac. SE.% SE.% 20 ac. NE.% SW.% 34 ac. NW.% SE.%
35 ac. NE.% NW.% 40 ac. NW.% SW.% 13 ac. SW.% SE.%
The land of the claimants in the other sections in the townships mentioned will be awarded a full water right for the number of acres as tabulated or listed by the water board.
*83
The second question relates to the allowance made by the court of a half water right to some of the lands to which we have already referred. This allowance of a full water right, in lieu of the half water right allowed by the court, is subject to the conditions hereinafter made as to the use of the water until a complete application thereof is made.
The third objection is as to the priorities granted. This question is governed by much the same conditions we have referred to in relation to the School Teacher’s ditch. The irrigation of this body of land is connected or mingled with the drainage thereof. It is extremely difficult to ascertain from the record when the reclamation of the land by drainage may be said to have ceased and the irrigation of the same commenced. It is also difficult to select the part they have reclaimed by drainage and the part which may have been arid before the irrigation thereof. The Cronin ditch, which was built in 1898, was for “the purpose of carrying the water away in the fall of the year.” It was carried from where the channel gave out, or where the water spread over the land down to where the main channel reformed in order to prevent the water from spreading over the land.
The dates of priority awarded by the trial court are affirmed.
Much of the testimony that we have referred to, and a great deal more that we have .read relating to the claim under the name of the Cronin ditch, applies with equal force as to the acreage to the lands in the following claims:
Cbowley Dam
and Black
Slough.
Section 24, Tp. 25 S., R. 32 E.,
W.
M.
The main controversy in regard to the award made by the Circuit Court to the Pacific Livestock Com
*84
pany for land in this section pertains to a one-half water right. In some instances in the different claims to which we have referred, the land is served by water from two different systems, and on this account, perhaps, there is a difference in the survey made by the State Engineer and the engineer of claimant. There is no question raised by the appellant as to the date of priority for this land. The testimony supports the findings made by the water board. In this Section 24, the court awarded water for more acreage than found by the engineer of claimant. The water board made an award for 412 acres, which was less than the number shown on the map of the State Engineer and less than the number of acres awarded by the Circuit Court. The award made by the water board, as tabulated in its findings of fact and order of determination, will be approved with a full water right with a date of priority, description, dams, ditches and streams as specified in the order of determination on page 77.
Fred Otley and several other claimants assign error in the award of the dates of priority of the Pacific Livestock Company for lands classified under the heads of Boat Ford dam and slough and Square Well slough, both awarded a date of 1886, and Black slough a date of 1887. After a careful re-examination of the testimony, as to the dates of priority for these lands, we find no reason for making a change in the dates of priority awarded by the Circuit Court.
In the tabulation of lands in Sections 28, 33, Tp. 24 S., R. 32 E., W. M., and Sections 4 and 9 in Tp. 25 S., R. 32 E., W. M., there is a difference of about 147 acres in the award made by the Circuit Court and that made by the water board, the latter being the larger. The court awarded a number of acres a one-half water right. As we have already men
*85
tioned, ascertaining the number of acres is a matter of engineering. In these sections there is but little substantial difference between the number of acres shown on the map of the State Engineer and the number of acres of irrigated land shown on the map of the engineer of claimant, on which in some instances the figures are less than those of the State Engineer. The decree of the Circuit Court will be modified so as to award the Pacific Livestock Company a full water right for 1,226.5 acres as listed and tabulated by the water board on page 77 of the order of determination.
Hayes Dam.
Sections 21 and 27, Tp. 24 S., R.. 32 E., W. M..
The appellant claims 34 acres of irrigated land in Section 27, in addition to the award, and 55 acres in that section have been awarded only a one-half water right. In these two sections the water board approved a survey as made by Mr. Griffing and shown on the claimant’s map. The claimant. Pacific Livestock Company, will be awarded 211.5 acres with a full water right and date of priority as listed in the order of determination of the water board at page 78. No question of priority is involved in this appeal.
Slough in Center of Section 34, Tp. 24 S., R. 32 E., W. M.
This class of land is tabulated on page 80 of the decree of the court. A similar question is involved in regard to this land as in the last two claims mentioned. The award for Section 34 and Section 3, Tp. 24 S., R. 32 E., W. M., which comprises this class of land, will be for 737 acres as tabulated on
*86
page 78 of the order of determination of the water board with a full water right.
In the award for land in Section 3, the State Engineer and the engineer of the claimant differed only five acres in respect to the irrigated acreage. In respect to Section 34, the State Engineer, the engineer of claimant, the water board and the Circuit Court substantially agreed as to the acreage.
Dam in Section 35, Tp. 24 S., R. 32 E., W. M.
The computation shows 23.5 acres on page 81 of the decree. The water board awarded 58 acres. The decree of the Circuit Court will be modified so as to award the Pacific Livestock Company a water right for 58 acres in this section as listed or tabulated in the order of determination of the water board at page 78.
Square Well Slough and Slough Through SW. *4, Section 35, Tp. 24 S., R. 32 E.
The main question upon this appeal is in regard to a half water right awarded by the court for 68 acres. The award for this class of land, which is embraced in Sections 2 and 10, Tp. 25 S., R. 32 E., W. M., will be for a full water right for 1,112 acres, as listed in the order of determination of the water board at page 78.
Black Slough.
All of this class of land is in Tp. 25 S., R. 32 E., W. M., in Sections 1, 11 and 12. (See pages 81 and 82 of the Decree of the Court.)
The appeal is as to the awards under this claim involved first, the reduction in the acreage; second, the allowance of certain lands of only one half a. water right; third, the fact that the court changed
*87
the priority of 1885 awarded appellant by the water board to 1887. There is no substantial question as to the area upon this appeal; the number of acres in Section 1 being increased 8.5 above the number claimed as shown on claimant’s maps, the number of acres in Section 11 reduced 10 acres. In these two sections a half water right was awarded a few acres. In Section 12 the award was for the full 640 acres. Full acreage is claimed for Section 13 and the same is shown to be irrigated by the State Engineer’s map and was awarded a water right by the water board. The court reduced the acreage and awarded a one-half water right to a large area of land. The same conditions prevail as to Section 14. There is no exception taken as to Section 15. Some of the land in this section is under the Cronin ditch and is so listed. There is no objection to the acreage awarded for the five subdivisions in Section 23, a part of which is under the Cronin ditch and is not included in this award. The surveys of the number of acres in this body of land made by the State Engineer and the other civil engineer are substantially ' the same. The record warrants awarding a full right for 3,586.5 acres of this class of land as tabulated and listed by the water board at pages 78 and 79 of the findings of fact and order of determination.
In regard to the question of awarding a full water right to the land where only a partial application of water to a beneficial use has been made, we follow the general rule that where an appropriation and diversion of water has been made and the water partially applied, either to a part of the land intended to be irrigated at the time the appropriation is made, or where a partial application has been made to all
*88
of the land embraced, or intended to be embraced, in the appropriation, the appropriator is entitled to a reasonable time in which by dne diligence he can make a complete application of the water to a beneficial use. It is not the custom nor is it expected that one making an appropriation of water for the irrigation of land will put all of the land in cultivation or irrigate the land completely at one time. The law sanctions the application of the water to a beneficial use within a reasonable time, the party being required to use due diligence, according to the circumstances and difficulties to be encountered: See
In re Hood River, supra,
and cases there cited.
In lieu of the provisions made by the learned circuit judge in awarding a one-half water right for lands in this proceeding, each of the parties having land for which a water right has been awarded to which the water has not been applied completely to a beneficial use should be allowed five years from the date of the entry of the mandate herein in the Circuit Court, or such further time as may be allowed by the State Engineer to place the lands in cultivation, construct lateral ditches or other artificial works for the purpose of making an economical and complete application of the water to the lands. When the water is not wholly used for irrigation of the land to which it has been awarded, and the same can be estimated or determined with reasonable convenience, the water-master should allow a diversion of only a sufficient amount of water to irrigate the land which is ready to receive it, or the amount to be actually used upon the land to which the water is awarded. In connection with one class of the lands, the Boat Ford slough lands counsel for claimant making a comparison, refers to the award made for adjoining land
*89
in Section 28, Tp. 24 S., E. 32 E., W. M., of Marcellus B. Hayes, which land is said to he of the same character and affected by the same or similar slonghs or streams as the land of claimant, Pacific Livestock Company. This comparison is made in relation to the one-half water right awarded by the court. We notice in this connection that the Hayes award was given an early date of priority of 1886 for 387 acres of land and a later date of 1900 for 310 acres, much the same as appellant Pacific Livestock Company’s award of dates.
Naturally, some of the land, before it would be ready to receive the water, would require leveling or smoothing. Where this can be done with a reasonable amount of labor, and an appropriation has been made for the particular tract of land, the law does not presume that it was the intention of the appropriator to leave the small places which are a little too high to irrigate fully without leveling the land or constructing artificial works and thereby made patchwork of fields, meadows and pastures. We, therefore, allow a full water right with the restrictions above and hereinafter mentioned in lieu of the one-half water right awarded by the trial court. The same principle applies to the whole question of acreage to be irrigated.
The date of relative priority for this class of land is a more difficult problem. As we have already noted, the dates are not so material if they have a proper relation and are equitably arranged. When provisions are made for a complete appropriation of the water, and systems of artificial irrigation works are installed so as to make a reasonably economical use of the water and there is plenty of water for all the land, then of course the dates become unimportant.
*90
After careful consideration, the dates of priority for this class of land are affirmed.
William Hanley Company Lands.
Several claimants, joining in the brief with Fred Otley, assign error of the court in awarding the William Hanley Company a right from either Foley Sloug'h, East Fork or West Fork of Silvies River for lands with a date of priority of 1886.
Considering the stipulations of the various parties and the federal decree with a view of ascertaining how the several parties agreed at that time in regard to their respective rights to use the water of Silvies River, its branches and sloughs, for the purpose of irrigation and domestic purposes, and watering livestock, and noticing first the provisions relating to W. D. Hanley, it appears that it was stipulated and decreed that W. D. Hanley and his successors and assigns might maintain his dam in the East Fork of Silvies River in Section 21, Tp. 23 S., R. 31 E., W. M., and maintain his two ditches leading therefrom, one on the east side of the East Fork of Silvies River and one on the west side thereof “as the same are now constructed and built from the fifth day of May each year until the first day of July each year.” And divert and use so much of the waters of said Silvies River during that time as should be necessary to irrigate Sections 27, 35, 21, 23, and 25, the N. % of Section 22, the N. % of the S. % of Section 22 and the S. % of the SE. % of Section 22 and the W. % of Section 26, all in Tp. 23 S., R. 31 E., W. M.
The federal decree also recognizes the right of W. D. Hanley et al. to the use and enjoyment of the natural overflow of the river and of the water that would naturally run through his two ditches at any
*91
time when his dam, above described, is open. This could he done, as we understand the federal decree, although the water in the East Fork of Silvies River might be at such a stage that the use of the water, as stipulated by the Pacific Livestock Company and W. D. Hanley, and as stipulated by the Pacific Livestock Company and the other defendants, would leave practically none in the river for the use of the Pacific Livestock Company during the period mentioned. In other words, the stipulation recognizes the right of W. D. Hanley and the. other various parties stipulating with the Pacific Livestock Company, during the period from about the fifth day of May to about the first day of July of each year as superior to the right of the Pacific Livestock Company. It seems that the period between the two dates named was considered as the main part of the irrigation season. The Pacific Livestock Company was considered as having a superior right, to a certain extent, during the other portion of the season.
After the entry of the federal decree, W. D. Hanley conveyed the lands of his, described in the decree, to the Wm. Hanley Company, which is now his successor in interest. Therefore, the relative dates of priority of several of the claimants interested in this proceeding do not entirely depend upon the evidence outside of the record of the federal decree, but are, to say the least, influenced or governed to a certain extent by the solemn agreement between the parties themselves, which was thereafter embraced in the federal decree. In this connection the appellant Pacific Livestock Company contends that the court erred in awarding a date of priority of 1886 to a large area of land of William Hanley Company in Harney Valley, which
*92
lands in the main, lie above the holdings of the Pacific Livestock Company.
On June 28,1918, the William Hanley Company filed in the Circuit Court amended exceptions in which it claimed an earlier date of priority for certain of its lands than awarded it by the water board. After nearly all the testimony had been taken, but before the proceeding was referred by the court to the water board for the taking of further testimony, the William Hanley Company, on September 23, 1920, filed an amended claim setting forth earlier dates of priority than those in its original “statements and proofs of claims” for a large quantity of land. Certain proof with reference thereto was thereafter taken. This was done over the protest and objection of appellant Pacific Livestock Company. Notice of the “amended statement and proof of claim” was served upon the appellant Pacific Livestock Company and some twenty-five other claimants, but was not served upon all of the water users of Silvies Eiver.
The opinion of
Hough
v.
Porter,
51 Or. 318 ( 95 Pac. 732 , 98 Pac. 1083 , 102 Pac. 728 ), which has been a guide for several years, plainly indicates that a strict rule of pleading will not be invoked in suits in equity involving water rights. The suit in which that opinion was rendered was instituted prior to the enactment of the present Water Code, and it would seem that a stricter rule would prevail in regard to pleadings in a suit of that nature than would be invoked in presenting statements and proof of claims in an adjudication under the provisions of the Water Code. A liberal rule should be adopted in permitting such amendments. The court had jurisdiction of the whole matter by virtue of a compliance with the statutory requirements in regard to serving notices
*93
upon the water users upon the Silvies River and its tributaries, which is analogous to the serving of a summons in an ordinary action or suit; and the amendments in question did not involve a jurisdictional question. It is apparent from the record that the Pacific Livestock Company in urging the invalidity of the amendment made by another claimant, is also suggesting a criticism upon its own procedure, from which procedure it obtained a very substantial benefit.
The parties or claimants had an opportunity to introduce proof relating to the amendments made. Considerable testimony was taken after such amendments. All, or nearly all, of the water users were represented in court by their attorneys. If a claimant had conceived that his rights had been prejudiced by virtue of the allowance of the amendments and had made an application to be heard in objection thereto or had desired to offer further proof affecting the amendments as pertaining to his rights, then under such circumstances, a different question would be presented to us for consideration. Under all the circumstances, as shown by the record, the amendment of the claim of ¥m. Hanley Company should be allowed.
The Pacific Livestock Company also filed an amended claim embracing several hundred acres of land not included in its original claim and was awarded a water right for a large acreage of land comprised in the increase. The amended claim of the Pacific Livestock Company was not served upon the other claimants. The amendments in the present proceedings were influenced by the following:
It appears that the water board, in the trial of this proceeding, adopted as a general rule the granting of a priority based upon the. first use of land that was
*94
naturally overflowed. During the progress of the proceedings, this court rendered an opinion
In re Willow Creek,
74 Or. 592 ( 144 Pac. 505 , 146 Pac. 475 ); 25 P. C. L. 1004. In that case one claimant was the owner of a large body of, and filed its claim for, certain lands, by virtue of an appropriation, and other lands by virtue of riparian ownership, and also a claim for 292.02 acres on lower Willow Creek, where the channel of the stream disappeared and which area naturally overflowed during the freshet period.
In that case it was said:
“The overflow of these lands is analogous to a crude manner of irrigation much the same as the method adopted by other irrigators on this stream system at an early day, when they cut ditches and allowed the water to flow into the sloughs and low places and subirrigate their lands. It is unimportant how difficult or with what ease water can be appropriated for irrigation. It is tantamount to a beneficial use and is a valuable right which should not be ignored. The methods relied upon by the Pastern Oregon Land Company in the use of water, as well as similar use made by other irrigators in former years, is wasteful. It is often permitted as a privilege and not as a right, while it can be exercised without injury to anyone.”
Subject to certain provisions the Pastern Oregon Land Company was awarded a water right for the 292.02 acres. With an early date of priority of 1867 subject to certain rights, since acquired by adverse user and the like, antagonistic thereto, this right was left indefinite for the reason the record did not clearly disclose what rights had been acquired by adverse user and the like.
In the case of
Eastern Oregon Land Co.
v.
Willow River Land & Irr. Co.,
201 Fed. 203 (119 C. C. A.
*95
437), a similar question was before tbe federal court, and we think the case involved the identical 292.02 acres. The following language of the opinion, found on page 215, indicates the findings of the court:
“We are of the opinion, therefore, that the complainant has a prior right in the natural flow of the creek to the extent of its accustomed beneficial use of the water upon this land, and we find that this prior right is not only a vested right under the law, but that it is practically conceded by the admissions contained in defendant’s answer in this action.”
As bearing upon another feature of the present case, after referring to the Water Code of Oreg’on, L. O. L., §§ 6594 to 6672, as providing a system for the regulation, control, distribution, use, and right to the use of water and for the determination of existing rights thereto within the State of Oregon the federal court recognizes and practically invokes the exercise of our Water Code, and adjudication like the present proceedings, by the following order found at page 218 of the report:
“The decree of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion, and subject to such proceedings as may be had by the state board of control within its jurisdiction with respect to the rights of the parties herein to the waters of Willow creek. ’ ’
In
McCall
v. Porter, 42 Or. 49, 55 ( 70 Pac. 822 , 71 Pac. 976 ), Mr. Justice R. S. Bean said:
“If land be rendered productive by the natural overflow of the water thereon, without the aid of any appliances whatever, the cultivation of such land by means of the water so naturally moistening the same, is a sufficient appropriation of such water, or so much thereof as is reasonably necessary for such use.”
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See, also,
Cascade T. Co.
v.
Empire Co.,
181 Fed. 1011 ;
Thomas
v.
Giraud,
6 Colo. 530, 533 ;
Larimer County R. Co.
v.
People,
8 Colo. 614 ( 9 Pac. 794 ).
In
Utt
v.
Frey,
106 Cal. 392, 396 ( 39 Pac. 807 ), concerning such an appropriation, the court said:
“If nature * * has furnished the medium of appropriation he may avail himself of the gift.”
When Wm. D. Hanley testified in regard to the first construction of artificial works for the purpose of irrigating the land, for which his company now claims a water right, he testified upon the information gained from others, giving the date of the construction of a dam in the river in 1888.
Wm. D. Hanley and his brother, E. B. Hanley, were partners in business, running cattle in Rogue River Valley, southern Oregon. From 1879 to 1883 they drove cattle from southern Oregon to Harney Valley, and W. D. Hanley was there in Harney Valley a portion of the time until 1883, when he returned to southern Oregon where he remained until 1893, except for occasional visits to Harney Valley; so that he was not in Harney Valley during the first few years of the irrigation period. E. B. Hanley, the brother, came to Harney Valley in 1880. He first settled upon land in Section 21, Tp. 23 S., R. 31 E., W. M., in 1883. The land was flat or level and was overflowed from the river and from Whiting or Foley’s Slough, and in 1884 they cut about. 600 tons of hay. In 1885 they cut about 2,500 tons and sold “something like 1,500 or 1,700 tons to Todhunter & Devine, who were big land and cattle owners of the country -at that time.” From this sale of hay and from the other testimony, we take it that Todhunter & Devine were paying special attention to the raising of stock, and not so
*97
much attention in proportion to fanning as the Hanleys did during the early days. At that time there were no fences in the country and the stock were herded off of the hay lands. In 1885 the Hanleys dammed the slough that runs through the School section into Section 21 and also Whiting Slough (Foley Slough) and constructed small ditches and spread the water over the land. These dams were temporary in construction and accounts for the witness dating the construction of the dam in 1888.
He testified on rehearing, after the court had referred the case for the taking of further testimony pursuant to the statute. In 1886 they did fencing and constructed more dams and ditches and enlarged the dams until 1887 or 1888. The land was surveyed by the government in 1883 and E. B. Hanley filed his pre-emption claim in 1884, soon after the land was open to settlement. In 1886 they constructed a ditch six to eight feet wide from the river in Section 21, across a portion of Sections 21 and 23, Tp. 23 S., R. 31 E., W. M., as far as Foley’s slough, and built a dam in the slough. In 1887 they put in the first permanent dam. The Hanleys purchased some of the land from other settlers who settled on the laúd soon after the date of E. B. Hanley’s settlement and purchased some of it from the wagon road company. The Hanleys endeavored to obtain title to some of the land as swamp-land about 1885 and occupied the same as such. Afterward they purchased the land from the road company. E. B. Hanley, in his testimony, gave the details of the early settlement of the other portions of the land, The testimony shows that the Hanleys made a beneficial use of the water of Silvies River for the irrigation of large tracts of land before 1886.
*98
The dates of relative priority awarded by the court to the William Hanley Company are affirmed.
Harney Valley Dam, Ditch and Irrigation Company.
The appellant, Pacific Livestock Company, assigns error in awarding the claimants who are water users from the Harney Valley dam, Ditch & Irrigation Company ditch a priority of 1886, instead of 1888, for 1,513.13 acres of land. As we understand the brief of the learned counsel for this appellant, the only question raised involves the doctrine of relation. It appears from the record that in the fall of 1886 three men, T. A. McKinnon, Sam King and A. J. Wilson, contemplated an organization of the company, and that these men posted a notice of, appropriation of water at the point of the proposed diversion in the fall of 1886, and during the same season did some work of plowing and scraping and commenced the construction of a dam. In 1887 the company was organized as a corporation under the laws of the State of Oreg’on. It was organized for the purpose of irrigation and power. The original incorporators were T. A. McKinnon, Sam King and A. J. Wilson. The parties interested in the creation of the corporation were men who had land in the vicinity of where the corporation was to construct the ditch for irrigation purposes. It was for the purpose of enabling the various owners of land to have a system that would serve áll of them. The first work done by the company itself was in the fall of 1887. One ditch was built on the west side in 1889 and another which leads from a point in the southeast of the southwest quarter of Section 23, southeasterly to the southeast quarter of Section 26, was constructed in 1890. It is asserted by the irrigation company that the corporation owns
*99
the system for the benefit of its stockholders, naming them, and. that each of them “has filed or are filing separate claims thereto, referring to this claim for the details of appropriation and use, they being the users of the water and owners of the land irrigated therewith.” The proceedings were all a part of the same transaction and done for the purpose of obtaining one result: See 3 Farnham on Water Eights, 2060, § 666. The corporation was the mere agent of the water users for the purpose of serving their several interests:
Hildreth
v. Montecito, 139 Cal. 22, 29 ( 72 Pac. 395 );
Oregon Const. Co.
v.
Allen Ditch Co.,
41 Or. 209 ( 69 Pac. 455 , 93 Am. St. Rep. 701 ).
It is objected by appellant that the incorporators signed the notice of appropriation, and that the corporation did not. In the “statement and proof” of claim of the company, it is stated the stockholders of the corporation, naming them, respectively own and irrigate land with the water claimed for them by the company and that “the corporation holds the legal title to the waters and system aforesaid, in trust for its stockholders,” but each stockholder holds his land in severalty and the appurtenant right to the use of the necessary amount of water appropriated, as well as the irrigating system, and “it will appear that the water and system is owned by the stockholders in the name of Harney Valley Dam, Ditch & Irrigation Company, and that the right to the use and maintenance of it is appurtenant to each respective tract of land; and that such rights date back to the initiation of the said appropriation and that the waters have been used thereon for irrigation ever since.” Here follows a list of stockholders and water users and the number of acres of their respective lands. Each of the stockholders of the corporation and water users
*100
from the Harney Valley Dam, Ditch & Irrigation Company ditch filed separate and individual claims to the water conveyed by the company ditch to their respective lands, referring to the claim of the company and stating that they are each stockholders in the corporation.
The water board in its findings of fact and order of determination, and the Circuit Court in its findings of fact and decree, in tabulating the water rights listed the same under the name of the Harney Valley Dam, Ditch & Irrigation Company, a corporation, describing each separate body of land as owned by the respective stockholders. The objection made by the appellant is one of form and not of substance. It should be remembered that this appropriation was initiated and consummated prior to the enactment of our present Water Code and before the enactment of the Water Law of 1891, at the time when the statute of this state did not prescribe the kind of notice of appropriation and appropriators of water usually followed the custom of miners in proceedings of this nature, which was recognized by the courts.
As to the real owner of water rights and ditch rights, even after the enactment of the Water Code, Mr. Justice Bennett in the case of
Eldridge
v.
Mill Ditch Co.,
90 Or. 590, 596 ( 177 Pac. 939 ), a case which involved a mutual water company, organized under the General Corporation Laws, where it appeared that the corporation did not sell water but merely carried it, declared the law in the following language:
“It seems to be pretty well settled in the states •having Water Codes similar to that of our own state, even in cases of public service corporations organized for profit and selling water to the general public, that the water and ditch rights really belong to the individual appropriator and are appurtenant to the lands
*101
upon which the same are used, and that the corporation transmitting the same is in the nature of a holding company or agent for the true owners of the water rights.”
The same principle is enunciated by Mr. Justice Burnett in
In Re Grande Ronde River,
113 Or. 211 ( 232 Pac. 626 ), and we think it is applicable to the present question. We quote from the opinion as follows :
“There were other appropriators using water from the same river, and, for the purpose of the better and more efficient enjoyment of their appropriations, they formed a company to maintain a ditch and deliver to them the water of their several appropriations. * * it was an instrumentality whereby the appropriators used and enjoyed their appropriations. * *
‘ ‘ The evidence is plain that, in the origin of affairs in that country, Gekeler’s and Grout’s predécessors appropriated water, and that the pseudo corporation first devised, and the Irrigation Canal Company were instrumentalities fashioned for the enjoyment of those appropriations. So far as that is concerned, the appropriators might have employed men to haul the appropriated water to their lands in water wagons; they might have dug a ditch and discarded it and in its place installed a water-tight pipe line, or, as they did, they might have formed a corporation to serve the same purpose.”
In the enactment of the statutes, governing the method of the appropriation of water, the pre-existing law is substantially declared. Before the Code, notice was a requisite, but it did not have to be written notice, nor, consequently, did it have to express the present required details. Acts such as would put a man on inquiry, some unequivocal outward acts, such as making a preliminary survey, as declared in 1 Wiel on Water Bights (3 ed.), 344,
*102
§ 269, were notice enough. It was the custom, however, to post a written notice even before the Code.
In regard to a form of a notice of appropriation before the statute and under the early statutes, it is stated in 2 Kinney on Irrigation (2 ed.), § 711, thus:
“All that was considered necessary was that the terms of the notice should be sufficient to put
a
reasonably prudent man upon inquiry as to the rights claimed by the party posting it. Such notices were admissible in evidence, should there be litigation over the water right claimed under them, and were liberally construed in favor of the party claiming rights under them.”
The notice here under consideration was sufficient to inform a subsequent appropriator of the locality intended for the diversion of the water, the name o.f the stream from which the appropriation was to be made, the amount of water claimed to be appropriated ' and the purpose of the appropriation. The corporation was not then in existence. The notice was signed by three of the intending incorporators. In the absence of any statutory requirement, as to such a notice of appropriation we think the notice posted, filed and recorded was sufficient. The real parties in interest and owners of the water rights and ditch rights are the various water users of water from the ditch of the company who are also stockholders of the corporation:
O’Neil
v.
Twohy Bros.,
98 Or. 481 ( 190 Pac. 306 ). It would seem to be immaterial at what stage of the proceedings the water users, ór real appropriators, employed or organized a corporation as an instrumentality in constructing a ditch as a means of conveying to their lands the water which they were in this manner attempting to appropriate, and to which they afterward secured a
*103
complete right. A court of equity will look beyond the form .of the proceeding and if possible consider the substance of the right.
All parties were warned of the appropriations and put upon inquiry by the notice posted. The construction of the ditch having followed within a reasonable time and the water having been applied to a beneficial, use with due diligence and in a time within reason, the right relates back to its inception at the date of the posting of the notice.
The decree of the Circuit Court, fixing the date of priority for the various tracts of land of the claimants using water from the Harney Valley Dam, Ditch & Irrigation Company ditch as 1886, is affirmed.
Lena B. and Mary Harkey Claims.
Lena B. Harkey was awarded a water right for the southwest quarter of Section 6, Tp. 23 S., R. 31 E., W. M., with a date of priority of 1886. The Pacific Livestock Company, the appellant, assigns error claiming the date should be 1910. Mary J. Harkey was awarded a right of 160 acres in Section 6, Tp. 23 S., R. 31 E., W. M. Error is assigned in making a date of priority of 1886 instead of 1888. The lanjd of Lena B. Harkey was formerly owned by George Stanclift. It was irrigated from the old Stenger dam built in 1885, which was afterward washed out. The Sweek dam was afterward built in 1907 and replaced in 1910.
The Mary J. Harkey land is irrigated from the present Harkey-Dixon ditch. Part of this tract and the Lena B. Harkey tract are subirrigated from the back waters caused by the Sweek dam. The appellant asserts that Lena B. Harkey did not own an interest in the Stenger dam. In 1910 Mr. Sweek made an
*104
agreement with Mary J. Harkey and George Stanclift, predecessor of Lena B. Harkey, whereby all the parties were granted an interest in common in the dam. The testimony shows that the land was sub-irrigated by the back waters of the Stenger dam for about 12 years.
- The title to the dam seems to be the only question raised. This land was irrigated in about the same manner as the land of other claimants. For the reason stated, in regard to various other claims, the award of the date of priority of 1886 to Lena B. Harkey and Mary J. Harkey is affirmed.
Harney Valley Improvement Company.
The appellant assigns error in awarding the Harney Valley Improvement Company a priority of 1887 for 320 acres of land in Section 15, Tp. 23 S., R. 31 E., W. M., instead of a priority of 1890.
it appears from the testimony of William D. Hanley, president of the claimant company, that this company obtained title to the land about 1908; that the land was originally irrigated by means of overflow from Foley’s slough. In recent years ditches were constructed on the north line, the ea.st line and the west line. The land is under contract to the McLaren brothers. There are two branches of Foley slough which run through the land and join near the center of Section 15 where the slough commences to raise to the top of the ground. A pioneer diversion had been made there in 1893 when Mr. Hanley returned to that part of the country. There was a squatter on the place until some time in the nineties. The land was fenced in the latter part of the eighties or the first part of the nineties. The testimony is rather indefinite.
*105
It appears that the date of relative priority for this land should be changed from 1887 to 1890. It is so ordered.
The right of a person claiming an appropriation of water cannot be tacked on tp that of a mere squatter who, while he may have irrigated the land, has abandoned it and has not transferred his interest in the land or irrigation works to the claimant or his predecessors:
Low
v.
Schaffer,
24 Or. 239 ( 33 Pac. 678 );
Hough
v.
Porter,
51 Or. 318, 421 ( 95 Pac. 732 , 98 Pac. 1083 , 102 Pac. 728 ).
Error is also assigned in awarding the Harney Valley Improvement Company a priority of 1883 for 640 acres in Section 19, Tp. 23 S., R. 31 E., W. M., instead of a priority of 1886. It appears that this land was leased by a settler from the Willamette Valley and Cascade Mountain Wagon Road Company in 1883. At first it was irrigated by overflow from the river and a little later by means of dams, ditches and subirrigation. The section consists of meadowland and has been cropped ¿nd irrigated ever since 1883. The award of the date of priority of 1883 for this section is therefore affirmed.
Hull Hotchkiss Claim.
The appellant, Pacific Livestock Company assigns errors—-(1) In awarding Hull Hotchkiss a priority of 1886 for 150 acres of land in Section 30, Tp. 23 S., R. 31 E., W. M., instead of a priority of 1887 and a priority of 1886 for 160 acres of land in Section 32, Tp. 23 S., R. 31 E., W. M., instead of a priority of 1888. (2) In awarding this claimant a priority of 1886 instead of 1889 for 130 acres of land in Section 32, Tp. 23 S., R. 31 E., W. M. The errors are claimed for the reason that Hotchkiss failed to file exceptions
*106
to the findings of the water board as to the date of his priority which the court changed. Neither the assignments of error nor the brief of appellant specifies or suggests that the finding of the trial court is wrong, or that the difference in dates awarded and the dates suggested by appellant is material. Those matters are left for speculation or for an examination of a very voluminous record. The only thing complained of is that the court arrived at its conclusion in an erroneous manner. It is not every error that will be examined by an appellate court, but only prejudicial errors which are pointed out with reasonable certainty. Section 5745, Or. L., prescribes the method of procedure in proceedings of this kind. Under the provisions of that section a claimant, in order to obtain a more favorable date of priority than awarded by the water board, should file exceptions thereto in the Circuit Court. For some reason, presumably in order to make the decree workable and uniform, the trial court considered the exceptions as filed and changed the dates of priority awarded to Hotchkiss. Section 5745 of our Code is to a certain extent directory. The strict rule invoked in regard to pleadings in a regular suit in equity should not be strictly adhered to when an assignment of error is considered upon an appeal in the matter of adjudication of water rights upon a stream system. More than fifteen years ago this court, in the case of
Hough
v.
Porter, supra,
at page 439 of the report, held, in effect, that the water suits are, in a sense,
sui generis.
Complications and many intricacies developed by litigation of this character necessarily give rise to new questions of practice. A stricter rule should be invoked upon an appeal in a case of this kind than
*107
upon the original hearing in the trial court. Appellant complains that the pleadings of Hotchkiss in the trial court although not forming a jurisdictional question were defective. It might be said that the assignments of error of the appellant, in regard to this matter, are not perfect. We decline to examine the assignments of error. The award of the dates of priority of Hull Hotchkiss is affirmed. Hull Hotchkiss alleges error in the reduction in the number of acres allowed by the water board as irrigated land. There appears to have been but little controversy in regard to the acreage. The difference seems to be of 39.29 acres in the award of land in Section 30, and Section 32, Tp. 23 S., R: 31 E., W. M. The map of the State Engineer shows that the land of Hotchkiss in the two sections mentioned is irrigated. Mr. Hotchkiss lives on Section 30 and states that he owns the lands described in the other section.
The evidence warrants the allowance made by the water board and the award is modified accordingly.
Pacific Livestock Company, Contestant,
v.
Jennie Jones, Contestee.
Jennie Jones filed her statement and proof of claim, claiming a water right for the NE. and the NE. % of NW. % and lots 6 and 7 of Section 17, Tp. 23 S., R. 31 E., W. M., claiming a right to the waters of Silvies River for irrigation and stock purposes, the initiation of which was in the spring of 1883. She asserts, in substance, in a supplemental statement, that the lands were actually irrigated from time immemorial by the annual overflow of Silvies River and its sloughs; that in the spring of 1883 her lands were irrigated to produce the first crop which was beneficially used; that the natural overflow was deemed suf
*108
ficient for the irrigation of the lands until 1890, when there was a water shortage and claimant’s predecessor in interest Milo Cushing, with others, constructed a dam in the river, known as the Newman dam, to divert the water for the land, as detailed.
The Pacific Livestock Company at the proper time filed a notice of contest, the gist of which, omitting the formal part and legal statement is, in effect, as follows:
The Pacific Livestock hereby contests the proof and claim filed in said matter by Jennie Jones on the following grounds: (1) “That the said claimant did not, at the time stated in said proof, appropriate any of the waters of Silvies River. (2) That the said claimant did not, at the time stated in said proof, appropriate the quantity of water by him claimed to have been appropriated. (3) That the said claimant never did appropriate, the water claimed by him to have been appropriated, or any part thereof.” The contestant refers to the decree of the federal court above mentioned, and avers that whatever rights the said claimant may have in the said waters are subject to the rights of this contestant, as set forth in s

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3838866. Public record. Not legal advice.